author: BARRY, Judge.

text:
    SUCCESSION OF Mrs. Bettye Jane SCHAUB, Wife of Stewart J. Buckley.
    No. CA-1510.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 6, 1984.
    Writ Denied Oct. 5, 1984.

      Andrew T. Martinez, Terriberry, Carroll, Yancey & Farrell, New Orleans, for appel-lee.
    Jerry J. Blouin, New Orleans, for appellant.
    Before GULOTTA, BARRY, WILLIAMS, JJ.
   BARRY, Judge.

In this succession proceeding a testamentary usufruct in favor of a surviving spouse infringes on the legitime. The trial judge properly ruled that under Civil Code Art. 1499 a forced heir must choose to suffer the impingement or abandon the disposable portion.

The decedent’s son, Stephen Chauvin, filed a petition for his legitime, alleging the impingement by a testamentary usufruct in favor of his stepfather over his mother’s separate property home. He elected under art. 1499 to receive his forced portion in full ownership, abandoning his share of the disposable portion. Chauvin amended his petition, asserting a provision in the will requiring immediate repayment of a mortgage note on the separate-property home from the residuary estate constituted an illegal “charge or condition” on his legi-time.

The amended petition also claims entitlement to his legitime now in full ownership without having to abandon his share of the disposable portion. He asserts there are sufficient assets remaining in the succession to satisfy his legitime without disturbing the usufruct over the home, but the provision requiring liquidation of the mortgage will exhaust the remaining assets, depriving him of his legitime. Thus, Chau-vin argues, the provision requiring payment of the mortgage is an illegal “charge or condition” in violation of C.C. Art. 1710 and should be stricken. He also contends the trial court undervalued the legitime through miscalculation of the succession assets.

The case was decided on a motion for summary judgment and the pertinent facts are not in dispute. Mrs. Buckley, Chau-vin’s mother, died testate in New Orleans on February 21, 1981. She is survived by two children: petitioner Chauvin and a daughter, Frankie Chauvin Ramonden , who are issue of her first marriage. The decedent is also survived by her second husband, Stewart Buckley, whom she designated as executor of her estate. The succession includes both separate and community property.

According to the amended sworn descriptive list the decedent’s net V2 interest in the community totals $5,058.71. The bulk of decedent’s estate is separate property and includes her home on State Street in New Orleans, V2 interest in Bayou Lacombe real estate, equity in the Jarrett estate in Texas, and movables.

The original descriptive list itemizes the separate property:

ASSETS
$102,100.00 2636 State St.
22,500.00 Bayou Lacombe property
13,150.00 Jarrett Estate
4,225.00 movables
$141,975.00 total separate assets
DEBTS
$ 39,751.66 mortgage on 2636 State St.

The amended descriptive list increased the value of the separate movables to $9,532.25. The amended list also increased the value in the Jarrett estate and the Bayou Lacombe property by $2,132.08. These increases were not reflected in the trial court’s calculations of the legitime and disposable portion, and appellant assigns this alleged oversight as error.

By brief, however, Chauvin asserts his legitime was undervalued because “[n]either the increase in the Bayou Lacombe property value or the Jarrett estate is attributable to increase in value after death. They are both merely amendments of the date of death value.”

Chauvin does not explain why the increases did not occur following decedent’s death. The executor argues the small increase in the Jarrett estate represents interest from investments, etc., which accrued after the testatrix’s death and should not be included in calculating the legitime. Similarly, he suggests the increase in the Bayou Lacombe property may also represent post-death appreciation. Since the record does not resolve this question and the trial court expressly deferred a final accounting and homologation until after resolution of the legal issues, we remand this issue.

For the purpose of dealing with Chau-vin’s primary complaints we will use the higher valuations. The date-of-death value of the succession assets, less debts (including the home mortgage) is $116,852.16. With two forced heirs the legitime of each child is ¼ or $29,213.04.

Mrs. Buckley bequeathed to Mr. Buckley her half of their community property. She also gave her husband the usufruct for life of her State Street home with all its furnishings, excluding a few items which were subjects of particular legacies. The will then provided “subject to the foregoing special bequests and usufruct, I leave the balance of my estate to my two children, Frankie and Stephen, share and share alike.”

The will further provides:

“I am the co-owner with my sister of a house and land on Bayou Lacombe in St. Tammany Parish. In the event of my death, I instruct the executor of my estate to sell my interest in that property and to apply the proceeds from such sale to the mortgage presently existing on my home at 2636 State Street. I am also a legatee of the Jarrett estate presently pending in Houston, Texas and I instruct my executor to apply any inheritance received after my death from this estate to any balance remaining on the mortgage of my home at 2636 State Street, it being my desire to have that mortgage liquidated in full before my heirs and usufructuary are put into possession of my estate.”

Chauvin claims the usufruct and provision requiring liquidation of the mortgage are “prohibited conditions on the rights of the legitimate heirs.” We agree with the trial court’s finding that the usu-fruct over the State Street home constitutes an impingement on the legitime. Under LSA-C.C. Art. 1710,

“[N]o charges or conditions can be imposed by the testator on the legitimate portion of the forced heirs.”
Art. 1499 provides:
If the disposition made by donation inter vivos or mortis causa, be of a usufruct, or of an annuity, the value of which exceeds the disposable portion, the forced heirs have the option, either to execute the disposition or to abandon to the donee the ownership of such portion of the estate as the donor had a right to dispose of.

Our courts have consistently held that, except when specifically authorized by statute, a testamentary usufruct which deprives a forced heir of his right to receive his legitime “free and clear” is illegal. Succession of Hyde, 292 So.2d 693 (La.1974); Succession of Ramp, 205 So.2d 86 (La.App. 4th Cir.1968). As the court declared in Succession of Hyde, at 696:

For all its mystic and constitutional fervor, forced heirship is nothing more than the right of descendants or ascendants to a fixed portion of a person’s estate. Articles 1493, 1494, 1495. But forced heir-ship is a right to a fixed portion of the estate in property (articles 1493, 1494), on which “no charges or conditions can be imposed by the testator.” Article 1710. As has been correctly noted, the import of these articles is that the legi-time must be in full ownership. Lazarus, supra at 194.

The proceeds of the Bayou Lacombe and Jarrett properties are insufficient to pay off the mortgage. The only remaining asset, other than the property subject to the usufruct, is the decedent’s $5,620.53 net interest in the community property, which is insufficient to satisfy two legi-times of $29,213.04 each. Thus, the testamentary usufruct unlawfully burdens the forced portions.

This exact situation was foreseen by the drafters of our Civil Code by providing the Art. 1499 remedy. The Supreme Court said in Succession of Hyde at 697:

A special rule has been placed in the Code to allow the forced heir his legitime when it has been burdened by a usufruct. Under article 1499, the forced heir has the option “either to execute the disposition or to abandon to the donee the ownership of such portion of the estate as the donor had a right to dispose of.” This article has been in the Codes of Louisiana since 1808 and does no violence to the institution of forced heirship as it preserves to the forced heir his legitime free of the offending usufruct. However, it is preserved for him at no small cost, i.e., the abandonment of the disposable portion in full ownership. It is clear beyond any doubt that the redactors of the Code intended to allow a usufruct to burden a legitime, but at the same time they gave effect to the right of the forced heir to receive his legitime free of the usufruct. Of all the charges and conditions a testator could devise to place on the legitime, only the usufruct is sanctioned. And then it is sanctioned at the option of the forced heir for he can always take his legitime free of the usu-fruct by abandoning to the donee the disposable portion in full ownership. Such is the price which must be paid for frustration of the testator’s will in this regard.

Chauvin’s initial petition acknowledged the art. 1499 option and expressed his willingness to forego his rights to the residuary estate in exchange for immediate possession of his forced portion unencumbered by the usufruct. However, by his amended petition and in this appeal, he would prefer to suffer the usufruct and have the clause requiring payment of the mortgage stricken. He argues the art. 1499 option applies only to usufructs and annuities which burden the legitime and under Art. 1710 any other “charge or condition” should not be given effect.

Appellant claims if the proceeds of the Bayou Lacombe and Jarrett estates are applied to the mortgage there will be insufficient means available to pay his legitime in full ownership; thus, the mortgage payment clause is a prohibited charge on his legitime. We disagree. If the liquidation provision is enforced, the primary debt (mortgage) of the succession will be greatly reduced and the forced heirs’ equity in the home will be increased. Application of the Jarrett and Bayou Lacombe proceeds to the mortgage will not affect the value of the succession or the amount received by the forced heirs. It will affect the time when the forced heirs receive their shares. Chauvin contends there is only an incidental relationship between the liquidation clause and the usufruct; however, the basis for his claim is that the succession property will be tied up by the usufruct.

Chauvin cites numerous codal articles and cases regarding the discharge of succession debts. Article 1415, the first arti-' cle in Title I, Chapter 13 “Of the Payment of the Debts of a Succession,” provides:

The provisions contained in this chapter relating to the manner in which heirs, or other universal successors, are bound to contribute to the payment of debts, does not prevent the contribution from being otherwise regulated by the agreement of the parties, or the will of the testator, provided that by the dispositions made by the testator in this respect, the rights of the forced heirs are not prejudiced.

With regard to the payment of a mortgage on a succession asset, Art. 1638 provides:

If prior to the testament or subsequently, the thing has been mortgaged by the testator for his own debt ... he [the executor] who is to pay the legacy is not bound to discharge the thing bequeathed of the encumbrance unless he be required to do it by an express disposition of the testator.

The testatrix clearly directed that proceeds from the Bayou Lacombe and Jarrett properties be applied to the mortgage on State Street. She specifically expressed her “desire to have that mortgage liquidated in full before my heirs and usufructuary are put into possession of my estate.”

