author: KLIEBERT, Judge.

text:
    Raymond HUMPHREY v. Carson J. GAUTHREAUX, et al.
    No. 83-CA-792.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 11, 1984.

      Leon C. Vial, III, Hahnville, for plaintiff-appellant.
    Carmelite M. Bertaut, Hammett, Leake & Hammett, New Orleans, for defendant-appellee.
    Before KLIEBERT, BOWES and GRIS-BAUM, JJ.
   KLIEBERT, Judge.

The plaintiff, Raymond Humphrey, sued Carson J. Gauthreaux and his liability insurance carrier, Canadian Universal Insurance Company, for damages arising out of an automobile collision which occurred on the Airline Highway in St. Charles Parish on December 2, 1980. After a trial before the judge, Gauthreaux was found to be the cause of the accident and Gauthreaux and his insurance carrier were cast in judgment for $25,000.00 together with an unspecified amount for reimbursed medical expenses incurred by the plaintiff.

The plaintiff devolutively appealed urging inadequacy of the award because: (1) the trial judge failed to make an award for the loss of wages and (2) the general damage award of $25,000.00 by the trial judge was insufficient. The defendant, Gau-threaux also filed a devolutive appeal grounded in the contention he was never served and never made an appearance in the case. For the reasons hereinafter stated, we affirm the judgment as to the insurance carrier and, as to Gauthreaux, we reverse.

At the time of the injury, plaintiff was 47 years of age and employed as a second class pumper at GATX in Good Hope, La., earning $9.50 per hour. After the accident of December 2, 1980, plaintiff did not return to work until January 7, 1981. He was also absent from work between February 4, 1981 and August 24th, 1981.

With respect to the loss of wages, in his reason for judgment, the trial court said: “Recovery for wages lost should be based on that proven in court. I find that the plaintiff has failed to carry that burden.”

The record shows the plaintiff consulted Dr. Myles Gaupp the day following the accident. Although Dr. Gaupp did not appear as a witness, the record contains statements furnished by him to GATX stating the plaintiff was unable to work December 2, 3 and 4, 1980 and that as of December 4, 1980, the plaintiff “may not return to work until December 10, 1980.” Also, there is a report dated January 2, 1981 stating plaintiff could return to work on January 7, 1981.

Thus, although there is evidence from which the trial judge could have concluded the plaintiff did not report to work between December 2, 1980 and January 7, 1981, the plaintiff failed to prove on what days he would have been scheduled to work in that time period.

Although the plaintiff introduced evidence to show on what days he was out of work and the amount of wages lost during the period February 4, 1981 to August 24, 1981, he failed to show that the cause of his absence from work during that time frame was the accident of December 2, 1980. Although the memorandum dated August 10, 1981 from Dr. Richard Levy (the treating orthopedic surgeon) states that the plaintiff was capable of returning to work on August 24, 1981, there is nothing in the record to indicate Dr. Levy considered him unable to work during the period February 4, 1981 to August 24, 1981 because of the injury sustained in the accident. On the other hand, the memorandum from Dr. Ray Lousteau (the treating physician for the non-accident illness) specifically shows that the plaintiff was unable to work because of the non-accident illness during this time period.

Hence, we cannot say the trial judge erred in concluding the plaintiff failed to carry his burden of proof as to damages for lost wages.

We next consider the general damage award of $25,000.00.

Dr. Russel Levy, an orthopedic surgeon whose testimony was introduced by deposition, was the only physician who testified in the case. He had surgically removed a mass from plaintiffs wrist in July 1980 and his partner had treated the plaintiff for a back injury some four years prior to the accident here in question. His initial examination subsequent to the December 2, 1980 accident was on January 29, 1981. Dr. Levy related the plaintiffs history as of that date as follows:

“At that time, he stated fairly briefly that he was injured again in the area of the back in an auto accident. This time, he had apparently been treated at Dr. Gaupp’s office and had been working with the back because, as he put it, he had to work. He stated that he was having the same problem he had had four years ago when he was injured at work with back and leg pain and some numbness. He said he was doing all right on the treatment Dr. Gaupp was giving him with heat treatment and muscle relaxants and pain medication; but at work, he had begun climbing tanks again which was generally in his job and his leg had begun going numb on him and his back had been hurting him more.”

The doctor stated his initial physical examination revealed no spasm, but he did find stiffness and restricted motion in plaintiffs back. Without benefit of x-rays, he diagnosed plaintiff as having a low back sprain with some nerve root impairment. He believed the plaintiff could continue working provided he used a back support.

After the initial examination, the plaintiff did not return to Dr. Levy’s office until March 5, 1981. At that time, he informed Dr. Levy he had been hospitalized and had had surgery for cancer of the larynx. In view of this and the plaintiffs continued complaint of pain, Dr. Levy elected to have a bone scan done to rule out a metastatic cancer of the back as the cause of the pain. The bone scan was negative.

X-rays of the back showed mild spurring of the vertebrae at L4-L5. Dr. Levy considered the spurring of little significance because it was consistent with the plaintiffs age and work history. Due to plaintiffs throat operation, Dr. Levy had difficulty understanding the plaintiff; hence, he continued to treat him conservatively until his next appointment on March 30, 1981.

At the March 30, 1981 examination, Dr. Levy found plaintiffs back condition had worsened. He was having more pain in his right leg (previously pain had been in the left leg) and had a type of “drop foot” (a weakness in the peroneal musculature) which made it difficult to bring the foot in the dorsiflexion. After this examination, Dr. Levy diagnosed the cause of plaintiffs complaints as “lumbar degenerative disc disease with some nerve root impingement.” He believed, however, that the problem would correct itself without surgical intervention; hence, he did not schedule a myelogram or recommend surgery. Instead, he continued conservative treatment.

Subsequent examinations reflected plaintiff continued improving to the point Dr. Levy felt full recovery had been obtained and signed a statement saying the plaintiff could return to work on August 24, 1981.

Appellate review of the award of a trial court as to excessiveness or inadequacy must be based on the particular facts and circumstances of the case. The award may only be modified on appeal if the facts reveal that the trial court abused its much discretion in awarding damages. C.C. Article 1934(3); Reck v. Stevens, 373 So.2d 498 (La.1979). Under the circumstances involved here, we cannot say the trial judge abused his discretion.

We now consider the defendant, Carson Gauthreaux’s appeal. The record shows Gauthreaux was never personally served nor did he make a general appearance. The mere presence of the defendant in the courtroom does not constitute a general appearance. Thibodeaux v. Thibodeaux, 355 So.2d 275 (4th Cir.1978) Likewise, an appeal in which the defendant only seeks relief on the grounds that the trial court did not have jurisdiction does not constitute a general appearance under La. C.C.P. 7. DLJ of Louisiana $1 v. Green Thumb, Inc., 334 So.2d 801 (3rd Cir.1976). Thus, the judgment rendered against Carson Gauthreaux is null. La.C.C.P. Article 1201.

Accordingly, we reverse the trial court judgment insofar as it cast Carson J. Gau-threaux, and affirm the trial court in all other respects. Each party to bear his own cost of the appeal.

REVERSED IN PART; AFFIRMED IN PART.

      . These statements were part of GATX’s personnel record and were introduced in globo through the Assistant Office Manager at GATX.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Larry JONES.
    No. 84-KA-50.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 11, 1984.
    John M. Mamoulides, Dist. Atty., Gerald Alonzo, Asst. Dist. Atty., Dorothy Pender-gast, Asst. Dist. Atty., 24th Judicial District, Parish of Jefferson, Gretna, for plaintiff-appellee.
    Martha Sassone, Staff Appeals Counsel, 24th Judicial District, Indigent Defender Board, Gretna, for defendant-appellant.
    Before BOUTALL, KLIEBERT and GRISBAUM, JJ.
   KLIEBERT, Judge.

On January 26, 1982, by bill of information, the defendant, Larry Jones, was charged with a violation of R.S. 14:62.2, i.e., simple burglary of an inhabited dwelling. Following a sanity hearing, on July 22, 1982 he was committed by the Court to the Feliciana Forensic Facility at Jackson, Louisiana. After having been found competent to stand trial and a motion to suppress the testimony of eye witnesses to the crime was denied, on December 2, 1983, while reserving his right to an appeal pursuant to State v. Crosby, 338 So.2d 584 (La.1976), he pleaded guilty to a violation of R.S. 14:69B(3), i.e., receiving a stolen thing valued in excess of $500.00 and was sentenced to five years imprisonment.

According to the testimony elicited on the motion to suppress, the defendant was seen by the victim’s next door neighbor with a bag he knew belonged to the victim. Another neighbor followed the person exiting the victim’s house to a house about three blocks away. The police were informed of the situation, searched the defendant’s residence and found stolen items belonging to the victim.

On appeal, defendant alleges one assignment of error, namely: the record contains errors patent on the face of the record; however, no specific error is pointed out.

Code of Criminal Procedure Article 920 provides:

“The following matters and no others shall be considered on appeal:
(1) An error designated in the assignment of errors; and
(2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.”

We have thoroughly inspected the pleadings and proceedings in the record on appeal. Our inspection did not reveal any errors patent on the face of the record.

Accordingly, the defendant’s conviction and sentence are affirmed.

AFFIRMED


author: CHEHARDY, Judge.

text:
    SECURITY INSURANCE COMPANY OF HARTFORD and Charles W. Hodges v. Darrell DESHOTELS, a/k/a Darrell Deshotel, et al. Charles HODGES, d/b/a Hodges Tires v. Wayne DESHOTEL, Darrell Deshotel and Metropolitan Property and Liability Insurance Company. Johnnie Lee WILLIAMS v. Wayne DESHOTEL, Darrell Deshotel, et al.
    Nos. 84-CA-42 to 84-CA-44.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 11, 1984.

