text:
    TOP CROP SEED & SUPPLY COMPANY, INC., Plaintiff-Appellant, v. BANK OF SOUTHWEST LOUISIANA, Defendant-Appellee.
    No. 83-903.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.

      Miller, Miller & Craton, John F. Craton, Crowley, for plaintiff-appellant.
    John P. Navarre, Oakdale, for defendant-appellee.
    Before GUIDRY, LABORDE and YEL-VERTON, JJ.
   LABORDE, Judge.

This is a suit to recover the proceeds of three checks cashed on forged endorsements. Plaintiff-appellant Top Crop Seed & Supply Company, Inc. (Top Crop) is the payee and true owner of the checks. Defendant-appellee Bank of Southwest Louisiana (the bank) cashed the checks for Ross V. Williams (Williams), who forged the endorsements on the checks. The lower court maintained the bank’s exceptions of no cause of action and prescription. Top Crop appeals. We reverse the judgment of the trial court.

FACTS AND PRIOR PROCEEDINGS

In May of 1975, Williams, a vice-president, stock-holder, and full-time employee of Top Crop, endorsed three checks payable to the order of the corporation with the corporation’s signature and cashed the checks at the Bank of Southwest Louisiana. The bank was not the drawee (or payor) of any of these cheeks. It may accurately be described as the cashing, depository, and collecting bank. The sum of the three checks was $6,418. Top Crop did not have an account with the bank nor had it done business with the bank.

Top Crop filed suit against the bank on May 1, 1978. The trial judge dismissed the case on an exception of prescription, finding that the suit was based on tort law and that more than one year had passed between the date of the forgeries and the date of filing suit.

On appeal, this court found that Top Crop’s petition did not state a cause of action because it was not alleged that Williams had forged the corporate signature. We did not rule on the issue of prescription. We reversed and set aside the trial judgment, and granted Top Crop leave to amend its petition to state a cause of action. Top Crop Seed & Supply v. Bank of S.W. La., 392 So.2d 738 (La.App. 3d Cir.1980).

Top Crop amended its petition to state that the bank had cashed checks on which Williams had forged the corporate signature. The bank filed a second exception of prescription and an exception of no cause of action. The trial judge deferred ruling on the exceptions, and trial was had on the merits. After trial, the court entered judgment for the bank on both peremptory exceptions, ruling that the claim was in tort and had thus prescribed and that Louisiana law afforded Top Crop no action against the bank, rather, it must sue the drawer. The lower court further found that Williams had been released from liability by Top Crop, and that such a release also absolved the bank of any possible liability. The lower court also found that if the bank was liable to Top Crop, then Williams, third-party defendant, was liable to the bank for any judgment in favor of Top Crop.

Top Crop perfected this devolutive appeal to this court.

ISSUES

Top Crop assigns as error the trial court’s finding that it had no cause of action against the bank. Top Crop contends that LSA-R.S. 10:3-419(1) gives it a cause of action against the bank. Top Crop also assigns as error the trial court’s finding that its cause of action against the bank, if any, was in tort, and had thus prescribed. Top Crop contends that the five year prescriptive period applicable to bills and notes applies to its suit against the bank.

TOP CROP’S CAUSE OF ACTION

The lower court maintained the bank’s peremptory exception of no cause of action on the authority of Smith v. Louisiana Bank & Trust Company, 255 So.2d 816 (La.App. 2d Cir.1971), rev’d on other grounds, 272 So.2d 678 (La.1973). The Smith case followed a long line of Louisiana jurisprudence under the Uniform Negotiable Instruments Law (NIL) which holds that the payee of a check has no cause of action against the collecting bank; rather, his action is properly against the drawer. Id. at 819 (citing Fidelity National Bank of Baton Rouge v. Vuci, 224 La. 124, 68 So.2d 781 (1953); M. Feitel House Wrecking Co. v. Citizens Bank and Trust Co., 159 La. 752, 106 So. 292 (1925); Fernon v. Capital Bank and Trust Company, 190 So.2d 504 (La.App. 1st Cir.1966)). Although the Louisiana Supreme Court affirmed this aspect of the Smith decision, it was noted that this rule is contrary to the decisions of the overwhelming majority of jurisdictions governed by the Uniform Commercial Code (UCC), which allow the payee to sue the collecting bank. 272 So.2d at 684 (Tate, J., concurring). It was also noted that even though Louisiana was the only state still retaining the NIL at that time, the majority of other jurisdictions also had allowed a direct action by a defrauded payee against a collecting bank when they had been governed by the NIL. Id. at 685-86 (Barham, J., dissenting).