The decisions interpreting art. 1638 all confirm the propriety of this instruction. In Succession of Waterman, 298 So.2d 731 (La.1974), the Supreme Court held that a testamentary provision requiring “that all my just debts ... be paid out of my residuary estate” was broad enough to require payment from the residuary estate of an encumbrance by mortgage on separate property. See also Succession of Sinnott, 3 La.Ann. 175 (La.1848), and Succession of Rabasse, 47 La.Ann. 1126, 17 So. 597 (La.1895). This separate debt of the decedent was therefore subject to her testamentary decision as to its reduction or discharge, and the suggestion in Chauvin’s brief that “the choice belongs to the person bound to discharge the mortgage” is not correct in view of the specific instructions by the decedent. Appellant’s reliance on Succession of Sinnott, supra, is misplaced, in that it held, “... even were the devise of the usufruct to be considered a special legacy, the heir would not be bound, in the absence of any express provision in the will to that effect, to discharge the mortgage.” (emphasis ours).

Succession of Waterman, supra, in holding a provision that “all just debts and all taxes be paid from the residuary estate” required payment from the residuary estate of a debt secured by mortgage on property bequeathed to a special legatee, specifically noted:

As a general rule, succession debts must be paid from residuary assets, (citations omitted). The Louisiana Civil Code, however, lays down a special rule as to mortgages bearing upon property included in a bequest.
[citing Art. 1638]
In interpreting a will, the court is primarily concerned with ascertaining the intention of the testator, without departing from the proper signification of terms of the testament, (citations omitted). The basic question is what did the testator mean by what he said, (citations omitted).
Here, the testatrix said: “I direct that all my just debts ... be paid out of my residuary estate.”
The language of the will is broad and unqualified. It is sufficiently broad, in our opinion, to include secured debts. Unsecured debts are taken from the residuary estate by operation of the law. Hence, unless the provision includes secured debts, it adds nothing to the will. Under familiar principles, courts seek to give meaning to all of the testamentary language and to avoid interpretations that render the language meaningless or reduce it to surplusage, (citations omitted).
A construction that the testamentary direction includes payment of the mortgage debt from the residuary estate is fortified by another provision in the will. In the third paragraph, the testatrix directs that all taxes be paid from the residuary estate. See LSA-R.S. 9:2432. The provision lays bare the intention of the testatrix to minimize the financial burden of the special legatees.

We find no prohibition in the testatrix’s stipulation. Under C.C. art. 1499 Mr. Chauvin can choose to suffer the usu-fruct or assert his claim for Vs interest in the succession and abandon his interest in the disposable portion.

The judgment is affirmed and the case remanded.

AFFIRMED AND REMANDED.

      . The daughter has not petitioned for her legi-time or challenged the testament.

      . See LSA-C.C. Art. 1505.

      . At the time of the testatrix’s death, LSA-C.C. Art. 916.1 provided that a legal or testamentary usufruct in favor of the surviving spouse over the decedent’s share of a community property family home would not be considered an impingement on the legitime. However, this exception did not apply to a usufruct over a separate property home in favor of a surviving spouse who is not the parent of the forced heirs. Art. 916.1 was amended by Act 919 of 1981, which extended the exception to a separate-property home inhabited by the spouses prior to death occurring after December 31, 1981; however, since Mrs. Buckley died in February of 1981, the usufruct in question would be illegal if it burdens appellant’s legitime.

      . The executor (also the usufructuary) argues the usufruct is not an impingement on the legi-time because the commuted value of the usu-fruct, under the Louisiana inheritance tax tables, is less than the disposable portion of the estate. Since the executor has not answered Mr. Chauvin's appeal, that issue is not properly before this Court. However, we note the same issue was decided in favor of the forced heirs in Fontenot v. Fontenot, 339 So.2d 897 (La.App. 3rd Cir.1976), writ refused 342 So.2d 217 (1977). Relying on Succession of Hyde, supra, Fontenot held that, while “a literal reading of C.C. 1499 would seem to support said position”, under Hyde, "a forced heir need not prove that the value of the usufruct impinged upon his legi-time in order to make the election provided for in C.C. 1499.” The Fontenot opinion reiterated that “Under the doctrine of the Succession of Hyde, supra, these heirs have an absolute right to make such a choice without any showing whatsoever of the value of the usufruct.”

      . We note that appellant’s sister (the other forced heir) has not joined in this action. While we disagree with appellee’s assertion that an election under Art. 1499 may be made only by all the forced heirs jointly, see Fontenot v. Fontenot, supra, this Court is aware that his sister’s decision not to make such an election will substantially reduce the attractiveness of the option to appellant. If appellant alone chooses to receive his legitime now, Mr. Buckley will continue to enjoy the usufruct over Mrs. Ramaden’s ½ interest in the home, and will also receive a ¼ interest in the home in full ownership (the share of the disposable portion abandoned by appellant). Thus, appellant will be co-owner, with his stepfather and sister, of a house still partially burdened with a usufruct. While appellant, as a co-owner, would have the right to demand a partition, the dubious marketability of a home burdened with a partial life usufruct would drastically diminish the viability of the Art. 1499 option for appellant.


source: Caselaw Access Project

author: LOBRANO, Judge.

license: Public Domain

text:
    SELECT PROPERTIES, LTD. v. Peter RANDO and Anna Perigoni, d/b/a Rando’s Bar & Game Room.
    No. CA-1606.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 6, 1984.
    Rehearing Denied Aug. 24, 1984.
    Jacques A. Sanborn, Daniel L. Dysart, Fernandez & Dysart, Chalmette, for appellant.
    Marcel J. Gueniot, Chalmette, for appel-lees.
    Before SCHOTT, LOBRANO and WARD, JJ.
   LOBRANO, Judge.

An eviction rule was brought by Select Properties Ltd., the managing partner of Cinema Center Partnership, (lessor), against Peter Rando and Anna Perigoni d/b/a Rando’s Bar and Game Room (lessee). The trial court held that lessees were not in default of the lease, and lessors have perfected this appeal.

On November 13, 1979, lessees entered into a lease agreement for certain space in a shopping center located in St. Bernard Parish in order to operate a lounge and game room. The shopping center on which the leased property is located was later sold to Cinema Center Partnership, the current lessor, who acquired through assignment the rights to all leases of the tenants within the shopping center. Lessor, through its managing partner, Select Properties, LTD., sent a letter to lessees on June 10, 1983, requesting evidence of public liability, property damage, fire and extended coverage, and workmen’s compensation insurance as per Article 17.1 of the subject lease.

Specifically the letter stated in pertinent part:

“On page 4 Article 17.1 of your lease requires you to at all times maintain in full force an insurance policy of public liability, property damage, fire and extended insurance coverage with respect to the leased premises, the air conditioned walk, and the side walk in front of your business. Please provide us with a certificate of insurance naming Cinema Center Partnership and Select Properties, Ltd., as additional insured for the amount stated in Article 17.1. Also we need a copy of your workmen’s compensation policy as stated in the same Article.
Failure to comply with these requests in time allotted by the lease, will subject the lessee to the remedies provided for under the terms and conditions of the lease.
If there are any questions please do not hesitate to call us at 455-5454.”

Lessees received the aforementioned letter on June 14th and testified at trial they sought to comply with its terms by attempting to obtain the requested coverage and certificates of insurance from their insurance agent.

On July 13, 1983 having not yet received the evidence of insurance requested in the June 10th letter nor having been informed of any attempt being made by lessee to obtain such insurance, lessor had a notice to vacate the premises served, and put lessee in default of the lease. Lessee admits that as of that date (July 13, 1983) the requested coverage had not yet been obtained and that no certificates of insurance or binders had been sent to lessor. They argue however, that their good faith effort to obtain such evidence and coverage should estop lessor from placing them in default.

The record reveals that on the date of trial, lessor was given evidence of workmen’s compensation insurance, and evidence of it being named as a lost payee on the general liability policy. The effective date of the policy however was after the 15 day grace period provided for in the lease.

The pertinent provisions of the lease agreement are as follows:

Article 17.1
“For the mutual protection of Lessor and Lessee, Lessee agrees to at all times maintain in full force a policy of public liability and property damage insurance with respect to the leased premises, the air conditioned walk or the sidewalks in front of and business operated in the leased premises in the minimum amounts of $100,000 per person, $300,000 per accident and $50,000 for property damages. Further Lessee shall, at its expense, maintain fire and extended insurance coverage in an amount adequate to cover the cost of replacement of all fixtures, contents, decorations and improvements installed by Lessee or which Lessee is obligated to maintain and replace. All policies of insurance will name Lessor, and mortgagee, person, firm or corporation designated by Lessor, and Lessee as insured, and shall contain a clause that the insurer will not cancel or change the insurance without first giving Lessor thirty days’ written notice. Lessee waives and each policy shall also contain a waiver of subrogation of the insurer against Lessor for any reason whatsoever. The insurance shall be approved by Lessor and a copy of the policy or a certificate of insurance shall be delivered to Lessor. Lessee shall, at Lessee’s expense, maintain a workmen’s compensation policy in the minimum amount necessary to meet the requirements of any applicable workmen’s compensation act, and a copy of the policy or a certificate of insurance shall be delivered to Lessor.”
Article 27.1 provides in part:
“Any of the following shall constitute a default by lessee: (a) failure to pay any rental or additional rental, provide the insurance required by this lease, (emphasis ours), pay the premiums for such insurance ... (b) any violation at any time of any other condition of this lease if such violation continues for fifteen days after written notice of such violation is mailed by lessor to lessee ...”

A lessor’s or lessee’s failure to fulfill the obligations of their lease contract may give cause for its dissolution and the trial judge cannot order any delay of its dissolution. La. C. C. Art. 2729. It is well established in our jurisprudence that the lessor possesses the right to rescind a contract of lease for the breach of one of its covenants despite the fact that he may not sustain any loss by its breach. Acosta v. Hotard, 274 So.2d 859 (La.App. 4th Cir. 1973). Also, the fact that the lessor may not have required the lessee to maintain each and every item required under the lease does not estop him from enforcing same where his actions did not mislead or prejudice the lessee. Chevalier v. Duvigneaud, 292 So.2d 779 (La.App. 4th Cir. 1974).