      James J. Morrison, Jr., New Orleans, for Security Insurance Company of Hartford, plaintiff-appellant.
    Donovan & Lawler, Noel E. Vargas, II, New Orleans, for Darrell Deshotels and Metropolitan Property and Liability Insurance Company, defendants-appellees.
    Before BOUTALL, CHEHARDY and DUFRESNE, JJ.
   CHEHARDY, Judge.

This appeal involves a dispute between a worker's compensation insurer and a third-party tort-feasor’s insurer over reimbursement for compensation and other benefits paid to the injured worker.

Johnnie Lee Williams was seriously injured on August 9, 1980 when the truck he was driving was struck by a van driven by Darrell Deshotels, who had run a red light. Williams was in the course and scope of his employment for Charles W. Hodges, doing business as Hodges Tires. Security Insurance Company of Hartford, worker’s compensation carrier for Hodges, ultimately paid over $50,000 in worker’s compensation and medical payments as a result of Williams’ injuries.

Deshotels’ automobile liability insurer was Metropolitan Property and Liability Insurance Company, which had a policy with a single limit of $15,000. Hodges, Williams and Security each filed separate lawsuits against Deshotels and Metropolitan— Hodges for property damage to the truck driven by Williams, Williams for his personal injuries, and Security for reimbursement of compensation and other benefits paid on Williams’ behalf. (Hodges joined with Security in the latter suit to recover his deductible under the worker’s compensation policy.) The three lawsuits were later consolidated.

Security subsequently amended its suit to include a demand against Metropolitan for damages for bad-faith failure to settle within Metropolitan’s policy limits. Security alleged it had offered to settle its claim for reimbursement for less than Metropolitan’s policy limits, but that Metropolitan “arbitrarily and capriciously” refused to effect such a settlement, thereby violating its obligations and duties to its insured, Deshotels, because of the judgment against him in excess of the policy limits. Security claimed that as a result of this refusal, Metropolitan was obligated for the full amount of the claifti directly to Security.

Metropolitan filed a motion to strike the amending petition or, in the alternative, for summary judgment as to the issue raised therein. Metropolitan argued that the only obligation and accountability it owed was directly to its insured, Deshotels. On December 3, 1982 defendants’ motion for summary judgment was granted. Security did not appeal that judgment at that time.

Prior to trial, Hodges settled his property damage suit against Deshotels and Metropolitan for $4,000 and Williams settled his personal injury suit for $2,000. This left only $9,000 of Metropolitan’s policy limits available to satisfy Security’s reimbursement claim; any judgment in excess of that would be against Deshotels alone.

Trial on the merits took place on March 18 and April 21, 1983. On May 17, 1983 the district court awarded judgment in favor of Security against Metropolitan in the amount of $9,000, plus interest and costs. On May 26, 1983 the district court awarded judgment in favor of Security against Des-hotels in the amount of $56,738.13, plus interest and costs. Security filed a petition for devolutive appeal, which was granted on June 8, 1983.

The record was lodged in this court on January 20, 1984. On April 3, 1984, defendant-appellee Metropolitan filed a motion to partially dismiss the appeal, on the ground that Security had failed to appeal timely the summary judgment dismissing its bad-faith claim against Metropolitan. We referred the motion to the merits of the appeal.

The primary issue addressed by Security on appeal is whether Metropolitan is liable to it for bad-faith failure to settle. As mentioned above, summary judgment dismissing this portion of appellant’s claim was rendered in December 1982; no appeal was taken. Security’s petition for appeal was filed more than six months later, after judgment had been rendered on the rest of Security’s claim. In the petition for appeal, Security specifically stated it was requesting a devolutive appeal from the judgments of May 17 and May 26, 1983; no mention was made of the December 3, 1982 summary judgment.

All summary judgments, whether they grant all or only a part of the relief prayed for, are final judgments and consequently are appealable. National Safe Corporation v. Benedict & Myrick, Inc., 367 So.2d 871 (La.App. 1 Cir.1978); see also, Levy v. Stelly, 248 So.2d 845 (La.App. 4 Cir.1971). Where no application for new trial is filed following rendition of an ap-pealable judgment, the time for taking a devolutive appeal begins to run upon expiration of the delay for applying for new trial. LSA-C.C.P. arts. 1974, 2087. Where, as happened here, no devolutive appeal is taken within 60 days of the expiration of the delay for applying for new trial, the appellate court is without jurisdiction to hear the appeal. LSA-C.C.P. art. 2088; McKean v. Campbell, 392 So.2d 129 (La.App. 1 Cir.1980).

In oral argument to this Court, however, appellant pointed out the following minute entry of November 23, 1982: “Mot. to strike taken up and argued. Mot. to strike — sustained. Mr. Vargas to prepare judgment." As signed by the trial judge, on the other hand, the judgment was rendered as a summary judgment. In contrast to a summary judgment, a judgment on a motion to strike is interlocutory and thus appealable only after final judgment on the merits. Because of the possible confusion on appellant’s part due to the discrepancy between the minute entry and the written judgment, we will briefly address the merits of Security’s claim on the bad-faith failure to settle issue.

LSA-R.S. 22:658 provides for the payment of penalties and attorney’s fees by an insurer to the insured for arbitrary or capricious failure to pay claims due an insured. The statute specifically states the penalty is “payable to the insured * * Security is not an insured under the provisions of Metropolitan’s policy; Security’s right to sue Metropolitan arose only within the confines of the Direct Action Statute, LSA-R.S. 22:655, as an “injured party.” Any rights that may have arisen as a result of Metropolitan’s settlements with Williams and Hodges, or its failure to settle for all its policy limits with Security, inure to Metropolitan’s insured, Deshotels. See Aswell v. United States Fidelity and Guaranty Co., 264 So.2d 656 (La.App. 3 Cir.1972); Michel v. Guillot, 186 So.2d 889 (La.App. 1 Cir.1966).

Thus, whether we consider the bad-faith issue on its merits or as the subject of an untimely appeal, this portion of Security’s claim must be denied.

The only question remaining on appeal is whether the trial court erred in granting Metropolitan credit for the $2,000 settlement with Johnnie Williams. Security contends that the statutory rights accruing to a compensation insurer under LSA-R.S. 23:1101-1103 include a priority over the injured employee in recovering from the insurer of the third-party tort-feasor. Appellant argues that, because the settlement between Metropolitan and Williams was confected without Security’s approval, the $2,000 payment made thereunder should not be recognized by the court.

The following are the pertinent parts of the relevant statutes:

“Any person having paid or having become obligated to pay compensation under the provisions of this Chapter may bring suit against such third person to recover any amount which he has paid or become obligated to pay as compensation to such employee or his dependents.” R.S. 23:1101.
“If either the employee or his dependent, or the employer, brings suit against a third person as provided in R.S. 23:1101, he shall forthwith notify the other in writing of such fact and of the name of the court in which the suit is filed, and such other may intervene as party plaintiff in the suit.” R.S. 23:1102.
“In the event that the employer or the employee or his dependent becomes party plaintiff in a suit against a third person, as provided in R.S. 23:1102, and damages are recovered, such damages shall be so apportioned in the judgment that the claim of the employer for the compensation actually paid shall take precedence over that of the injured employee or his dependent; and if the damages are not sufficient or are sufficient only to reimburse the employer for the compensation which he has actually paid, such damages shall be assessed solely in his favor * * *.
“No compromise with such third person by either the employer or the injured employee or his dependent shall be binding upon or affect the rights of the others unless assented to by him.” R.S. 23:1103.

R.S. 23:1101 gives the employee a right to sue a third party in tort; its last paragraph allows an employer or insurer who has paid compensation the right to a suit. R.S. 23:1102 requires that one who has brought a suit against a third party shall notify the other and the other may intervene as party plaintiff in the suit. R.S. 23:1103 provides for apportionment of damages in a suit so as to give preference to the employer’s claim for reimbursement; alternatively, if either party plaintiff compromises with the third party without consent of the other, the other’s rights are not affected.

Security refers in particular to Section 1103, arguing that Williams’ compromise with Metropolitan affected Security’s rights against Metropolitan. Security states it was entitled to the full amount of Metropolitan’s policy limits in preference to Mr. Williams’ claim because the policy limits clearly were for less than the amounts paid by Security.

In opposition, Metropolitan cites Lalande v. Index Geophysical Survey Corp., 336 So .2d 1054 (La.App. 3 Cir.1976), which held that the right to compromise a claim against a third party belongs to the injured employee or his beneficiaries and does not require the assent of his employer or its workers’ compensation carrier. Metropolitan argues,

“It is clear that the intent of [R.S. 23:1103] provides that the employer (or workman’s compensation carrier) is entitled to recover his damages taking precedence over that of the injured employee only if a judgment is rendered. Since the compromise entered into by Metropolitan [was] prior to the ultimate judgment rendered in the case, Security is not entitled to any credit or reimbursement of any of the compromised funds from Metropolitan. * * *”

We distinguish Lalande, however. The settlement in that case was made under a hold-harmless agreement, under which the injured worker agreed to defend and indemnify the third-party tort-feasors against the intervention of the compensation carrier. The court ruled that the compensation carrier was not entitled to judgment in its favor before trial on the merits of the tort claim. Rather, the court pointed out in dicta, the intervenor’s remedy was to pursue its claim against the third party. At trial on the merits, the plaintiffs, defending the tort-feasor pursuant to the hold-harmless agreement, presented evidence of their own contributory negligence; the court concluded this would have barred the plaintiffs’ own recovery in tort, and therefore it barred recovery by the compensation carrier.