It is clear to this Court that lessees, at the time they received the June 10, 1983 letter were not in compliance with the insurance requirements of the lease. It is also clear that on July 13, 1983, the date of the eviction notice, lessees still were not in compliance. Once the notice was given, this Court is of the opinion that lessees had fifteen days within which to comply. Failure to do so resulted in a breach of the lease for which lessor could seek cancellation. See, Ernst Food Mart, Inc. v. Jackson-Atlantic, 405 So.2d 1272 (La.App. 4th Cir.1981), where lessees failure to comply within ten days resulted in a breach of their lease. We find the language expressed in Chevalier v. Duvigneaud, 292 So.2d at 781, 782 to be appropriate in this case, and we quote as follows:

“... the lessor sent the lessee a written notification of the specific violation and gave him the 15 day period, that had been agreed on when the lease was executed, in which to furnish evidence of insurance coverage. Thus, the lessor did everything that was required of him under the lease. If the lessee had furnished evidence of insurance coverage within the fifteen day period, the lease could not have been cancelled on those grounds just as it could not have been cancelled if the Lessor had not given the fifteen day notice required by the lease.... When the Lessor decided to specifically enforce the provisions of the lease, he acted in accordance with the procedure set forth in the lease and the lessee’s failure to secure the insurance coverage within the specified period cannot be attributed to any fault on the part of the lessor.”

Lessee argues that its good faith efforts to obtain the required insurance should prevent cancellation of the lease on an equity basis and that the doctrine of judicial control should apply. We disagree. Judicial control is an equitable doctrine by which the courts will deny cancellation of the lease when lessee’s breach is of minor importance, is caused by no fault of his own, or is based on a good faith mistake of fact. See, Atkinson v. Richeson, 393 So.2d 801 (La.App. 2nd Cir.1981); Brewer v. Forest Gravel Co., 172 La. 828, 135 So. 372 (La.1931). The provision of the lease requiring various types of insurance is not of minor importance but is a major factor in maintaining the lease. The testimony of lessor’s representative convinces us of that fact. Furthermore, the record is clear that lessor did everything that was required of it under the terms of the lease, and lessee failed to comply.

Accordingly the judgment of the lower court is reversed, the lease between lessor and lessee is terminated, and lessee is ordered to vacate the premises in accordance with law.

REVERSED.


text:
    CLOVER CONTRACTORS, INC. v. JAMES H. JONES-1980, A Louisiana Partnership in Commendam, and Harry Baker Smith Architects, Inc.
    No. CA-1646.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 6, 1984.
    Rehearing Denied Aug. 24, 1984.
    Writ Denied Nov. 9, 1984.
    Ewéll E. Eagan, Jr., Gordon, Arata, McCollam & Stuart, New Orleans, for appellant.
    Ralph L. Kaskell, Jr., Terrence L. Brennan, Deutsch, Kerrigan & Stiles, New Orleans, for appellee Harry Baker Smith Architects, Inc.
    W. Malcolm Stevenson, Gregory C. Thomas, Monroe & Lemann, New Orleans, for appellee James H. Jones-1980, A Louisiana Partnership in Commendam.
    Before SCHOTT, LOBRANO and WARD, JJ.
   LOBRANO, Judge.

Clover Contractors, Inc. (Clover), the original plaintiff in a suit brought against James H. Jones (Jones) and Harry Baker Smith (Smith), instituted the present proceedings seeking to set aside a compromise and settlement entered into in that suit. The District Court refused to rescind the compromise and from that judgment Clover perfects this appeal.

Appellant, Clover, was the general contractor on the MacArthur Shopping Center owned by the appellee Jones. Appellee Smith was the architect engaged by Jones. Clover sued Jones for monies due on the building contract and sued Smith in tort for alleged damage to Clover.

After substantial discovery and submission of trial memoranda the case was called for trial on September 16, 1982. On the morning of the trial all sides engaged in settlement negotiations whereby a compromise agreement was entered into and dictated into the record. Essentially the agreement provided that Clover’s entire claim against Jones would be settled for $206,500.00 subject to setoff by any judgment in favor of Jones on its reconventional demands. Smith agreed to pay $7,500.00 to Clover for a release by Clover and Jones of all claims against Smith.

After the compromise was entered into, Clover filed a motion to rescind same on the basis of mutual error, or in the alternative, unilateral mistake of fact. Clover contends that when it agreed to settle its dispute with Jones for $206,500.00 it was under the mistaken belief that the contract amount less Jones’ payments to date of trial totalled $307,000.00. The $206,500.00 figure was arrived at by subtracting credits due to Jones for punch list items not corrected, work that was to be done on rental units A and B, but was not yet billed for and the repairs made to correct certain other structural problems. Clover contends that it meant to subtract these credits from the contract amount due of $374,-785.68 not from the $307,000.00 which represented the invoices billed to date less payments. Clover argues that to use the lower figure of $307,000.00 would be incorrect since it represents billings for work actually done, whereas some of the credits received by Jones was for work not done. Specifically, Clover alleges that Jones received credit for rental units A and B, when no work had been done or billed, and that this was a mistake of fact which should vitiate the settlement.

On the other hand, Jones contends that Clover was well aware of the various figures, having dealt with them in reference to this dispute for over two years and is now using the defense of mistake because they fear they settled too low. Additionally, Jones argues that the crucial part of the settlement was arriving at a bottom line figure of $206,500.00, a figure that everyone could tolerate, and the supplemental figures, i.e. $307,000.00 which Clover used to make the business decisions to settle are not relevant to the parties’ agreement to accept the final resolution of $206,500.00. Furthermore, Jones argues that Clover had billed him $377,622.00 for work actually completed in rentals A and B.

As cited by this Court in Carlton v. Great American Insurance Co., 273 So.2d 655 (La.App. 4th Cir.1972) writs denied, 277 So.2d 442 the principles of law as stated in Cole v. Lumbermans Mutual Casualty Co., 160 So.2d 785 (La.App. 3rd Cir.1964) are appropriate. We quote from the Cole case, supra, as follows:

“Under the civilian law of obligations, legally given consent of both parties is requisite to the validity of a contract, so that there is no consent and no valid contract where the consent has been produced by error or fraud. LSA-C.C. Arts. 1779, 1819, 1824.
Compromises are a species of contract which cannot be attacked because of error of law, but which may be rescinded because of error of fact, or in the case of fraud. LSA-C.C. Arts. 3078, 3079. However, as stated in McCastle v. Architectural Stone Co., (La.App. 1 Cir.) 4 So.2d 120, 123:
‘As a general rule, a compromise settlement cannot be set aside for an error of law alone, yet if the error was caused by what was said or done by the other party under such circumstances as to lead the person in error to rely on such act or statement, there is such a mistake as will justify setting aside the agreement. C.C. Art. 3079; Reed v. Holderith, (3 La.App.) [378], 379; 15 C.J.S. Compromise and Settlement Sec. 36c, p. 758.’
An error of fact is that ‘which proceeds either from ignorance of that which really exists, or from a mistaken belief in the existence of that which has none.’ LSA-C.C. Art. 1821. It is not every error that will invalidate a contract, only an error as to some point ‘which was a principal cause for making the contract’, including error as to the motive for making the contract. LSA-C.C. Art. 1823.
As to error in the motive, LSA-C.C. Art. 1824 provides: ‘The reality of the cause is a kind of precedent condition to the contract, without which the consent would not have been given, because the motive being that which determines the will, if there be no such cause where one was supposed to exist, or if it be falsely represented, there can be no valid consent.’ Further, ‘the error in the cause of a contract to have the effect of invalidating it, must be on the principal cause, when there are several; this principal cause is called the motive, and means that consideration without which the contract would not have been made.’ LSA-C.C. Art. 1825.
Likewise, and it is important to note that the words italicized by this court: ‘No error in the motive can invalidate a contract, unless the other party was apprised that it was the principal cause of the agreement, or unless from the nature of the transaction it must be presumed that he knew it.’ LSA-C.C. Art. 1826. Additionally ‘ ⅜ * * wherever the motive is apparent, although not made an express condition, if the error bears on that motive, the contract is void. * * * ’ LSA-C.C. Art. 1827.
Such principles also apply to the annulment of a compromise on the ground of error. LSA-C.C. Art. 1828, 1930. ‘But if the compromise be of all differences generally, and there were other subjects of dispute, besides that in which the error existed, of sufficient importance to raise a presumption that, even if the error had been discovered the compromise would still have been made, then such error shall not invalidate the contract.’ LSA-C.C. Art. 181.” Cole, supra, at 787, 788.

Applying those principles to the case at bar, we must agree with the trial court that all parties were familiar with the numbers in dispute. It was immaterial to Jones which combination of numbers was being used by Clover in evaluating the various settlement offers of Jones. Several lower offers than the $206,500.00 settlement were rejected by Clover. Obviously, both parties reached an unhappy number which was nonetheless acceptable. Such is the nature of compromise. The Supreme Court in Collins v. Capital Valve and Fitting Co., 409 So.2d 579 (La.1982) defines compromise as

“... an agreement between two or more persons who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner upon which they agree and which everyone of them prefers to the hope of gaining, balanced by the danger of losing.” at 580.

We are convinced that since the supporting figures of Clover were immaterial to Jones in the compromise negotiations, there was no mutual mistake of fact to invalidate the settlement. Clover however, argues that its unilateral mistake is sufficient to vitiate the settlement.

We agree that a unilateral mistake can form the basis to invalidate a contract, however the other party must be “... apprised that it was the principal cause of the agreement, or unless from the the nature of the transaction it must be presumed he knew it.” Cole v. Lumbermans Mutual Casualty Co., supra; Carl ton v. Great American Insurance Co., supra. At the rule to rescind the compromise, Jones’ attorney testified that he was unaware that Clover’s use of the $307,-000.00 figure was a principal cause of the agreement. To the contrary, he testified that the amount which Clover billed, as well as the items that were billed, were the principal matters of dispute in Clover’s original lawsuit. These are the very items that the parties compromised.

As stated earlier Smith agreed to pay Clover $7,500.00 in settlement of all claims against Smith. As further consideration flowing from Jones to Clover in order to assist Clover’s settlement with Smith, Jones agreed that it would waive its right to proceed against Smith for reimbursement of the $13,000.00 attributed to the brick ledge problem. Both Jones and Smith have indicated in their briefs that they accept this portion of the compromise as valid, thus obviating the need for any further discussion. Since the alleged flaw in the transcription of the settlement provision relates only to the Smith portion of the settlement, and both Clover and Jones testified at the motion to rescind that in all other respects the transcription is accurate, we see no need to discuss this issue further. For the above and foregoing reasons the judgment of the trial court is affirmed. Appellant to bear all costs.

AFFIRMED.


author: LANIER, Judge.

text:
    Guy B. LACOSTE v. Emmett PRICE, et al.
    No. 83 CA 0918.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.
    Charles B. Colvin and Jack Harang, New Orleans, for plaintiff, appellant, Guy B. Lacoste.
    Steven B. Witman, New Orleans, for plaintiff, third party-plaintiff, Associated Indem. Corp., Appellee.
    William R. Brough, New Orleans, for third party-defendant and third party-plaintiff, Emmett Price, appellee.
    Edward P. Lobman, Metairie, for defendant and third party-defendant, State Farm etc., appellee.

      Before SHORTESS, LANIER and CRAIN, JJ.
   LANIER, Judge.

This is a suit for damages in tort resulting from a collision between an automobile owned by Guy B. Laeoste and a pickup truck owned by Emmett L. Price, Jr. Named as defendants were Carl Alford (driver of the truck) and his liability insurer, Allstate Insurance Company (Allstate); Price and his liability insurer, State Farm Mutual Automobile Insurance Company (State Farm); and Lacoste’s uninsured motorist insurer, Associated Indemnity Corporation (Associated). Price filed a third party demand against State Farm, and Associated filed third party demands against Alford, Price, State Farm and Allstate.

Prior to trial, Laeoste settled with Allstate for $9,500 (out of a $10,000 policy), reserving his rights against the remaining defendants. At trial, Laeoste and Associated stipulated that if no coverage was provided by State Farm, Associated would- settle with Laeoste for $5,000. After presentation of his case, Laeoste moved to nonsuit his claim against Price. After the trial, the district court rendered judgment in favor of Laeoste and against Associated for $5,000, in favor of Associated and against Price for $5,000, in favor of Price dismissing Lacoste’s claims against him as of non-suit and in favor of State Farm dismissing Lacoste’s claim and Price’s and Associated’s third party demands. Laeoste took this devolutive appeal contesting the dismissal of his claim against State Farm. No other party appealed or answered the appeal.

FACTS

Effective September 1, 1978, Price secured three separate policies of liability insurance from State Farm on the following vehicles: (1) 1970 Plymouth Valiant— policy period ending February 12, 1979; (2) 1965 Plymouth Valiant — policy period ending January 25, 1979; and (3) 1967 Dodge Dart — policy period ending March 1, 1979. Price also owned a wrecker truck which was insured by another company. Price owned several inoperable vehicles from which he salvaged parts to fix the vehicles he operated.

On November 15, 1978, Price purchased a 1971 Dodge ¾ ton pickup truck “as is” from the Government Surplus office in Mississippi for approximately $600-$800. The truck was inoperable when acquired and had to be towed back to Price’s home in Pearl River, Louisiana. In approximately December of 1978 or January of 1979, Price decided to make the truck operable and secured a Louisiana license plate for it.

On January 25, 1979, February 12, 1979, and March 1, 1979, the three policies secured by Price from State Farm on September 1, 1978, expired. Price renewed each of these policies prior to its expiration date. Price did not give notice to State Farm of the acquisition of the truck on November 15, 1978, during the policy period of any of these three policies, nor did he request State Farm to provide coverage for the truck.

On approximately March 11, 1979, Price began repairing the truck to get it into running condition. It took three or four days of work to get the truck in operating condition.

On March 21,1979, Carl Alford was operating the truck owned by Price in an easterly direction on Louisiana Highway 41 in St. Tammany Parish, Louisiana. At this same time and place, Guy Laeoste was operating his 1971 Oldsmobile automobile in a westerly direction. A collision occurred when the truck crossed the center line of the highway and struck Lacoste’s vehicle head-on. As a result of this collision, Laeoste sustained property damage to his vehicle, loss of wages of $3,234.39, medical bills and expenses of $5,560.35 and personal injuries. Price first reported his acquisition of the truck to State Farm when he reported the accident.

INSURANCE COVERAGE ON TRUCK

Each of the State Farm policies provides in pertinent part as follows:

“owned automobile” means
(a) a private passenger, farm or utility automobile described in this policy for which a specific premium charge indicates that coverage is afforded,
(c) a private passenger, farm or utility automobile ownership of which is acquired by the named insured during the policy period, provided
(1) it replaces an owned automobile as defined in (a) above, or
(2) the company insures all private passenger, farm and utility automobiles owned by the named insured on the date of such acquisition and the named insured notifies the company during the policy period or within 30 days after the date of such acquisition of his election to make this and no other policy issued by the company applicable to such automobile, ...
“utility automobile” means an automobile, other than a farm automobile, with a load capacity of fifteen hundred pounds or less of the pick-up body, sedan delivery or panel truck type not used for business or commercial purposes;

The district court gave the following reasons for judgment:

Although this Dodge pick-up was inoperable when purchased, it was repaired in only three or four days’ time. This Court finds that this Dodge pick-up had not lost its identity as an automobile under the terms of State Farm’s policy when it was initially purchased by Price. Even though Price was not sure when he originally bought this pick-up whether he was going to sell same for parts or make it operable, the fact remains that the truck was operable with the exception of a bad clutch. The fact that this vehicle was badly rusted did not keep it from being classified as an automobile under this policy.
This Court does not find that the above quoted policy provision is ambiguous. This provision applies clearly to newly acquired automobiles and gives the prospective insured thirty days after the date of acquisition of such an automobile to notify the insurance company of his acquisition with insurance being provided in the meantime. However, should the prospective insured acquire a vehicle which has not lost its identity as such and does not report the acquisition of this vehicle within thirty days of purchase, then the insured must actually secure insurance on same before driving it. Nor is this unfair to the prospective insured. For jurisprudence not in point but analogous, see Mahaffey v. State Farm Mutual Automobile Insurance Company, 175 So.2d 905 (La.App. 3rd Cir., 1965) involving an uninsured vehicle which had, at one time, been insured by defendant insuror [sic]. Therefore, State Farm did not have a policy of insurance covering this 1971 Dodge pick-up when this accident occurred.

Price contends on appeal that the district court erred in finding that the truck was an “owned automobile” at the time of acquisition (November 15, 1978), thus precluding coverage because of noncompliance with the notice provisions of the State Farm policy. Price argues that the truck became an “owned automobile” only when it was made operable less than ten days before the accident and that any other interpretation of the policies would be contrary to the intention of the parties. Price also argues that the State Farm policies are ambiguous because they do not adequately define the term “automobile”. Thus, the sole issue on appeal is at what point in time did the truck become an “owned automobile” within the purview of the State Farm policy?

Courts must give legal effect to the provisions of an insurance policy according to the true intent of the parties, which is determined by the wording of the policy when its provisions are clear and unambiguous and do not lead to absurd consequences. Gulf Building Services, Inc. v. Travelers Indemnity Company, 435 So.2d 477 (La.App. 4th Cir.1983), writ denied, 441 So.2d 749 (La.1983); Schmieder v. State Farm Fire and Casualty Company, 339 So.2d 390 (La.App. 1st Cir.1976), application denied, 341 So.2d 895 (La.1977). If there is doubt or ambiguity as to the meaning of a provision in an insurance policy, the policy must be construed liberally. in favor of the insured and against the insurer. Credeur v. Luke, 368 So.2d 1030 (La.1979).

The record establishes the following pertinent facts:

(1) Price did not have the truck listed in any of the State Farm policies and did not pay a specific premium for coverage;
(2) The ownership of the truck was acquired by Price during the policy periods of the three policies purchased on September 1, 1978;
(3) At the time that the truck was acquired, it did not replace one of the automobiles covered by the three State Farm policies purchased on September 1, 1978; and
(4) Price did not notify State Farm of the acquisition of the truck during the policy periods of the three policies purchased on September 1, 1978, or within thirty days after the date of the truck’s acquisition.

(We assume for purposes of this opinion that State Farm insured all “automobiles” owned by Price on the date of acquisition of the truck.) The pertinent portion of the State Farm policy conditions coverage on acquisition of ownership during the policy period. Once there is acquisition of ownership, the notification provisions are triggered. The policy does not require that an “automobile” be operable at the time that ownership is acquired. Thus, by the plain and unambiguous language of the policy, coverage is contingent upon acquisition of ownership and not acquisition of operability.

Contentions made by Price in the instant case were made in Collard v. Globe Indemnity Co., 50 So.2d 838 (La.App. 1st Cir.1951). On July 11, 1947, Collard obtained an insurance policy covering a 1940 Diamond \lk ton truck, which policy remained in effect until July 11, 1948. In November or December of 1947, Collard purchased an old Diamond T 1½ ton truck which would not run and had to be completely overhauled and rebuilt. He took this truck to his shop where he proceeded to overhaul it, complete with a wrecker boom and winch, and made this truck into a wrecker. The rebuilding was completed on January 18, 1948, and the vehicle was put into service on that date. The rebuilt truck was involved in an accident on February 14, 1948. Collard did not give notice of acquisition of the second truck until after the accident.