In Stafford v. Dow Chemical Corp., 415 So.2d 393 (La.App. 1 Cir.1982), the court held that apportionment of a judgment under R.S. 23:1103 takes place only where the employer or his insurer has intervened in the employee’s lawsuit. However, the Stafford case did not decide any rights between the compensation carrier and the tort-feasor, but merely determined whether the compensation carrier could claim a credit against the obligation it later owed the injured worker.

We see no difference in the legal rights between the parties, whether there is an intervention as provided by Section 1102 or both parties sue and the cases are consolidated as occurred here. The main consideration is a determination of the rights of the parties-plaintiff against the defendants. The law as it existed at the time relevant to this case seems to provide for a joint consideration of those rights. In other words, if a judgment is rendered, then the details of the judgment and the allotment of the money are set out specifically in the statute. The statute does not specifically set out how the money is to be apportioned when a compromise has occurred. Presumably, however, the legislature was not concerned with that at all, because the statute does not provide for a compromise binding on both parties without the consent of both parties. If there is a compromise by one without the other’s consent, the law specifically states that the compromise shall not be binding upon or affect the rights of the other.

As applied to our case, the plain language of R.S. 23:1103 mandates that the compromise effected by Williams without the consent of Hodges and Security cannot be binding upon or affect the rights of the latter litigants.

Holtzclaw v. Falco, Inc., 355 So.2d 1279 (La.1978), upon which the district judge relied in awarding Security only $9,000 against Metropolitan, is not decisive of the problem in our case. Holtzclaw involved simply a question of direct actions in tort for damages and had nothing to do with workers’ compensation cases. Indeed, the Holtzclaw court remarked that there is nothing in the Direct Action Statute giving a right of action other than under the terms of the insurance policy made the basis of a direct action suit. We point out that in the workers’ compensation statutes there is a direct and extra right of suit given without regard to R.S. 22:655.

Accordingly, we conclude that Security is entitled to recover from Metropolitan the $2,000 paid to Williams in the compromise made without Security’s consent.

For the foregoing reasons, the judgment of May 17, 1983 is amended to increase to $11,000 the amount awarded to Security Insurance Company of Hartford against Metropolitan Property and Liability Insurance Company. In all other respects, the judgments appealed are affirmed.

JUDGMENT OF MAY 17,1983 AMENDED AND AFFIRMED; JUDGMENTS OF DECEMBER 3, 1982 AND MAY 26, 1983 AFFIRMED.


author: BOUTALL, Judge.

text:
    STATE of Louisiana v. Linda D. WILLIAMS.
    No. 84-KA-23
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 11, 1984.

      John L. Peytavin, Asst. Dist. Atty., Lutcher, for State of La., plaintiff-appellee.
    Thomas L. Lorenzi, Lake Charles, for Linda D. Williams, defendant-appellant.
    Before BOUTALL, CHEHARDY and GRISBAUM, JJ.
   BOUTALL, Judge.

As a result of an automobile collision on December 20, 1982, defendant Linda D. Williams was charged in two separate bills of information with violation of R.S. 14:32, negligent homicide, and R.S. 14:98, driving while intoxicated. After some preliminary pleadings, she entered a plea of guilty on both charges and a pre-sentence investigation was conducted. On December 2, 1983, she was sentenced to serve two years in the custody in the Department of Corrections on the negligent homicide charge, and sentenced to pay a fine of $500.00 and serve three months in the Parish prison for the driving while intoxicated charge. The sentences were to run concurrently unless she failed to pay the fine in which case the sentences were to run consecutively.

The defendant now appeals from those sentences assigning as error the imposition of an excessive sentence which constitutes cruel and unusual punishment, and the failure of the trial judge to comply with Article 894.1 of the Louisiana Code of Criminal Procedure.

The facts elicited from the record show that on the evening of December 20, 1982, Linda Williams was returning to her home in Baton Rouge from New Orleans. As she travelled westbound on Interstate 10 East in the Parish of St. James, she apparently lost control of her car, crossed the median directly into the path of oncoming traffic, and struck head-on the vehicle driven by the victim, William Magdoff. The victim was pronounced dead at the scene of the accident from multiple major injuries, including partial decapitation. The victim’s vehicle had been immediately ahead of a vehicle driven by Gigi Demarie, Mr. Mag-doff s girl friend, who witnessed the entire accident. The defendant herself was taken to a hospital, where she was treated for a dislocated hip and other minor injuries. A blood sample taken from the defendant at that time, approximately two hours after the collision, revealed that her blood alcohol level was .18%. See R.S. 32:662(A)(l)(c).

The penalty for the crime of negligent homicide, R.S. 14:32, is imprisonment with or without hard labor for not more than five years, a fine of not more than $5000.00, or both. The penalty for violation of R.S. 14:98, operating a vehicle while intoxicated, as of the date of the crime was a fine of not less than $100.00 nor more than $400.00, and in addition, the imposition of imprisonment in the parish jail for not less than 30 days nor more than 6 months or imposition of an order for the defendant to undergo treatment at a substance abuse treatment facility.

The sentences imposed as noted above are clearly within the máximums permitted under the law. Nevertheless, the Louisiana Supreme Court has held that imposition of a sentence, although within the statutory limit, may violate a defendant’s constitutional right against excessive punishment that is enforceable on appellate review. State v. Sweeney, 443 So.2d 522 (La.1983); State v. Daranda, 398 So.2d 1053 (La.1981); State v. Sepulvado, 367 So.2d 762 (La.1979). In addition, the trial court must consider in imposing sentences the statutory principles laid down in Article 894.1 of the Code of Criminal Procedure. Accordingly, the trial judge’s reasons for imposing sentence are an important aid to an appellate court called upon to review a sentence complained of as excessive. State v. Bradley, 414 So.2d 724 (La.1982); State v. Forshee, 395 So.2d 742 (La.1981).

In the instant case, the trial judge clearly complied with the provisions of C.Cr.P. Article 894.1. Indeed he gave quite lengthy and comprehensive written reasons for sentencing the defendant as he did. He pointed out that in sentencing the defendant to a period of incarceration, he had taken into consideration the social history, letters he received from family and friends of both the defendant and the victim, the presentence investigation report and its recommendations, the police report, and the applicable jurisprudence. He specifically alluded to multiple Article 894.1 facts, stating that he felt that there was an undue risk that defendant would commit another crime, that the defendant was in need of correctional treatment in a custodial environment, and that he felt that any lesser sentence would deprecate the seriousness of the crime. The judge then reviewed the factors relevant to a determination of a suspension of sentence or probation and applied each factor to this particular defendant’s circumstances, concluding that despite Mrs. William’s good family background, marital status, lack of prior criminal history and other mitigating factors, her conduct calls for severe condemnation. It is plain that the trial judge not only considered the guide-lines in particularizing his sentence to Mrs. Williams, he articulated his analysis and application of each individual criterion included in the statute. Clearly his was a studied rather than an arbitrary decision and constitutes full compliance with the statutory requirements.

Passing now to the constitutional question as to whether the sentence is excessive, the general rule is that a sentence is excessive if it makes no measureable contribution to acceptable goals of punishment and hence is nothing more than the needless imposition of pain and suffering, and is grossly out of proportion to the severity of the crime. State v. Conn, 420 So.2d 1123 (La.1982); State v. Williams, 397 So.2d 1287 (La.1981), appeal after remand 414 So.2d 371 (La.1982); State v. Bonanno, 384 So.2d 355 (La.1980). To determine whether the penalty is grossly disproportionate to the crime, we must consider the punishment and the crime in light of the harm to society caused by its commission and thus ascertain whether the penalty is so disproportionate to the crime committed as to shock our sense of justice. State v. Lodrige, 414 So.2d 759 (La.1982); State v. Goode, 380 So.2d 1361 (La.1980).

In reviewing the defendant’s background, we note that Linda Williams is a 39 year old mother of two sons aged 11 and 13. She has been married for some 18 years and has been employed almost continuously since 1965. She has a good educational background, having completed 2 years of junior college and various business courses, and has a realtor’s license. She has been active in her church and several youth organizations, and a number of relatives, friends and associates have written letters recommending that she not be incarcerated. Since the time of the accident, she has been receiving counseling from a psychiatrist and psychologist because of her feelings of guilt and remorse resulting from the victim’s death.

As to the facts of the accident, we have related them briefly above. There is no explanation offered except that Mrs. Williams was highly intoxicated, lost control of her vehicle, veered from the westbound lanes of Interstate Highway 10, crossed the median, entered the eastbound traffic lanes and collided with the victim’s vehicle.

The victim, William Magdoff, was a 19 year old student at Louisiana State University, who was returning home to New Orleans for the holidays. His girl friend, Gigi Demarie, was following immediately behind him in her own vehicle when the collision took place. It is apparent from her testimony that the victim had no chance to avoid the accident and that his body was severely crushed and mutilated. His tragic and untimely death was a great loss to his parents and friends, as well as to the community.

While there are several mitigating factors that would tend to support a lesser sentence than that imposed by the trial judge, and certainly she did not intend the victim’s death, nevertheless we must consider that the defendant placed herself into a condition of high intoxication before embarking upon a long journey to Batón Rouge from New Orleans and we find no grounds to excuse or justify such conduct. The trial judge gave great attention to the mitigating factors as well as those factors which demonstrate the necessity of imprisonment, and we agree with his determinations. We refer to the case of State v. Green, 418 So.2d 609 (La.1982) which posed a somewhat similar balance of mitigating circumstances. In affirming a three year sentence of imprisonment, the court noted at page 615 the following:

“Ultimately, it appears that the considerations to be weighed are fairly clear. The defendant is basically a good person, having no criminal record, who is a productive member of society and a caring mother, and clearly is unlikely to commit another crime. On the other hand, the crimes she committed were extremely costly to society and the victim’s families, having taken the lives of two promising young people. Her crimes also demonstrate a need for more severe punishment as a deterrent and example for others who would drive motor vehicles while under the influence of alcohol.”