Collard contended that there was no delivery (acquisition) of the second truck until it was fit for use on January 18, 1948, and that since the accident occurred within thirty days of that date that the second truck was covered. In disposing of this contention, the court observed as follows:

The language used in the automatic insurance clause, supra, is neither uncertain nor ambiguous. It is plainly to the effect that any insured acquiring ownership of another automobile and notifying the company within 30 days following date of its delivery to the insured that such insurance as is afforded by the policy applies to the acquired and delivered automobile if it replaces an automobile described in the policy. In the present case, the petition alleged that the ownership of the old salvaged Diamond T. log truck was acquired in November or December, 1947, and that “petitioner took said truck to his auto shop.”
Article 2477 of the Revised Civil Code defines “delivery” as the “transferring of the thing sold into the power and possession of the buyer.” According to plaintiff-appellant’s petition, the old Diamond T. 1½ ton truck was transferred into the “power and possession” of the plaintiff-appellant in November or December, 1947. Consequently, there was delivery of the vehicle in November or December, 1947, and, therefore, on the face of the petition, more than 30 days had elapsed before the notice required under the terms of the automatic insurance clause was given to the defendant-appellee. 50 So.2d at 840.

Collard also contended that he did not have an insurable interest in the second truck until its rebuilding was completed. The Court disposed of this contention as follows:

It is contended that the plaintiff had nothing to insure or no insurable interest in this old Diamond T 1⅛ ton truck on the date of its acquisition and delivery to him, and it was only after adding to it and building it into a wrecker which was completed on January 18th, 1948 that there was anything to insure. While this may be true, the plain provision and language of the contract should not be stretched or warped so as to include or afford a protection to the insured not intended under a reasonable and fair interpretation of the policy. The plain condition of the policy meant that the insured, in order to take advantage of the automatic provision should, within thirty days of the acquisition and delivery to him of another automobile, have put it in such condition that it would be insurable and could have replaced the automobile originally covered. For example, in the present case if the plaintiff had been able to complete the repairs or changes he wished to make in the old Diamond T truck which he purchased and which was delivered to him in November or December, 1947 on or before 30 days from the date of its delivery, and had notified the plaintiff within the thirty days of the replacement of the original wrecker, then the automatic insurance provision would have applied in this case. To hold in the present case that the plaintiff had thirty days from January 18th, 1948, the date he alleged he completed the conversion of the old truck into a wrecker and replaced the insured wrecker, would be to read or strike out the word “delivery” in the automatic insurance provision. The word “delivery” as used in the policy could not be given a meaning of say “delivery for replacement purposes.” Throughout this provision it is clear that it means a manual delivery of the newly acquired automobile or motor vehicle, and then the insured may, if he so desires, replace an automobile already insured under the policy with the other one provided he notifies the insurance company within thirty days from the date of delivery to him. 50 So.2d at 843.

In Green v. American Home Assurance Company, 169 So.2d 213 (La.App. 2nd Cir. 1964), the tort-feasor owned four automobiles, one which was insured and operable, one which was acquired less than thirty days prior to the accident and which was involved in the accident and two which were inoperable. The insurer of the first vehicle denied coverage on the grounds that all of the tort-feasor’s vehicles were not insured by it at the time that the second (accident) vehicle was acquired. On original hearing, the court found that since the third and fourth vehicles were not operable that they were not required to be covered as a condition precedent to coverage for the newly acquired vehicle. On rehearing, the court reversed itself and concluded that there was no coverage with the following language:

Very likely it is true that the Jaguar was not operated over a considerable period of time, but it is clear that this was a temporary condition. The car had not been junked and abandoned by its owner; it was not in a condition which was beyond repair, and, as a matter of fact, it was repaired to an extent which permitted its use. This finding does not justify the conclusion that the automobile was either inoperable or uninsurable. It follows that our conclusion to the effect that the language of the policy endorsement requiring insurance of all owned automobiles did not apply was erroneous. We find no Louisiana jurisprudence on this point but we have been cited to the case of Williams v. Standard Accident Insurance Co., 158 Cal.App.2d 506, 322 P.2d 1026. In the cited case the court found that the car in question lacked wheels, tires, a windshield, headlights, fenders, bumper, radiator and grill, but, nonetheless, it was to be considered as an automobile subject to insurance coverage. The court concluded that the fact that the automobile was not actually in use while it was undergoing repairs did not change its inherent nature nor remove it from definition as an automobile. 169 So.2d at 219.

In Mahaffey v. State Farm Mutual Automobile Insurance Company, 175 So.2d 905 (La.App. 3rd Cir.1965), the defendant, Frensley, owned and operated at one time seven delivery vehicles which were insured under a fleet policy. Three of the vehicles became inoperable, and on November 10, 1961, the fleet policy was can-celled and separate policies were issued on the four vehicles in operation. Two of these four vehicles became “laid up” for repairs. Frensley decided to put another vehicle into operation by installing a new motor into the “shell” of a 1958 Volkswagen panel truck (one of the three vehicles that was inoperable). The truck was repaired on February 4, 1962, and was involved in an accident on February 6, 1962. Frensley did not contact State Farm to change one of the four policies to show the Volkswagen as an insured vehicle prior to the accident. In the district court, Mahaf-fey argued that the Volkswagen was covered under any of the four State Farm policies because when it became inoperable, it lost its identity as an “automobile”, and when it became operable on February 4, 1962, it acquired the status of a “newly acquired automobile”. The district court ruled that because the Volkswagen was inoperable for a time and subsequently was repaired and became operable did not place it in the category of a “newly acquired automobile”. The Court of Appeal agreed with this reasoning with the following language:

An automobile, although in need of a new motor, is still an automobile, as this term is ordinarily understood. Frensley did not acquire an automobile. He only put a new motor in an old automobile he already owned.
Furthermore, we think this construction is consistent with the intention of the contracting parties. The obvious purpose of the provision regarding “newly acquired automobiles” is to provide automatic coverage, without even the necessity of notice to the insurer, for an automobile acquired by the named insured during the policy period to replace a vehicle covered by the policy. But this provision was not intended to cover another automobile owned by the insured at the time the policy issued and used to replace the described vehicle. To hold otherwise, in a situation like the present, would permit an assured with a number of vehicles, some in operating condition and some in need of repair, to put them in and out of service, contending, that all are covered by the policies, when in fact no premiums are being paid for some of them. This may be possible under a fleet policy, but not under these separate policies. 175 So.2d at 909.

In Barnes v. Carmadelle, 424 So.2d 492 (La.App. 5th Cir.1982), State Farm insured a 1972 Cadillac and a 1973 Pontiac owned by Carmadelle under separate policies. Carmadelle also owned a 1966 Pontiac which had a “burnt motor” and was not in use. The 1966 Pontiac had been insured by State Farm until June 4, 1975, when it was replaced on the policy by the 1972 Cadillac. On October 25,1977, Carmadelle acquired a 1971 Mercury which was involved in an accident on December 15, 1977. Carma-delle contended that the Mercury was covered under the Cadillac policy. The district court found that the 1966 Pontiac was repairable and therefore insurable and denied coverage, in part, because all of the automobiles owned by Carmadelle were not insured by State Farm. The Court of Appeal affirmed holding, in part, that Carmadelle’s 1966 Pontiac was not in a condition beyond repair and therefore could be classified as an automobile owned by him for purposes of the State Farm policy.

The above jurisprudence indicates that, although an automobile is inoperable at the time that its ownership is acquired, it is considered as a newly acquired automobile if it is repairable. However, if the automobile is abandoned, junked or not repairable, it does not fall in this category. The truck in the instant case was repairable, and its ownership was acquired on November 15, 1978. The truck did not acquire the status of a “newly acquired automobile” in March of 1979.

The cases of Glen Falls Insurance Company v. Gray, 386 F.2d 520 (5th Cir.1967) and Canal Insurance Company v. Brooks, 201 F.Supp. 124 (W.D.La.1962), aff’d, 309 F.2d 751 (5th Cir.1962) are factually distinguishable from the instant case. In Glen Falls, Gray secured a liability insurance policy covering two automobiles with a policy period of February 12, 1960, to February 12, 1961. On January 10, 1961, Gray came into possession of a 1955 Oldsmobile under an agreement to purchase. Gray went to his insurance agency and reported his acquisition of possession of the Oldsmobile but advised that he did not desire it to be covered by his policy because it had to undergo extensive repairs and that after the repairs were completed, he would decide whether to keep the Oldsmobile or sell it. Gray secured a renewal policy for a policy period of February 12, 1961, to February 12, 1962, on the two automobiles covered by the previous policy. The Oldsmobile was not placed on the renewal policy at that time. On February 20, 1961, Gray eliminated one of the automobiles from this policy and on that same date acquired legal title to the Oldsmobile. At the end of April 1961, the repairs on the Oldsmobile were completed, and Gray decided to keep it and drive it. In July of 1961, Gray and a business associate drove in the Oldsmobile to the office of his insurer’s agent. Gray told the agent that he decided to keep the Oldsmobile and that he wanted it covered by his policy. Gray testified that at the end of July or the first part of August, he telephoned the agent to confirm his coverage, and he understood from the agent that the Oldsmobile was covered by the policy. Approximately a week or ten days later, the agent died and his records contained no reference pertaining to these conversations (and apparently there was no endorsement on the policy to show this change). On January 27, 1962, Gray was driving the Oldsmobile and was involved in an accident in which two persons were killed. The insurer denied coverage under the policy. At the subsequent trial, a jury found that during July 1961, a conversation between the agent and Gray took place with reference to insurance coverage for the Oldsmobile and that Gray informed the insurer of his ownership of the Oldsmobile for the purpose of coverage. The jury deadlocked on whether or not there was an agreement between the agent and Gray that the Oldsmobile would be covered by the insurer under the existing policy. The district court subsequently entered a partial summary judgment in favor of Gray declaring that the Oldsmobile was covered by the insurer under the previously existing policy. The above facts show that the Oldsmobile was not initially covered because Gray specifically told the insurer that he did not want it covered. The case factually turned on whether or not there was an agreement between the parties to cover the Oldsmobile in July or August of 1962. The district court ultimately determined as a fact that such an agreement existed. In any event, Gray gave notice of his acquisition of ownership of the vehicle and his intention to have coverage during the policy period in which he acquired ownership and prior to the accident. In this posture, the observation that acquisition of ownership may properly be construed as comprehending the acquisition of an operable vehicle is dictum. Further, the opinion limits itself to the particular facts of the case.

In Canal, Brooks advised the insurer that he owned two uninsured trailers which had been abandoned as junk. The agent for the insurer advised Brooks that it was unnecessary to place the trailers under his insurance policy which covered nine vehicles used in his trucking business. On August 15, 1959, during the policy period, Brooks acquired ownership of a used automobile. On August 17, 1959, while driving this newly acquired automobile, Brooks was involved in a collision. On August 21, 1959, Brooks notified the insurer of the newly acquired automobile and of the accident. The insurer denied coverage claiming that all automobiles owned by Brooks were not insured under the policy. (In addition to the two junked trailers, the insurer also made claims concerning a boat trailer and a trailer leased to a third party. A discussion of the disposition of the boat trailer and the leased trailer is not pertinent herein.) After considering the evidence concerning the condition of the two trailers, the court found that they were in fact junked trailers which were “totally unserviceable” and held that there was no reason to include them in the policy. In addition, these trailers were not included in the policy after Brooks discussed them with the insurer’s agent. In the instant case, the truck was not junked or abandoned, and Price made no attempt to obtain coverage or give notice during the initial policy period.

DECREE

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

AFFIRMED.


author: SAVOIE, Judge.

text:
    STATE of Louisiana v. Lionel BENTON.
    No. 84 KA 0016.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.
    Writ Denied Sept. 28, 1984.

      Ossie Brown, Dist. Atty. by Ralph Roy, Asst. Dist. Atty., Joseph N. Lotwick, Asst. Dist. Atty., Baton Rouge, for plaintiff-ap-pellee.
    Kathleen S. Richey, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

Defendant, Lionel Benton, appeals his conviction for attempted aggravated rape and his sentence of 15 years at hard labor.

On November 8, 1981, defendant had sexual intercourse with the victim. This fact is not in dispute. However, there is a dispute concerning the factual circumstances surrounding the commission of the offense and whether the victim consented thereto.

Defendant was charged with violating L.S.A.-R.S. 14:42, Louisiana’s aggravated rape statute. After a trial thereon, the jury convicted defendant of attempted aggravated rape. The trial court sentenced defendant to 15 years at hard labor and ordered him to pay court costs. Defendant appeals his conviction and sentence, alleging seven assignments of error.

The second and third assignments of error were not briefed and, therefore, are considered abandoned. Uniform Rules of the Courts of Appeal, Rule 2-12.4; State v. Kent, 434 So.2d 1258 (La.App. 1st Cir. 1983), writ denied, 440 So.2d 727 (La.1983). The first and fourth assignments of error concern the issue of admitting prior consistent statements into evidence and will be addressed together. The remaining assignments of error allege that the trial court erred in denying defendant’s motion for mistrial, accepting a verdict contrary to the law and evidence, and imposing an excessive sentence.

ASSIGNMENTS OF ERROR NOS. 1 AND 4

Defendant contends that the trial court erred in failing to admit his prior consistent statements into evidence. Defense counsel attempted to introduce the statements on two different occasions during trial.

L.S.A.-R.S. 15:496 details the requisite foundation for allowing the introduction of prior consistent statements, the fact of which is offered as corroboration. State v. Marcal, 388 So.2d 656 (La.1980). It provides:

“When the testimony of a witness has been assailed as to a particular fact stated by him, similar prior statements, made at an unsuspicious time, may be received to corroborate his testimony.”

The first time defense counsel attempted to introduce the statements was during his cross-examination of Officer Starkey, a prosecution witness. At that time, defendant had not yet testified. Accordingly, there was no testimony by the defendant which had been assailed as to a particular fact and, thus, no basis for allowing the statements to be received as corroborative evidence.

The second attempt to introduce defendant’s prior consistent statements occurred during defense counsel’s direct examination of Officer Starkey. Although defendant had testified at that time, the record indicates that his testimony was not assailed as to a particular fact but rather as to its general credibility. Therefore, the statements were inadmissible under L.S. A.-R.S. 15:496 since it requires an assault on a particular fact of a witness’ testimony, rather than an assault on the witness’ general credibility. State v. Marcal, supra.

Furthermore, the trial judge ruled that defendant’s statements were not made at an unsuspicious time as required by the statute. We agree. Defendant made these statements after the police confronted him, informed him that a rape complaint had been made against him, and advised him of his rights. There is nothing in the record to indicate that the defendant did not understand his rights, the seriousness of the crime, or that he was the suspect in a pending rape investigation. Albeit that the defendant had not been arrested at the time he gave the statements, the knowledge that he was suspected of committing the rape could produce a motive for making an exculpatory statement.

Defendant also argues that this evidence is relevant and, therefore, its exclusion violated his right to a fair trial. Although the statements may be relevant, they are, at best, corroborative evidence which was inadmissible under the rules of evidence. See L.S.A.-R.S. 15:496. Accordingly, the exclusion of the statements from evidence did not violate defendant’s right to a fair trial.

ASSIGNMENT OF ERROR NO. 5

Defendant asserts that the trial court erred in failing to grant a mistrial because of prejudicial remarks made by the prosecutor during rebuttal closing argument.

Argument of counsel is governed by L.S.A.-C.Cr.P. art. 774. It provides:

“The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.
“The argument shall not appeal to prejudice.
“The state’s rebuttal shall be confined to answering the argument of defendant.”

If the argument goes beyond the scope of this article, it falls within the ambit of L.S.A.-C.Cr.P. arts. 770 and 771. See L.S. A.-C.Cr.P. art. 774, comment (c); State v. Morris, 404 So.2d 1186 (La.1981), rehearing denied, Oct. 9, 1981. In order for argument outside the scope of L.S.A.-C.Cr.P. art. 770 to be reversible, the court must be thoroughly convinced that these remarks influenced the jury and contributed to the verdict. State v. Morris, supra.

In his rebuttal closing argument, the prosecutor commented that the defense had under its control and could have produced certain evidence. Defense counsel moved for a mistrial and, alternatively, for an admonition to the jury to ignore the references to her ability or inability to produce certain witnesses. The basis of her objection was that the statements infringed on defendant’s right to the presumption of innocence. The trial court denied the motion for mistrial but agreed to, and did, admonish the jury not to misunderstand the earlier instruction given — that the defendant is not required to produce any evidence.

The prosecutor’s remarks that the defense objected to are not included among the prohibitions of L.S.A.-C.Cr.P. art. 770, which mandates the ordering of a mistrial. Therefore, L.S.A.-C.Cr.P. art. 771 is the appropriate article to apply in this instance. Under that article, it is within the trial court’s discretion to determine whether an admonition is sufficient or whether a mistrial is necessary to assure the defendant a fair trial.

The trial judge believed an admonition was sufficient to cure any prejudice which may have resulted from the prosecutor’s irrelevant remarks. We agree that this was the correct sanction.

In this instance, the jury accepted the victim’s testimony over that of the defendant. This was a credibility determination by the jury. It was capable of being made regardless of the other evidence presented at trial. Therefore, we cannot say that the prosecutor’s comments, by themselves, necessarily influenced the jury and contributed to the verdict. In the absence of such, the granting of a mistrial was not warranted.

ASSIGNMENT OF ERROR NO. 6

Defendant contends that there was insufficient evidence to support the verdict of guilty of attempted aggravated rape. He argues that, since he did not deny he had sexual intercourse with the victim, consent was the only issue before the jury. Therefore, defendant maintains that the jury could only return a verdict of guilty or not guilty of the charged offense.

L.S.A.-C.Cr.P. art. 814, § A(8) lists attempted aggravated rape as a responsive verdict to the offense of aggravated rape. Upon motion of the State or the defense, the court, in its discretion, may exclude a listed responsive verdict, if, after all the evidence has been submitted, there is no evidence to establish that responsive verdict. L.S.A.-C.Cr.P. art. 814, § C. If the defendant fails to object at a time when the trial court can correct the error, then the reviewing court may affirm the conviction if the evidence would have supported a conviction of the greater offense. This is so, whether or not the evidence supports the conviction of the legislatively responsive offense returned by the jury. State ex rel. Elaire v. Blackburn, 424 So.2d 246 (La.1982), cert. denied, — U.S. —, 103 S.Ct. 2432, 77 L.Ed.2d 1318 (1983).

At trial, the jury instructions included a charge regarding the responsive verdict of attempted aggravated rape. No objection was made by defense counsel to this jury instruction. It is being raised for the first time on appeal. Therefore, if the evidence supports conviction of the greater offense, aggravated rape, this court may affirm the conviction.

The victim testified she had sexual intercourse with the defendant and defendant admitted this fact. Further, the victim testified that defendant armed himself with a knife and forced her, against her will, to have sexual intercourse with him. Further, the victim testified that defendant threatened her several times and, at one point, put the knife to her throat and said he would kill her if she did not do what he wanted.

The testimony of the victim is sufficient to prove the offense charged. State v. Norman, 448 So.2d 246 (La.App. 1st Cir.1984). Therefore, there is evidence in the record to support a conviction of the greater offense, aggravated rape. Accordingly, the conviction is affirmed.