In applying these principles to the facts in this case, we conclude that the sentences imposed by the trial judge were within reason and do not amount to constitutionally excessive punishment. We do not consider that the mitigating circumstances outweigh the need to impose a sentence of incarceration in order to prevent further depreciation of respect for the law and to discourage other potential law breakers from the dangerous criminal conduct of operating a motor vehicle under the influence of alcohol.

The defendant’s sentences are affirmed.

AFFIRMED.


text:
    John COTTON v. CUMMINS ENGINE COMPANY, et al.
    No. 84-CA-46.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 11, 1984.

      Emile L. Turner, Jr., Turner, Young & Hebbler, New Orleans, for John Cotton, plaintiff-appellant.
    Benj. R. Slater, Jr., Benj. R. Slater, III, Edward T. Meyer, Monroe & Lemann, New Orleans, for Cummins Engine Co., defendant-appellee.
    W. Richard House, Jr., Louis Simon, II, Milling, Benson, Woodward, Hillyer, Pier-son, & Miller, New Orleans, for Kenworth Truck Co., defendant-appellee.
    Before BOUTALL, CHEHARDY and DUFRESNE, JJ.
   BOUTALL, Judge.

This is a suit for redhibition or breach of warranty. From a judgment in favor of the defendants, the plaintiff has taken this appeal. We affirm.

On October 15, 1979, the plaintiff, John Cotton (“Cotton”) purchased a tractor manufactured by Kenworth Truck Company (“Kenworth”) and equipped with a Cum-mins diesel engine, from the Whitlow Truck Center, Inc. (“Whitlow”). The tractor was to be used in sand and gravel hauling and cost $50,700. Cotton took the vehicle back to Whitlow for certain minor corrections on November 5, 1979, and January 21, 1980.

In November Cotton complained of excessive oil consumption and loss of power on acceleration, for which he was referred to Cummins Sales & Service (“Cummins Sales”), a factory authorized dealer for service on Cummins engines. The dealer calibrated the fuel pump, replaced the dipstick, and steam cleaned the engine. Cotton was told that it was too early to “go into the engine” and was given oil consumption sheets and told to record oil added and oil changes. Cotton did not return to Cum-mins Sales until June 5, 1980, when the truck developed a water pump problem. Cummins Sales removed and rebuilt the water pump.

On June 20,1980, the event which precipitated this litigation took place. The engine “locked up” or “seized” when Cotton was driving in St. Tammany. The vehicle was towed to Cummins Sales, which determined that the problem was multiple bearing failure. Although the engine was covered by a Cummins warranty for 100,000 miles, the local company told him the bearings would have to be sent away for analysis to determine whether this was a war-rantable failure. If not, Cotton would have to pay for the repairs, estimated to cost $6,815.00. On July 11, 1980, Cotton had New Orleans Truck Center tow the tractor away from Cummins Sales and do the repairs at a cost of $7,382.99.

Cotton filed suit on October 15, 1980 against Cummins Sales & Service, Inc., Kenworth Truck Company, and Whitlow Truck Center, Inc. for redhibition and violation of warranty. He later amended to substitute the engine manufacturer, Cum-mins Engine Company (“Cummins”) in place of Cummins Sales & Service, Inc. Whitlow filed Chapter 11 bankruptcy proceedings and was severed from the suit for the duration of the automatic stay. Trial was held March 11 and March 18, 1983. On May 2, 1983 judgment was rendered in favor of the remaining defendants, Cum-mins and Kenworth, and against the plaintiff, dismissing his demands and casting him for all costs. After the plaintiffs motion for a new trial was denied, he filed for a devolutive appeal.

The issues before this court are: 1) whether the plaintiff carried his burden of proof for redhibition or reduction in price; 2) whether there was a breach of warranty by Cummins or by Kenworth.

The applicable law is found in the Louisiana Civil Code, Book III, Title VII, of Sale, Section 1, “Of the vices of the thing sold, which give occasion for the redhibi-tory action,” articles 2520, 2530, 2531; Section 2, “Of the vices of the thing sold which occasion a reduction in price,” articles 2541 and 2543; and Section 3, “of the vices of the things sold which the seller has concealed from the buyer,” article 2545.

A succinct summary of the jurisprudence on the burden of proof in redhibition or quanti minoris appears in Millspaw v. Knight, 430 So.2d 1207 (La.App. 1st Cir. 1983), at 1208:

“A redhibitory defect is one which renders a thing absolutely useless or its use so inconvenient and imperfect that it must be presumed the purchaser would not have bought the thing had he known of the defect. La. Civil Code art. 2520. In order to be successful in a suit for redhibition (or in quanti minoris), the plaintiff must prove that the thing contained a redhibitory defect; that the defect existed at the time of the sale; and that the defect could not have been discovered by ordinary inspection. See Prat v. Heymann 410 So.2d 343 (La.App. 4th Cir.1982); Jofforion v. Leglue Buick, Inc., 399 So.2d 762 (La.App. 3rd Cir. 1981). It is noted a plaintiff in a redhibition suit need not prove the cause of the defect. See Weber v. Mathews, 367 So.2d 1326 (La.App. 4th Cir.1979).”

See also Rey v. Cuccia, 298 So.2d 840 (La. 1974).

Cummins Sales contends that the bearing failures were due to “oil starvation” and improper care of the vehicle, which had run 49,608 miles when the engine stopped. Cotton’s position is that a redhibitory defect in the engine had caused it to lose oil.

In the trial judge’s reasons for judgment, he said:

“The vice or defect spoken of [in LSA-C.C. art. 2530] must be proved to have existed prior to sale by a preponderance of the evidence. While there has been some evidence introduced as to a seizure of plaintiff’s engine, it is not of sufficient weight whereby it may be adduced that said seizure was more probably than not due to a vice or defect present prior to sale.”

The record clearly reveals that Cotton’s engine failed because of a lubrication problem. However, as plaintiff, Cotton had the burden of proof that the problem was caused by a defect existing at the time of the sale or that the problem was included in the warranty. We agree with the trial judge that Cotton failed to discharge his burden.

Stephen Milano, the service manager for Cummins Sales, testified as an expert in truck diesel engines and as a fact witness. He had supervised the mechanic who broke down the engine after the truck was towed in on June 19 and examined the engine at every step. He stated that they removed the oil pan and found it contained about 6 gallons of oil that was fairly clean. He personally checked for oil leaks and water leaks. They removed the oil pump, checked all the oil drillings they could reach without taking the engine from the truck, and blew air through the lubricating system. They found the entire oil system to be working. They examined the main bearings. The only damage found in the engine was to the six rod bearings, a crankshaft and a connecting rod. The bearings showed signs of heat, indicating oil starvation or lack of lubrication at one time. Milano stated that the only time Cotton complained of excessive oil consumption was on November 26,1979, when the forms were given to him to record oil additions and changes. Cotton stated he mentioned an oil problem when he came in with the water pump problem on June 5.

The plaintiff’s expert, Ryan Uhlich, had not been listed as a witness in the pretrial order and was allowed to testify only in rebuttal. Uhlich had worked in the engine business for 28 years. He was qualified as an expert in the field of diesel engines, with a subspecialty in failure analysis. Uh-lich had not examined the engine before New Orleans Truck Center repaired it. Based on his hearing the testimony, inspection of the rod bearings that had been removed from the truck, and the repair invoices and depositions, Uhlich also believed the engine had failed because of inadequate lubrication. He put forth four possibilities as to the cause: 1) the bearings having been damaged from a lack of prelubricating when tested at the engine assembly plant, or at the truck dealership or at a later time; 2) a faulty bypass valve or one that was stuck in the open position so that oil did not reach the vital parts; 3) a faulty water pump that resulted in contaminated lube oil; or 4) the engine’s having been run with insufficient oil. Uhlich felt the most likely cause was that the bearings had been damaged during testing at the factory or after being placed in the truck chassis at the truck dealership.

The credibility of the witnesses in this case is crucial, and the trial judge is in a better position to make such a judgment than we are. Stephen Milano had actually supervised the dismantling of the engine and had seen all the components. His testimony negated all possibilities suggested by the plaintiffs expert other than the vehicle’s having been run with insufficient oil. Ryan Uhlich could only speculate on the cause of the engine failure, as he had not seen the engine in its damaged state. We note that the plaintiff did not call a witness from the New Orleans Truck Company, which eventually did the repairs. We agree with the trial judge that the testimony of the person who actually examined the engine outweighs that of the expert who did not.

The plaintiff’s argument that the repair was covered under the Cummins warranty is without merit. The warranty states under “Limitations” that:

“Cummins is not responsible for failures resulting from Owner or operator abuse or neglect such as: operation without adequate coolant, fuel or lubricants; overfueling; overspeeding; lack of maintenance of lubricating, cooling or air intake systems; improper storage, starting, warm-up, run-in or shut-down practices.”
“Before a claim for excessive oil consumption will be considered, Owner must submit adequate documentation to show that consumption exceeds Cummins published standards.”

Milano stated unequivocably that Cotton had never returned the completed oil consumption records which were given to him in November, 1979, and were to be returned after he had driven the vehicle 10,-000 to 15,000 miles. Cotton testified that he returned the forms on June 5, 1980.