ASSIGNMENT OF ERROR NO. 7

Defendant contends that his 15 year sentence is excessive. He argues that the trial court overestimated the significance of his prior offenses and failed to apply any of the mitigating factors. In addition, he asserts that the sentence imposed is out of proportion to the severity of the crime.

L.S.A.-C.Cr.P. art. 894.1 requires the trial court to state for the record the considerations and factual basis for imposing the given sentence. However, it need not articulate every aggravating and mitigating circumstance. The record need only reflect that the trial judge adequately considered the guidelines given in the article. State v. Parish, 429 So.2d 442 (La.1983). Even when the trial court has not complied with C.Cr.P. art. 894.1, this court need not remand the case for resentencing, unless the sentence imposed is apparently severe in relation to the particular offender or the offense committed. State v. Davis, 448 So.2d 645 (La.1984).

At the sentencing hearing, defense counsel asked the trial court to consider as mitigating factors defendant’s fairly steady employment history, his family and his support thereof. The court stated it had taken those factors into account in arriving at the sentence. The court then sentenced the defendant. Thereafter, the trial court enunciated the following reasons for the sentence imposed. It stated that confinement was appropriate because there was undue risk that defendant would commit another crime. The court noted that defendant’s criminal record dated back to 1976. The court pointed out that defendant’s criminal record included convictions for possession of marijuana, criminal damage to property, reckless operation, fleeing to elude and no driver’s license. Furthermore, the court opined that defendant was in need of correctional treatment, explaining that defendant previously had had the benefit of unsupervised probation without any apparent beneficial effect. Lastly, the trial court concluded that a lesser sentence would deprecate the seriousness of the crime. In support thereof, the court cited the overpowering physical nature of the offense following defendant’s gaining the victim’s confidence and then turning on her and inflicting this offense. Defense counsel complains that the trial court did not enunciate the effect of the factors she requested the court to consider nor did it mention any other personal consideration.

According to the pre-sentence investigation report, defendant was 30 years old at the time of the offense. The report reveals that, although defendant was married and had three children, he was residing with his sister. It states: “The marriage is considered stable in that they would reunite if the subject is released from jail.” (Emphasis added). There is no mention of defendant contributing to the support of his estranged wife and/or children either in the report or at the sentencing hearing. Further, the “fairly steady employment” disclosed in the report consists of one and one-half years in the frozen food business.

Notwithstanding the fact that the trial court failed to articulate the effect of these factors, this court need not remand the case for resentencing if we conclude that the sentence imposed is not apparently severe.

We do not consider that the above-noted factors exemplified defendant’s character in such a manner as to have a favorable effect toward mitigating his sentence. Contrarily, the fact that a defendant is a first-time felony offender and his previous crimes were not serious or offenses against the person are mitigating factors favorable to him. Nevertheless, these mitigating factors must be considered in light of the other circumstances surrounding the commission of the crime and, in particular, the nature and manner in which the offense was committed. State v. Smith, 430 So.2d 31 (La.1983), rehearing denied, May 13, 1983.

Attempted aggravated rape is a violent offense against the victim’s person. As recognized by the trial court, defendant gained the victim’s confidence and then turned on her, inflicting this offense. The victim testified defendant placed her in fear of her life.

The maximum penalty which may be imposed for the crime of aggravated rape is fifty years at hard labor. L.S.A.-R.S. 14:27(D)(1); L.S.A.-R.S. 14:42. Defendant was sentenced to serve fifteen years at hard labor, less than lh the maximum sentence.

In light of the circumstances surrounding this offense, this sentence is neither grossly disproportionate to the crime nor a needless imposition of pain and suffering. Therefore, it is not excessive and is well within the discretion of the trial court. See State v. Willis, 420 So.2d 962 (La. 1982).

For the foregoing reasons, the conviction and sentence are affirmed.

AFFIRMED.

      . In State v. Marcal, 388 So.2d 656, 660 (La.1980), the Louisiana Supreme Court stated:
      "La.R.S. 15:496 requires that the testimony of a witness has been assailed as to a particular before a prior inconsistent statement can be introduced."
      Since L.S.A.-R.S. 15:496 clearly concerns prior consistent statements, the use of the word inconsistent is obviously an error. The word should be consistent.

      . L.S.A.-C.Cr.P. art. 770 sets forth the instances in which the trial court shall order a mistrial. Contrarily, L.S.A.-C.Cr.P. art. 771 is the discretionary mistrial article.

      . The trial court gave the following admonishment to the jury:
      “All right, ladies and gentlemen, you will recall my preliminary instructions to you, and I will just simply mention them to you as an admonishment that the defendant is not required to produce any evidence whatever.”

      . We note that there is conflicting testimony about factual matters, the resolution of which depends on a determination of the credibility of the witnesses. However, this is a matter of weight of the evidence, not its sufficiency. State v. Norman, supra, and cases cited therein. A determination of the weight of the evidence is a question of fact. Id. This court has no appellate jurisdiction to review questions of fact in criminal cases. La. Const. of 1974, art. V, § 10(B).


author: CUTRER, Judge.

text:
    Dewayne L. BATEMAN, Plaintiff-Appellant, v. POWER RIG RENTAL TOOL COMPANY & Power Rig Drilling Company, Inc., Defendants-Appellees.
    No. 83-79.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1984.

      Jordan & Spring, Ltd., J. Max Jordan, Jr., Lafayette, for plaintiff-appellant.
    Davidson, Meaux, Sonnier, & McElligott, John G. Swift and J.J. Davidson, III, Lafayette, for defendants-appellees.
    Before GUIDRY, CUTRER and STOKER, JJ.
   CUTRER, Judge.

This appeal in a workmen’s compensation suit emanates from a trial court judgment in favor of the defendants/employers, rejecting the claim of plaintiff/employee for compensation benefits. The plaintiff, Dewayne L. Bateman, sought permanent total disability benefits, including penalties and attorney’s fees, from his employers, Power Rig Rental Tool Company and Power Rig Drilling Company, Inc. (hereinafter both are referred to as “Power Rig”).

The plaintiff appeals, requesting a reversal of the trial court judgment and an award for temporary total disability “for a period of fifty-two (52) weeks post-accident .... ” Also, the plaintiff reurges herein his request for penalties and attorney’s fees under LSA-R.S. 23:1201.2. For the reasons to follow, we affirm.

FACTS

The plaintiff, Bateman, had been employed by Power Rig in Lafayette for approximately ten months when he was injured on June 21, 1982. Bateman was classified as a “slab hand,” and his duties entailed cleaning and repairing equipment for rental. The injury occurred while Bate-man was testing some valves he had recently repaired. During the testing of one of these valves, Bateman was struck on the left side of his face and eye by a heavy slug of industrial grease emitted from the air-pressurized valve. According to Bate-man, he was not rendered unconscious by this incident, but he was dazed for several seconds.

Upon reporting the occurrence to his superiors, Bateman was taken to a local op-thamologist, Dr. Barry Bohn, who cleaned and treated the injured eye. Dr. Bohn observed a scratch on the cornea of Bate-man’s left eye and also a secondary irritation inside the eye, termed “iritis.” Bate-man was treated by this physician on June 21st with antibiotics, pain medicine (Tylenol No. 3) and dilating drops. Those items were also prescribed by Dr. Bohn for Bate-man’s continued use. Power Rig began paying Bateman weekly compensation benefits of $183.00 per week. Bateman’s medical expenses were also paid.

In the period between June 21st and July 5th, Dr. Bohn examined Bateman five times. During this time Bateman complained of incessant headaches which were not relieved by the pain medication. For several days after the initial accident, Bate-man had not used any of the dilating drops which had been prescribed by Dr. Bohn to alleviate pain. On June 28th, Dr. Bohn’s examination revealed that the cornea had healed, that the iritis had disappeared, and that the eye appeared normal; only Bate-man’s complaints of headaches remained. Bateman concedes that his vision returned to normal following Dr. Bohn’s treatments.

Dr. Bohn could not determine any physical reason for Bateman’s continued complaints of headaches. Dr. Bohn referred Bateman to a neurologist, Dr. Steven Snatic.

Dr. Snatic examined Bateman on three occasions between July 14th and July 30th, during which time Bateman complained of nearly constant severe headaches. According to the history provided by Bateman, he had no prior history of headaches. A neurological examination was conducted on July 14th, which revealed no abnormalities.

After examining Bateman initially, Dr. Snatic opined that the headaches were caused by “muscular tension in the jaws, neck and scalp.” The physician believed this could probably be related to the June 21st incident, but he expected a complete recovery within “a few weeks or a month or so.” Physical therapy and pain medication were prescribed by Dr. Snatic. Bateman said that the therapy relaxed him somewhat but that the relief was only temporary.

When Bateman returned for a second visit to Dr. Snatic, his headache complaints remained, and he was given another type of pain medication. Further, an EEG and a CT brain scan were performed, each indicating normal results. More medications and a change in the prescription were ordered by Dr. Snatic following Bateman’s continued complaints of headache pain.

Dr. Snatic stated that Bateman’s problems appeared to stem from an emotional reaction to his injury and were not related to any organic damage to the body or nervous system. He further noted that Bate-man appeared to be abusing his medication, causing Dr. Snatic to suspect the possibility of “severe drug abuse in the future.” Dr. Snatic could not say whether Bateman actually did have the headaches of which he complained, and he stated that it was possible that Bateman was “malingering.”

It was Dr. Snatic’s opinion that Bateman was not disabled for neurological reasons. He suggested psychiatric and psychological examinations and stated that he would defer to the psychiatrist’s opinion. Dr. Snatic continued to prescribe medication for Bate-man via telephone until August 23, 1982.