The Kenworth warranty, signed by Cotton, clearly excepts “engines, automatic transmissions, tires, wheels, fifth wheels and trade accessories, which are warranted to you by their respective manufacturers.”

For the reasons stated above, we find the judgment appealed from to be correct and, accordingly, we affirm.

AFFIRMED.

      . Classic Manufacturing, Inc., a custom accessory manufacturer, was added as defendant but dismissed on the first trial day.


text:
    Doretha GILMORE v. ALTON OCHSNER MEDICAL FOUNDATION.
    No. 84-CA-150.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 11, 1984.

      Ford T. Hardy, Jr., New Orleans, for Doretha Gilmore, plaintiff-appellee.

      Perry R. Staub, Monroe & Lemann, New Orleans, for Alton Ochsner Medical Foundation Hospital.
    Before BOUTALL, CHEHARDY and DUFRESNE, JJ.
   BOUTALL, Judge.

This is a workman’s compensation case. From a judgment finding the claimant totally and permanently disabled, the defendant employer has appealed and the plaintiff has filed a cross appeal.

The claimant is Doretha Gilmore, a thirty-year old woman who was injured in a fall while working as a housekeeper at Ochsner Hospital on August 4, 1982. While cleaning some tile above a tub-shower, she slipped and fell into the tub. She went to the Ochsner emergency room, complaining of pain in the head, right shoulder, and right hip. Shortly afterward she began having severe pains in her back. She was referred to a staff orthopedist who pronounced her able to return to work on August 31, 1982. She felt she was in too much pain to work and sought legal help in obtaining worker’s compensation benefits. She did attempt to return to the job in November, 1982 but reported to the Ochs-ner emergency room with back pain. Early on New Year’s morning, 1983, she was injured in a second accident, when an automobile she was driving was hit by another. From August 4, 1982 to the date of trial she continued to receive medical treatment from physicians to whom her several successive attorneys referred her.

Trial was held on June 27, 1983, but was continued as an open case to allow further testimony or depositions of witnesses who were unable to appear at trial. No testimony or depositions were filed into the record after trial. Judgment in favor of the plaintiff was rendered on September 27, 1983, finding Doretha Gilmore to be totally and permanently disabled as a result of the job-related accident. The court denied penalties for arbitrary or capricious termination of benefits. The employer appealed the judgment, and the employee cross-appealed that portion of the judgment denying penalties and attorney’s fees.

The defendant raises two issues: first, whether the on-the-job accident caused a permanent and total disability; and second, whether worker’s compensation benefits should have been granted for disability resulting from the later automobile accident or, in the alternative, whether the court should have distinguished damages incurred as a result of the accident at the hospital from those incurred in the automobile accident. The plaintiff raises a third issue, whether Ochsner terminated her compensation benefits in an arbitrary and capricious manner.

Total and permanent disability. Although the procedural rules in worker’s compensation cases are construed liberally in favor of the claimant, he bears the burden of proving:

.“... by a preponderance of the evidence: that he received personal injury by accident arising out of and in the course of his employment; that he is disabled; and, that his disability resulted from injuries sustained in the work-related accident. See Laughlin v. City of Crowley, 411 So.2d 708 (La.App. 3 Cir.1982), and authorities cited therein.” Stanfield v. Insurance Company of North America, 420 So.2d 1296 (La.App. 3rd Cir.1982), writ denied, 423 So.2d 1180 (La.1982), at 1297.

The trial judge stated in his reasons for judgment that he believed that Ms. Gilmore’s injuries were caused by the original accident at work rather than by the automobile accident. He based his judgment on the reports of physicians treating her before December 31, 1982 and her continuing complaints of pain. At trial testimony was given by one physician only, Dr. Luis Bo-gran, who had first examined her on March 24, 1983 and was still her physician at time of trial.

The determination of whether Ms. Gilmore was in fact disabled by the work-related accident is complicated by the occurrence of the second accident and by her changing physicians at that time. Therefore, we have examined very closely the reports of the physicians who saw her before December 31, 1982 but were not called as witnesses.

It is important to note that Ms. Gilmore stated in a January 9,1981 personal history at Ochsner Medical Center that she had not had any back trouble. Dr. Duncan, the Ochsner orthopedist who saw her on August 24, 1982, reported that the x-rays were negative, but that she reported severe pain. His opinion is as follows:

“I do not find any present significant orthopaedic problem. The patient has subjective complaints without significant objective findings.
“The patient is exaggerating her complaints.
“In my opinion, the patient should return to work.”

The report of Dr. Arthur Z. Blamphin dated December 20, 1982, reveals the following: When he first examined Ms. Gilmore on August 31, 1982, she complained of pain in the back of the head, the right shoulder, and low back. He found: limitation of motion and tenderness upon palpation of the neck; normal motion of the shoulder but tenderness of the right upper deltoid muscle; and as to the back tenderness of the lumbosacral joint, positive straight leg raise test at 70 degrees, and pain upon bending forward, which she could perform to the lower one-third of her leg. After treating her with pain pills and physical therapy treatments, Dr. Blamphin informed her attorney that she should be referred for an orthopedic consultation as she was still complaining of pain. In her last visit on September 29, 1982, she complained of a stiff neck, stiff right shoulder, headaches, and painful and stiff back. Dr. Blamphin’s summary reads as follows:

“Impression: 1. Contusion injury to head with post traumatic cephalalgia.
2. Cervical strain.
3. Lumbosacral strain.
Prognosis: Good
Impairment: No permanent impairment expected.
Disability: Undetermined.”

Dr. Charles R. Billings, the orthopedist to whom the attorney sent Ms. Gilmore, reported that his examination on September 24, 1982 was limited to the lumbar spine and both lower extremities. His summary is as follows:

“Lateral and A-P radiographs of the lumbar spine were obtained at her initial office visit that disclosed no significant disc space narrowing. There was minimal evidence of degenerative joint disease.
“The initial impression was that of lumbar strain with possible lumbar disc disease. Conservative management was advised and Meclamen was prescribed as a nonsteroidal anti-inflammatory agent. Proper body mechanics were also discussed concerning the lumbar spine region. Lifting and bending should be restricted activities.”

She was told to return in one month for reassessment but apparently did not.

Ms. Gilmore’s second attorney referred her to Dr. Joseph Rauchwerk, an orthopedic surgeon, who saw her first in October, 1982 for evaluation of her right shoulder and lower back. Dr. Rauchwerk reported that straight leg raising was negative both in sitting and in the supine position. His summary of the first visit is as follows:

“IMPRESSION AND OPINION: The subjective complaints and physical examination are consistent with grade I my-ofascial sprain of the lumbosacral spine superimposed on preexisting early degenerative changes of the L5-S1 facet joint on the left side. Mild contusion of the right shoulder.
The treatment plan will consist of back conditioning exercises and a rehabilitation program for low back and the right shoulder.
Please note that the estimated length of disability should not exceed six to eight weeks from the time of the initial examination (10/4/82).”

Ms. Gilmore was treated by the physical therapy department at Touro Infirmary five times between October 26 and November 3.

On November 15, Dr. Rauchwerk informed the compensation insurer that she could return to work. An Oehsner emergency room report and an “employee work-related accident report” indicate she did return to work the next day, November 16, 1982, but reported to the emergency room complaining of pain in the shoulders, upper right arm, and low back. The physician’s impression as stated on the accident report was, “Low back pain (R) shoulder following injury; continue pain med.” She was instructed to go home for one day and then see Dr. Goodman in physical medicine. She apparently did not follow through on the referral to Dr. Goodman but returned to Dr. Rauchwerk, who saw her twice more, on November 22 and December 6, 1982. She complained of recurrent swelling of the shoulder joint, which Dr. Rauchwerk thought might be a “nonspecific arthritic condition.”

It is possible for a severe back problem to manifest itself only in a patient’s subjective complaints of pain. The Supreme Court in Martin v. H.B. Zachry Co., 424 So.2d 1002 (La.1982) held that a causal connection existed between a work-related accident and a ruptured disc that was discovered and surgically corrected two years later. The employee had had no previous back trouble but was in continuous pain from the time of the accident. Tests and examinations over the two year period were reported as normal, but the last surgeon consulted disagreed with interpretations of previous physicians and performed the operation. See also a case with similar findings and a similar holding by the appellate court, Bridgewater v. Crown Zellerbach, 449 So.2d 515 (La.App. 1st Cir.1984). In both the Martin and the Bridgewater cases the plaintiff’s proof was eased by the fact that surgery was eventually performed, confirming the disability. In both cases the physicians acknowledged that testing is not 100 percent accurate and that interpretations can be wrong.

The trial judge found that Ms. Gilmore suffered pain from the work-related accident that was severe enough to constitute total disability. The trier of fact must make the factual assessment of the extent of the plaintiff’s pain. His determination will not be distrubed on appeal where the evidence furnishes a reasonable basis for his finding, unless it is clearly wrong. Ellis v. Rapides Parish School Bd., 419 So.2d 990 (La.App. 3rd Cir.1982) and cases cited therein. The evidence in the case before us does support Ms. Gilmore’s being in pain, even though the physicians were not able to find an objective basis for the amount of pain reported.

Second Accident Away From Work. The general rule regarding aggravation of a work-related injury by a subsequent trauma is summarized in Stewart v. Hospitals Affiliates Intern., Inc., 394 So.2d 647 (La.App. 1st Cir.1980), affirmed, 404 So.2d 944 (La.1981), at 650:

“An injury which is work related that is aggravated by an off the work accident is compensable only if there is a causal relation between the off the job accident and the work related injury. Bolden v. Georgia Cas. & Sur. Co., 363 So.2d 419 (La.1978) and Carter v. Rockwood Ins. Co., 341 So.2d 595 (La.App. 2nd Cir.1977).”

The existence or not of a causal relationship between the two traumas is a difficult distinction to make. Malone and Johnson, in “Workers Compensation,” Louisiana Civil Law Treatise, Vol. 13 (2nd Ed.1980) Section 236, point out that often where compensation has been allowed, the second injury is in some way a foreseeable or natural consequence of the earlier work-related disability. The determination was relatively easy in Carter v. Rockwood Ins. Co., 341 So.2d 595 (La.App. 2nd Cir.1977), in which a waitress injured her knee on the job, then broke the same leg several months later, owing to the weakness of the leg from the first injury. The same reasoning was followed by the court in Kelly v. City of New Orleans, 414 So.2d 770, (La.1982). The decision to order corrective surgery for a policeman’s reinjured shoulder turned on the physician’s opinion that there was a 75% chance that a work-related shoulder injury would recur. In Simon v. Commercial Union Assur. Co., 389 So.2d 1367 (La.App. 3rd Cir.1980), a woman suffered a lumbar strain with nerve root injury in a fall at work and her back condition was worsened two months later, when her child came up behind her and made her jump. The court, without discussion of the issue of causal connection, ordered payment of compensation extended to the recuperative period of the second trauma.

Judgments of the courts have varied where the second trauma results from the negligence of a third party, frequently in an automobile accident. In Kelly v. Violet Packing Co., 405 So.2d 542 (La.App. 4th Cir.1981), writ denied, 409 So.2d 670 (La. 1981), the plaintiff suffered a work-related injury requiring back surgery and was later hurt in an automobile accident. He was unable to return to work because of continuing back and leg pain. In allowing full compensation, the court accepted the treating physician’s opinion that the shaking up of the second accident aggravated and brought to light a disc injury that was caused by the first accident.

In Allstate Ins. Co. v. Theriot, 362 So.2d 1214 (La.App. 4th Cir.1978), reversed on other grounds, 376 So.2d 950 (La.1979) the court considered new injuries to a previously injured neck in a later automobile accident to be unrelated to the on the job accident. As authority for its position the court cites Malone’s “Workmen’s Compensation,” Louisiana Civil Law Treatise, Volume 13 (1951), Section 233, to the effect that, despite the courts’ liberal attitude toward complications of a work-related injury resulting from an independent cause, the employer:

“ ‘. should not be charged for independent harms which the employee sustains while under treatment where such harms not related in fact to the accident which occurred on the job ....’”

Malone, supra, in Allstate Ins. Co. v. Theriot, supra, at 1217.

Returning to the case before us, the following facts are important in considering the effects of Ms. Gilmore’s automobile accident. Ms. Gilmore consulted a new attorney who referred her to a new physician. Dr. D.L. Kewalramani saw her on January 4, 1983 and reported the following findings: 1) myofascial cervical region pain syndrome; 2) soft tissue injury to the right shoulder producing mild bicipital tendonitis; 3) chronic myofascial lumbar region pain syndrome; 4) severe depression, “probably related to the previous injury, pain and altered sexual activity and also this trauma has aggravated the depression.” Dr. Kew-alramani saw her again on January 18, January 21, and February 9. On those visits the physician found Ms. Gilmore clinically improved but complaining of worse pain. Dr. Kewalramani attributed the pain to depression and on March 9 discharged her when she asked for a renewal of an analgesic prescribed by another physician.

Ms. Gilmore hired her present counsel and was referred to Drs. Raul Reyes and Dr. Luis Bogran, her current physicians, shortly after her last visit to Dr. Kewalra-mani. Her first examination was made by Dr. Reyes, and subsequent treatment, including a period of hospitalization in April, 1983 was by Dr. Bogran. Her complaints were of headaches, pain in the right shoulder and low back, and a stiff neck.

Dr. Bogran testified that he felt in all likelihood Ms. Gilmore did not have a ruptured lumbar disc, as she had been given a CAT scan and electromyogram which were reported as normal. Following a ten day stay at Touro she felt much better in early May; however, shortly thereafter she regressed and showed little or no improvement thereafter. Dr. Bogran was unable to determine the effects of the second accident. Dr. Bogran stated that as to the back:

“Well, once you have an injury to an area, it is difficult to say how much a second injury has contributed to the symptoms at any one point and how much the second incident or accident contributed to the length of recovery.”

He testified that he reviewed the reports of other physicians regarding the August 1982 accident and found:

“Well, she definitely had an injury that affected her back. The history that she gave me was because of the fall that she — where she injured herself in August of ’80 [’82]. I believe it was August of ’80 [82]. It was a pretty nasty fall. I would expect her to have pain for two or three months, gradually decreasing her range of motion, gradually improving. Now, I absolutely cannot tell you how much the second accident prolonged her recovery, if at all.”

Dr. Bogran felt she was unable at time of trial to return to her job in the housekeeping department.

When the court asked Dr. Bogran to estimate the length of time from trial to full recovery, the physician stated:

“At the rate that she has improved, which has been kind of slow, I would estimate three to five weeks or about a month. I think that most healthy people like her would have recovered in a couple of months, two or three months from this type of injury.”

We find that the trial judge was correct in his determination that the second accident was not the cause of the symptoms complained of at the time of trial. The localities of Ms. Gilmore’s pain remained the same, although her legs were also hurt in the automobile accident. As held in Kelly v. Violet Packing Co., supra, we hold that a second non-work-related injury which aggravated the work-related injury does not preclude the plaintiff from receiving full benefits.

We pretermit the question of whether the odd lot doctrine applies to this case, because the defendant has the right to petition for a modification of the decree of permanent total disability and have the plaintiff reexamined from time to time during the period of compensation. LSA R.S. 23:1121.

Penalties and Attorneys’ fees. Ochsner terminated Ms. Gilmore’s benefits as of March 15, 1983, upon receiving a report from Dr. Kewalramani, suggesting her complaints were not consistent with medical findings. The trial judge stated, in his reasons for judgment that Ochsner was not, arbitrary or capricious in terminating the benefits in March, 1983, because there was at that time a genuine dispute as to which accident caused her disability. This determination is supported by the record.

Accordingly, for the reasons discussed above, the judgment appealed from is affirmed.

AFFIRMED.


author: BOWES, Judge.

text:
    Roy COLLINS v. FIRST BAPTIST CHURCH OF KENNER, Officers and Board of Directors, L.N. Benton, W.O. Davis, and E.C. Benton, Preferred Risk Insurance Companies.
    Nos. 84-CA-24, 84-CA-25 and 84-CA-28.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 11, 1984.

      Stephen J. LaBorde, Metairie, for plaintiff-appellant.
    Lloyd W. Hayes, Adams & Reese, New Orleans, for defendants-appellees.
    Before BOWES, CURRAULT and GAU-DIN, JJ.
   BOWES, Judge.

Plaintiff, Roy Collins, appeals a decision of the trial court dismissing his petition for damages against defendants, First Baptist Church of Kenner, officers and Board of Directors, L.N. Benton, W.O. Davis, and E.C. Benton, and Preferred Risk Insurance Companies. We affirm the judgment of the trial court.

In April 1979, the First Baptist Church of Kenner contracted with a general contracting firm, Claiborne Builders, Inc., to expand its sanctuary and to develop a courtyard on the church property.

As part of the project, Claiborne sub-contracted the needed air-conditioning work to Ackerman Refrigeration, the plaintiff’s employer. On August 29, 1979, Roy Collins and a fellow Ackerman employee, Roy For-tunia, were installing air-conditioning duct work in the attic of the church sanctuary. Collins and Fortunia had finished the particular task undertaken in the area of the attic near the “sound room” and, after gathering up his tools, Mr. Collins started to exit the attic. As he proceeded from his work area to the attic entrance, Mr. Collins fell through a light fixture in the sanctuary ceiling to the pews below, injuring his knee. Plaintiff alleged that his fall resulted from stepping on an attic beam that broke and/or that the church was negligent in not providing planking or adequate lighting in the attic for the workers.

The defendants contended that no beam broke and that plaintiff’s injury resulted from his own negligence in attempting to balance on ceiling beams with his hands full of tools and in losing his balance causing him to fall thru the light fixture. Defendants also contended that plaintiff assumed the risk of his injury and, further, that the attic was under the complete control and custody of the general contractor and his subcontractors, who were totally responsible for the working conditions of their employees.

Of the four witnesses who testified at trial concerning Mr. Collins’ accident, only the plaintiff, himself, stated that unequivocally his fall was caused by the breaking of a structural support beam. However, Mr. Collins went on to testify that he neither saw a rafter break, nor did he ever return to the attic to inspect the damage.

Roy Fortunia, the plaintiff’s co-worker in the attic at the time of the accident, testified that he and Mr. Collins had been working in the attic for approximately two weeks preceding the accident. He stated that he did not see Mr. Collins fall, but only heard the noise. On direct examination, Mr. Fortunia said that following the accident he went downstairs to the church to where Mr. Collins landed and, from that position, he observed a 2 x 4, or a 2 x 6, board hanging from the hole where the light fixture had been. But, under cross-examination, he testified that the board he saw dangling from the ceiling after the accident was not a beam or joist but a header of the frame around the light. He further stated that he did not go back into the attic to see if any other board was broken.

Reverend Tom Hodge, who was the assistant pastor of the First Baptist Church of Kenner at the time of the accident, testified that he arrived on the scene shortly after Mr. Collins’ fall (he was summoned from his office in another building) and that, after arranging for an ambulance for the plaintiff, he went up into the attic to inspect the damage. Reverend Hodge declared that he saw no broken boards during his inspection of the attic and that only the area around the light fixture needed to be repaired.