Upon receiving Dr. Snatic’s suggestion that his problems might be psychological rather than physical, Bateman told Dr. Snatic’s office nurse that he would not see a psychiatrist or a psychologist; he remarked that he would get “a lawyer to take care of his problem.” The results of Dr. Snatic’s examination and his opinion that Bateman should see another physician if he continued to abuse his medication and persisted in refusing psychological evaluations were sent to Bateman’s employer, Power Rig. Upon the basis of this report Power Rig ceased the weekly compensation payments of $183.00 to Bateman, who was paid through August 2, 1982.

Power Rig’s claim manager, Denny Wilson, testified that all of Bateman’s medical bills submitted for payment by Power Rig were paid. Wilson further testified that he received no further communications from Bateman following Power Rig’s decision to cease compensation benefits. Evidence presented by the defense at trial reflects that Power Rig did pay all of the plaintiff’s medical expenses connected with Drs. Bohn and Snatic, medication, EEG and CT scan, travel and physical therapy.

Contrary to his statements to Dr. Snatic’s nurse, Bateman, on August 2, 1982, did visit the psychiatrist recommended by Dr. Snatic, Dr. Robert L. Turner. Following his examination, Dr. Turner opined that Bateman could return to work and that his most likely diagnosis was malingering. Dr. Turner, accepted as an expert in psychiatry by the trial court, testified that Bate-man’s problems did not fit into the category of a “post-traumatic stress disorder;” nor did Dr. Turner believe that Bateman had a psychological factor affecting a physical condition.

On August 3,1982, Bateman was seen by Dr. F.T. Friedberg, a clinical psychologist, who administered a battery of psychological tests to Bateman. Dr. Friedberg noted slurred speech by Bateman, which was indicative to him of an abuse of medication. Dr. Friedberg also observed that the patient was “tangential in his thinking,” exhibited anxiety and appeared to be “speeding.” During this examination, Bateman verbalized a significant amount of headache pain. Dr. Friedberg diagnosed Bate-man as having a “hypochondriacal disorder where we have emotional factors interfering or associated with pain

It was Dr. Friedberg’s opinion that Bate-man’s problems were emotional, not organic, and that he would be a poor candidate for psychological therapy, because of Bate-man’s poor motivation. However, Dr. Friedberg stated that he could not make a definite diagnosis of plaintiff without a full detailed background on Bateman’s history of emotional behavior, which was not made available. Although he stated that he did not believe that Bateman should return to any work situation with his present complaints of headaches, Dr. Friedberg admitted that he could not make a valid diagnosis as to the relationship of Bateman’s emotional status to any particular event or period in the plaintiff’s history.

A close friend of and former co-worker with Bateman testified that the latter complained frequently of headaches and that his “anxiety is more prominent now than it was then.” Another employee at Power Rig, Charles Oge, testified that, prior to his injury, Bateman had experienced various personal problems with a girlfriend with whom he lived. The co-employee had overheard various telephone calls wherein Bate-man exhibited strong anger concerning certain acts by his girlfriend. Following one of these calls, Bateman had even threatened physical violence against the girl.

Suit was filed by Bateman on September 23, 1982. An exception of prematurity was filed by the defendants, but the disposition of the exception is not revealed in the record before us. The trial court has favored us with a concise recitation of his reasons for ruling:

“The Court finds the following facts to have been proven:
(1) The Plaintiff has no physical disability which can be attributed to the accident.
(2) As of the time that Defendant stopped compensation, all physical injuries which Plaintiff sustained in the accident had healed.
(3) The Plaintiff is suffering from no emotional or psychological disability. This third finding is based on:
(a) Dr. Robert L. Turner’s testimony which impressed the Court;
(b) Plaintiffs testimony was unimpressive;
(c) Since even Plaintiff admits that he has no vision disability and Dr. Snatic & Dr. Bohn both state that there is no physical basis for his headaches, Plaintiffs failure to seek psychological or psychiatric treatment and help speak loudly of their non-existence.

ISSUES

The issues before us are whether the trial judge was clearly wrong in his factual finding that Bateman failed to prove that he was disabled — physically or psychologically — as a result of his employment injury on June 21, 1982, and whether the defendants were arbitrary, capricious or acted without probable cause in discontinuing their payment of worker’s compensation benefits to plaintiff, thus entitling him to penalties and attorney’s fees.

DISABILITY

The plaintiff in a workmen’s compensation case has three elements of proof which he must establish at trial by a preponderance of the evidence: that he sustained a personal injury by an accident arising out of the course and scope of his employment; that he was/is disabled; and that his disability was causally related to the injury he received in the job-related accident. Gallien v. Supreme Contractors, Inc., 448 So.2d 871 (La.App.3rd Cir. 1984).

In the instant case Power Rig concedes that Bateman’s accident on June 21st occurred during the course and scope of the plaintiffs employment with defendants. There is no question that Bateman’s left eye was injured as a result of this accident and that he was paid compensation and medical benefits until August 2, 1982. The question before us is whether the trial court committed manifest error in finding that Bateman was not disabled after this date.

The only evidence as to possible physical disability is found in the previously referred to testimony of Drs. Bohn and Snatic. A brief review of that testimony reveals that no evidence of Bateman’s physical disability existed subsequent to the last weekly compensation payment. Each of those medical experts could find no indication of physical or organic impairments. No other medical testimony was introduced to refute these medical opinions. The testimony of these physicians fully supports the trial judge’s conclusion that Bateman “has no physical disability which can be attributed to the accident.”

The remaining allegation of disability is based upon the plaintiff’s emotional or psychological state, allegedly causing disabling headaches. A succinct statement as to the law and jurisprudence surrounding claims of mental disability has recently been stated thusly:

“Mental disabilities are compensable under the Louisiana Workmen’s Compensation Law. Victoriana v. Orleans Parish School Board, 346 So.2d 271 (La. App.4th Cir.1977); Murphy v. Employers Mutual Insurance Company of Warsaw, et al., 248 So.2d 623 (La.App.3d Cir.1971); Peavy v. Mansfield Hardwood Lumber Company, 40 So.2d 505 (La.App.2d Cir.1949); Lala v. American Sugar Refining Company, 38 So.2d 415 (La.App.Orl.1949).
“In the early Lala case, the court stated:
‘There is no doubt in our minds that nervousness, neurosis, or emotional disturbances, superinduced by injuries suffered by a workman, can be just as devastating to the ability to return to work as are physical or anatomical injuries, and are equally as compensable under the statute. ’ At page 421.
“The condition, however, must be proven, as in any other disabling injury, by a preponderance of the evidence and the causal relation must be established. Andrus v. Rimmer & Garrett, Inc., 316 So.2d 433 (La.App.3d Cir. 1975); Victoriana, supra; Knight v. Southeastern Chemical Corp., 344 So.2d 67 (La.App.4th Cir.1977). In Vic-toriana, the Fourth Circuit Court aptly noted:
‘In such cases the court must proceed with utmost caution and exercise extreme care in view of the nebulous characteristics of the condition, and the possibility of the symptoms being easily feigned; the evidence in these cases should be scrutinized carefully and every precaution taken to guard against unjustified claims. ’ At page 273.

Faucheux v. Hooker Chemical Corp., 440 So.2d 1377 (LA.App.5th Cir.1983), writ den., 444 So.2d 1238 (La.1984), writ granted, 444 So.2d 1251 (La.1984).

The trial court obviously accepted the testimony of Dr. Turner, a psychiatrist, that the most likely diagnosis for Bate-man’s headache complaints was that the plaintiff was malingering. The plaintiff’s testimony was deemed “unimpressive” by the trial judge.

Counsel for the plaintiff argues that the trial court erred in accepting Dr. Turner as an expert in the field of psychiatry, inasmuch as he had not been “board certified” by the State of Louisiana. The qualification of a witness as an expert by the trial judge lies within the wide realm of the trial judge’s discretion, and that determination will not be disturbed on appeal absent a showing of manifest error. Matter of Aaron, 417 So.2d 105 (La.App.3rd Cir.1982), appeal after remand, 434 So.2d 624, writ den., 438 So.2d 1111 (La.1983). The record reflects that no abuse of discretion occurred when Dr. Turner was qualified as an expert by the trial court.

The primary argument by Bateman is that the trial judge erred in accepting Dr. Turner’s diagnosis of malingering over those provided by Drs. Snatic and Fried-berg. Dr. Snatic, a neurologist, stated that Bateman’s problems appeared to be an emotional reaction to his job-related accident. Dr. Friedberg stated that the plaintiff exhibited a great deal of anxiety during his single examination which was “not con-traindicative” of a post-accident syndrome. Dr. Friedberg’s diagnosis was hypochondria with emotional factors interfering or associated with pain.

The trial judge, as factfinder, has the function of assessing the weight to be accorded competent medical testimony. Martin v. Emerson Elec. Co., 437 So.2d 910 (La.App.2nd Cir.1983). Further, the testimony of a specialist in a certain field is entitled to greater weight than that provided by other medical experts when the subject at issue concerns the particular field of the specialist’s expertise. Ellis v. Rapides Parish School Bd., 419 So.2d 990 (La.App.3rd Cir.1982).

Dr. Snatic admitted that his field of expertise was neurology and that no neurological abnormalities appeared to exist. He referred Bateman to Dr. Turner and expressly stated that he would defer to Dr. Turner’s medical findings concerning Bate-man’s emotional problems. Dr. Turner stated that the most likely diagnosis was malingering.

The diagnosis of hypochondria by Dr. Friedberg was followed by his admission that he could not draw any correlation between this diagnosis and any prior event in Bateman’s history without a detailed background sketch of the plaintiff. Apparently, no such sketch was provided by Bateman or otherwise. No other medical testimony was provided at trial.

Under these circumstances, the trial judge committed no error in finding that the plaintiff had failed in his burden of establishing by a preponderance of the evidence that he suffered a disability causally related to the June 21st incident.

Having come to this conclusion it is not necessary that we discuss penalties and attorney’s fees.

For these reasons, the judgment of the trial court is affirmed. The costs of this appeal shall be paid by plaintiff-appellant.

AFFIRMED.