Finally, Jerry Lemoine, the vice-president of Claiborne Builders, testified that after being informed of the accident, he went to the church and personally inspected the damage to the ceiling. He stated that he found no broken boards and that the repair work performed consisted of replacement of the light fixture, patching of the area immediately surrounding the light fixture, and painting the repaired portion of the ceiling. In connection with his testimony, he produced a bill from Claiborne to Acker-man for the damages which resulted from Mr. Collins’ fall. The repair work done by Claiborne Builders was charged to Acker-man Refrigeration and not to the church. This “field charge” and an attached letter of explanation was introduced into evidence by the defendants as their exhibit number two.

Appellant assigns the following three specifications of error:

1. The trial court committed manifest error in considering the pre-amendment wording of pleadings which were later amended.
2. The trial court committed manifest error in admitting evidence requested by plaintiff but denied by the defendant.
3. The trial court committed manifest error in ignoring the clear weight of evidence proving the “ruin” and the liability of the defendants.

Appellant’s assignment number one alludes to the following statement made by the trial judge in his reasons for judgment: “On or about August 29, 1979, in his original petition, plaintiff alleges that while gathering up tools, plaintiff tripped over various boards negligently and hazardously located in the attic of the church where he was working.”

Our examination of the record clearly shows that the above statement standing alone is out of context, as the trial judge continued as follows: “Plaintiff’s amended petition states that the issue at hand is whether there was a ‘collapsing, giving way or falling’ of a part of the attic floor so as to constitute “ruin” as contemplated by La.C.C. Art. 2322. Plaintiff claims that the “ruinous condition” included the attic floor/church ceiling which allegedly broke, causing plaintiff to fall and injure himself.” Obviously, the trial judge was simply reciting all allegations presented by the plaintiff and we find no significance in this practice. Plaintiff’s first assignment is completely without merit.

The evidence referred to in plaintiff’s assignment number two is the bill or “field charge” (Defendant’s Exhibit $2) sent from Claiborne Builders to Ackerman Refrigeration reflecting the repairs (and the charges for same) necessitated by Mr. Collins’ fall through the ceiling. We find no evidence in the record that the defendant (the church) had any knowledge of this document until immediately before trial. The bill was initiated by the general contractor and sent to his subcontractor. This was handled internally between contractors and did not involve defendants herein. The trial transcript (pp. 63-65) reflects that the trial judge heard argument from both counsel on whether or not he would admit the document. Under the circumstances (counsel for plaintiff had ample opportunity to cross-examine Mr. Lemoine, the originator of the bill), the trial judge decided to admit the evidence. Therefore, we find plaintiff’s assignment number two is also lacking in merit.

The issue presented in appellant’s last assignment of error is whether the trial court committed manifest error in finding that plaintiff failed to carry his burden of proof that his fall was caused by the “ruin” of the church attic.

The liability of the owner of a building is governed by Article 2322 of the Louisiana Civil Code, which provides:

The owner of a building is answerable for the damage occasioned by its ruin when this is caused by neglect to repair it, or when it is the result of a vice in its original construction.

The Louisiana Supreme Court in Entrevia v. Hood, 427 So.2d 1146 (La.1983), defined the elements of proof required to impose strict liability on a building owner. The Court stated:

In order to recover in strict liability in Article 2317 or 2322 against the owner of a building, the injured person must prove that the building posed an unreasonable risk of injury to others, and that his damage occurred through this risk.

In the present case, the issue of “ruin” clearly turns on the weight and credibility accorded to the testimony of the witnesses by the trial judge. Two of the witnesses (Rev. Hodge and Jerry Lemoine) testified overwhelmingly in favor of the defendants. The testimony of one witness (Mr. Fortu-nia) was inconsistent. But, overall, it could not be labeled “adverse” to the defendants. Only the plaintiff’s testimony was clearly adverse to the defendants’ claims and favorable to his own cause.

The perspicacious trial judge observed, “The court does not find sufficient evidence to support Plaintiff’s claim of a ‘ruinous condition’ of the building; therefore, neither Louisiana Civil Code Article 2317 nor Article 2322 apply in this instance and a strict liability situation does not exist.” We find no error in his conclusion.

Accordingly, the judgment of the trial court is affirmed. Each side is to bear its own costs in this appeal.

AFFIRMED.


text:
    Charles P. HUNT, Jr. v. Charles B. CHAPMAN, Jr., Gary Songy and State of Louisiana Through Department of Public Safety, Division of State Police.
    No. 84-CA-38.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 11, 1984.

      Garland R. Rolling, Michael Baham, Me-tairie, for plaintiff-appellant.
    G. Bruce Parkerson, New Orleans, for defendants-appellees.
    Before KLIEBERT, BOWES and GRIS-BAUM, JJ.
   BOWES, Judge.

This case is before the Court on a motion for summary judgment granted in favor of the defendants, Charles Chapman and the State of Louisiana through the Department of Public Safety, Division of State Police. We reverse and remand the cause to the district court for trial on the merits.

In July 1980, a motorcyclist (a Mr. Paul Chamblee), experiencing trouble with his motorcycle in front of plaintiff Hunt’s property in rural St. Charles Parish, asked Hunt for permission to store the cycle for a few days in Hunt’s barn in exchange for a storage fee. Hunt agreed.

About two months later, when the cycle had not been reclaimed, Hunt contacted Detective Kenneth Schmill in St. Charles Parish to ask for assistance in locating the owner regarding the cycle.

After a computer license check, the detective wrote to defendant Gary Songy, whose name appeared as titular owner of the bike. Songy advised that he had sold the bike for $1,500 in cash and signed the title for transfer. (Apparently the title transfer was never effected in Baton Rouge.) Subsequently, in a series of telephone calls, Mr. and/or Mrs. Songy requested return of the bike; Detective Schmill advised them of the need for a valid title before the cycle could be reclaimed. Mrs. Songy then informed Schmill that she had friends in the St. Bernard Detective Bureau and in the State Troopers and that theft charges would be filed against Hunt. Schmill continued to advise the Songys that the situation was not a criminal case.

On or about January 20, 1981, defendant Chapman, in his capacity as a state trooper, contacted the St. Charles Parish Sheriff’s Office by radio, to inquire as to the location of the motorcycle and the status of the case. Chapman was told that the case had been “referred to civil court” by the district attorney’s office. Chapman later telephoned Hunt apparently to discuss possible criminal charges. Hunt reiterated that he considered the matter a civil one, as he felt that he was entitled to a storage fee.

On or about February 12, 1981, defendant Chapman applied, via his (Chapman’s) sworn affidavit, to the district court for a warrant for the arrest of Hunt on a charge of felony unauthorized use of a movable and for a search warrant for the motorcycle. The warrants were issued without the advance knowledge of either the St. Charles Parish Sheriff’s office or the District Attorney’s office. Also, apparently there was no attempt by Trooper Chapman to advise either local official of his intentions to interfere in a case clearly being handled by both local offices. This is strange and unusual police procedure.

On February 17th, at approximately 2:00 a.m., no less than four State Troopers, led by Trooper Chapman, converged upon Hunt’s residence, handcuffing and arresting him. Hunt was then booked for unauthorized use of a movable under Louisiana Revised Statute 14:68. The motorcycle was seized pursuant to the warrant and released to Songy. The District Attorney refused to accept the charges or prosecute Mr. Hunt, who then filed the present lawsuit for damages for false arrest.

The cases are legion which hold that a motion for summary judgment may be granted only if the pleadings, documents, depositions and affidavits show there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law. Smith v. Cajun Insulation Co., 434 So.2d 123 (La.App. 5th Cir.1983). If there is any doubt about there being a material issue of fact, a trial on the merits is preferred. Ballard v. Jayakrishnan, 427 So.2d 665 (La.App. 5th Cir.1983).

The present motion for summary judgment was granted, insofar as we can discern from the judge’s oral comments, because he found probable cause to issue the warrant in the first place. (As it happens, the trial judge here also issued the original warrant.)

He felt it would be “remiss” of him now to find otherwise. Obviously, the judge did not consider the affidavits now before him, with many additional facts and circumstances, and re-evaluate his previous position. Nowhere is there any mention that the judge found there was “no genuine issue of material fact” between the parties. The judge used phrases indicating doubt, such as “it seems like” and “what it most probably is” and “there’s a lot written between the lines that’s not explained.” Nevertheless, he found the motion “valid”, sustained it, and dismissed the case. Under the facts and circumstances of the instant case, we find that it is necessary to “go between the lines” to determine the issues here, and that is the purpose of a full trial on the merits.

Traditionally, in an action for false imprisonment (or false arrest), the arrest is made either without legal process or warrant, or under a warrant null upon its face. Barfield v. Marron, 222 La. 210, 62 So.2d 276 (1952). Later jurisprudence has refined Barfield to include a warrant “maliciously and wrongfully obtained.” Singleton v. Townsend, 339 So.2d 543 (La.App. 4th Cir.1976); see also Brewer v. Blackwell, 692 F.2d 387 (5th Cir.1982). The pleadings, affidavits, and other documents filed into the record in connection with the motion for summary judgment raise a question of material fact: Did Trooper Chapman have sufficient knowledge of the underlying facts of this case so as to cause the warrant sworn out by him to be one “maliciously and wrongfully obtained”? Put another way, did Chapman have reason to believe that the crime of unauthorized use of a movable had been actually committed by Hunt, or was the trooper abusing his position as a law enforcement officer in a show of force to obtain the release of the property of a friend? The circumstances of the case, even as enunciated in Chapman’s own affidavit to obtain the warrant do not fall into the category of criminal actions proscribed by R.S. 14:68:

... unauthorized use of a movable also has, as an essential element, the inten tional taking or use of a movable belonging to another. It is obvious that criminal intent is an essential element required to be proved, and evidence of intent is clearly pertinent to the issues in these cases. State v. Kelley, [241 La. 224] 128 So.2d 18 (La.1961).
A person commits the crime of unauthorized use of a movable when he either takes or uses another’s property without the owner’s consent or by means of fraudulent practices. R.S. 14:68, although not requiring that a person act with an intent to deprive the owner permanently of his property, must reasonably be construed to require the existence of fraudulent intent.
... we construe the present statute proscribing unauthorized use of a movable as requiring a showing of mens rea or criminal intent, since the “evil” state of mind of the actor normally distinguishes criminal acts (punishable by the state alone) from mere civil wrongs (actionable by private individuals against one another). C.Cr.P. art. 381 State v. Bias, 400 So.2d 650 (La.1981)

It appears from the record that Trooper Chapman may have known very well the complete lack of criminal intent on the part of plaintiff. To what extent he (Chapman) was aware of this, as well as of other pertinent facts, is material in the determination of plaintiff’s action for false arrest. It appears to this Court, without delving more deeply into the surrounding facts, that the actions of plaintiff may easily be construed not to fall within the prohibitions of R.S. 14:68. In so saying, we do not intend to make a finding of guilt or innocence on the part of plaintiff, as such is not our function.

Nor do we hold that in swearing out a warrant, a police officer must always ascertain the intent of the alleged perpetrator. Rather, we mean to raise the question, in this particular case on the facts presented thus far, of the good faith of Trooper Chapman in initially swearing out the warrant and then effecting the arrest.

The cases cited by appellant are distinguishable on their facts. Kyle v. City of New Orleans, 353 So.2d 969 (La.1977) and Gerard v. Parish of Jefferson, 424 So.2d 440 (La.App. 5th Cir.1982) involve warrant-less arrests effected by police officers on information supplied by third parties. Neither case addressed the question of the officers’ peculiar or personal knowledge of the facts underlying the case. Johnson v. Pearce, 313 So.2d 812 (La.1975) states that “only the grossest negligence or arbitrary and capricious conduct on their [public officials] part will support a claim of malicious prosecution.” (p. 816, emphasis supplied).

We also find that the definition of probable cause quoted in appellee’s brief is pertinent to the case at hand:

Probable cause to arrest exists when facts and circumstances are within the arresting officer’s knowledge and of which he has reasonable and trustworthy information sufficient to justify a man of average caution the belief that the person to be arrested has committed or is committing an offense. State v. Haynie, 395 So.2d 669 (La.1981) (emphasis added).

We find that the present situation is comparable to the recent case of Jones v. Soileau, 448 So.2d 1268 (La.1984). In holding that a local official had misused his public office to collect a private debt, the court said:

The crucial determination is whether Soileau had an honest and reasonable belief in the guilt of Jones at the time he pressed charges. Sandoz v. Veazie, 106 La. 202, 30 So. 767 (1901). In applying these principles, a court may take into account events subsequent to the filing of the criminal charge. These are, however, simply additional pieces of evidence which comprise the entirety of the circumstances which it is the court’s duty to review ...

The court continued on (making an analogy to and quoting from Hibernia Nat. Bank of New Orleans v. Bolleter, 390 So.2d 842 (La.1980) which was a suit for malicious prosecution), finding that malice will be inferred “when there is an absence of probable cause ... resulting from wanton and reckless disregard of the rights of the party sued, evincing absence of that caution and inquiry a party should employ before filing suit....” In our opinion, the determination as to whether or not “probable” cause existed, in a suit for false arrest, refers to a finding of fact made by the judge after a full trial on the merits, and not simply to the finding of probable cause made at the time the warrant issued. The latter determination is limited to information contained within the four corners of a one-sided affidavit, which can even contain hearsay. When the only affiant is the arresting officer, as in this case, the court must examine the facts surrounding the issuance of the warrant and beyond in order to ascertain whether the affiant used selectively-chosen facts and omitted others in order to obtain the warrant.

The court in Jones, supra, concluded that defendant’s actions were done without probable cause and with the intent to use a baseless criminal charge to collect a debt from plaintiff and that “under these circumstances, malice is inferred. Such an attempt to misuse an office of public trust for private ends, as well as to misuse the criminal process for the enforcement of civil claims, remains an intolerable abuse in this state.”

We are cognizant of the fact that the actions in Johnson and Jones, supra, were for malicious prosecution, whereas the present action is one for false arrest, but hold that the test for malice in the present case is virtually identical.

Such questions, as have been raised above, can only be answered by a full examination of the case by a trial on the merits.

For the foregoing reasons, the judgment of the trial court is reversed and the case remanded to the district court for proceedings in accordance with this opinion. Each party will bear its own costs of this appeal.

REVERSED AND REMANDED.

      . L.S.A. R.S. 14:68:
      § 68. Unauthorized use of a movable
      Unauthorized use of a movable is the intentional taking or use of a movable which belongs to another, either without the other’s consent, or by means of fraudulent conduct, practices, or representations, but without any intention to deprive the other of the movable permanently. The fact that the movable so taken or used may be classified as an immovable, according to the law pertaining to civil matters, is immaterial.
      Whoever commits the crime of unauthorized use of a movable having a value of one thousand dollars or less shall be fined not more than five hundred dollars, or imprisoned for not more than six months, or both. Whoever commits the crime of unauthorized use of a movable having a value in excess of one thousand dollars shall be fined not more than five thousand dollars, or imprisoned with or without hard labor for not more than three years, or both.

      . Chapman knew, for example, that Hunt was consulting the Sheriffs office in the person of Detective Kenneth Schmill; such knowledge would appear to belie the criminal intent of Hunt.

      . Chapman was also aware that Hunt did not "take” the vehicle as described in R.S. 14:68, either without the owner’s consent, or fraudulently. In short, none of the elements set forth in the statute appear to be present.

      .As pointed out by appellant, the motorcycle could have been seized on the search warrant alone. The arrest and handcuffing of Mr. Hunt at 2:00 a.m. appears to have been completely unnecessary.


text:
    John FILLWOCK v. BROWN & ROOT, INC. and Highlands Insurance Company.
    No. 84-CA-141.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 11, 1984.
    Writ Denied Nov. 26, 1984.

      Daniel E. Becnel, Jr., Becnel, Landry & Becnel, Reserve, for plaintiff-appellant.
    Paul G. Preston, Christovich & Kearney, New Orleans, for defendants-appellees.
    Before KLIEBERT, BOWES and GRIS-BAUM, JJ.
   BOWES, Judge.

This is the second appeal stemming from a workmen’s compensation claim filed by plaintiff in 1980. This court held, in Fillwock v. Brown & Root, Inc., et al, 422 So.2d 458 (La.App. 5th Cir.1982), that it was harmless error to admit into evidence the deposition of Dr. C.B. Scrignar, which deposition was based on a psychiatric examination conducted after trial on the merits. We felt that there was sufficient additional evidence from other physicians to affirm the trial judge’s finding of total temporary disability. Following our affirmation, defendants sought in the district court to determine the precise period of disability involved.

The defendants deposed Dr. Scrignar (the only physician still treating plaintiff), issued a draft in the amount of $22,145.96, which represented compensation through Nov. 9, 1982, and moved to have the original trial judgment marked satisfied. The deposition of Dr. Maria Palmer, plaintiff’s neurologist, was also placed into evidence at this time. Considering both depositions, (and noting that plaintiff had cashed the draft), the trial judge marked the judgment as “satisfied”. It is from this ruling that plaintiff now appeals. We affirm.

The following pertinent facts emerge from the depositions: Dr. Scrignar last saw the plaintiff in November, 1981, for treatment. The social worker affiliated with the doctor last saw plaintiff on March 30, 1982. Dr. Scrignar examined Fillwock on November 8,1982, in order to determine his (plaintiff’s) status for purposes of deposition. Dr. Scrignar opined that during sometime between November, 1981, and March, 1982, plaintiff became able to return to work; certainly he was able to work as of the. date of deposition, November 9, 1982.

Dr. Palmer testified that she had not treated plaintiff from October, 1980, through December 28, 1982, at which time he contacted her complaining of weekly headaches, associated with nausea and vomiting. The headaches purportedly occurred throughout the entire period of time since Dr. Palmer had last seen plaintiff. There were no objective findings to conform with Mr. Fillwock’s subjective complaints — a CAT scan, x-rays, and an E.E.G. were normal. In fact, there had been no objective findings at all since January, 1980. Dr. Palmer assigned a 10-20% disability rating to plaintiff based on his stated complaints.

Dr. Scrignar, also noting that plaintiff complained of headaches (although his report does not mention nausea and vomiting), still found that plaintiff could resume employment.

From the time of the original trial of the matter through November, 1981, Dr. Scrig-nar was the only treating physician. Plaintiff had consulted no doctors for one year after that, until he saw Dr. Palmer in 1982. According to both physicians, Fill-wock’s problems were primarily psychological — “post-traumatic stress” — and, according to his psychiatrist, this problem had been resolved sufficiently to recommend a return to work.

Under the facts of this case as established in the record, we find there was a reasonable basis for the trial court’s conclusions, and, in the absence of manifest error, we will not disturb his findings. See Canter v. Koehring Co., 283 So.2d 716 (La.1973). Therefore, the judgment appealed from is affirmed. Plaintiff will pay all costs of this appeal.

AFFIRMED.