The UCC law of commercial paper became effective in Louisiana on January 1, 1975. The pertinent commercial code section provides, in part:

“(1) When a drawee to whom an instrument is delivered for acceptance refuses to return it on demand; or when a person to whom an instrument is delivered for payment refuses on demand either to pay or to return it; or when a person pays an instrument on a forged indorsement, he is liable to the true owner.
(2) In an action against a drawee under subsection (1) the measure of the drawee’s liability is the face amount of the instrument. In any other action under subsection (1) the measure of liability is presumed to be the face amount of the instrument.”

LSA-R.S. 10:3-419(1) & (2) (emphasis added). Comment 3 to this section states that the subsection which affords the true owner an action against one paying on a forged endorsement is new, and that it intends to adopt the prevailing view.

No Louisiana case has expressly held that the adoption of UCC commercial paper law, and particularly section 3-419, changes the Smith rule that a defrauded payee (or true owner under proper endorsement) may not sue a collecting bank. One recent case, however, lends substantial support to the view that this aspect of Louisiana law has been changed by the adoption of the UCC commercial paper provisions.

In Pargas, Inc. v. Estate of Taylor, 416 So.2d 1358 (La.App. 3d Cir.1982), this court found a drawee bank liable to a corporation under section 3-419(1) for cashing a corporate check with the necessary corporate endorsement forged by an employee. Had the precise issue presented here been raised in Pargas, Pargas would control this ease, in light of the great similarity between the cases. As explained by this court, in reference to decisions under the UCC:

“We find no case on point reaching a contrary result. This is rightly so inasmuch as the Uniform Commercial Code was, of course, designed to ‘promote uniformity of the law among the various jurisdictions.’ LSA-R.S. 10:l-102(2)(c). Provisions of the code should be construed so that rights and liabilities of the parties, absent serious factual dispute, are ascertainable without resort to expensive and delaying litigation over each item which might be paid on an unauthorized signature or endorsement, thereby facilitating commercial transactions.”

416 So.2d at 1364-65. See also Jones v. American Bank & Trust Co., 387 So.2d 1360, 1363 (La.App. 1st Cir.1980) (rejecting suit by payee against cashing bank of forger only because plaintiff received “benefit of the funds” under LSA-R.S. 10:3-404).

The purpose behind LSA-R.S. 10:3-419(1) and, indeed, most of the provisions of modern commercial paper law is clear: that purpose is to do away with the old law, exemplified by Smith, under which the basis for recovery against another party in a commercial paper transaction is a contractual relationship. Under the old law, the mandated procedure was rigorous and circuitous:

“The payee may recover against the drawer because he has never been paid; the drawer may recover against the drawee because the drawee did not pay in accordance with the drawer’s order; the drawee may recover against the collecting bank on its endorsement; the collecting bank may recover against the cashing bank on its endorsement; the cashing bank may recover against the forger under any number of theories.”

Smith, 255 So.2d at 819. The new law under section 3-419(1) allows the payee (or other true owner) of an instrument to avoid uncertain and multiple litigation and proceed against the party in the chain that he feels is most likely to satisfy his claim. This facilitates commerce by increasing the trust that one may place in commercial paper, and certainly removes a burden from the courts by simplifying litigation.

Section 3-419(1) charges defendant bank with responsibility in the present situation. We hold that Top Crop has stated a cause of action against the bank under that section; Top Crop need not pursue its remedy against any other parties in order to maintain this action.

Before he discovered the three forgeries by Williams, D.A. de la Houssaye (de la Houssaye), the other shareholder of Top Crop, entered into an agreement with Williams whereby de la Houssaye purchased all of Williams' stock in Top Crop and thus became the sole shareholder. This agreement also terminated Williams’ employment relationship with the corporation. Part of the agreement purported to release Williams from liability to Top Crop. The lower court reasoned that this stock sale, in effect, paid Top Crop for the loss it sustained when Williams cashed the checks, and thus should release the bank from liability also. We disagree, and we need not examine the particulars of the agreement and the included release to do so.

First, Top Crop is not suing Williams, it is suing the bank under the express authority of LSA-R.S. 10:3-419(1). As noted above, the cause of action afforded by section 3-419(1) does not depend upon the possibility or practicality of suit against other parties, it simply provides the payee (or other true owner) of an instrument with the right to sue a person who pays that instrument under a forged endorsement. To hinge the availability of section 3-419(1) on plaintiffs further contractual agreements with other parties would ignore the plain intent of that provision, and revert this area of law to the pre-UCC days of circuitous and confusing litigation.

■As found by the lower court, the release, even if effective as between Williams and Top Crop, does not prevent the bank from recovering over against Williams as third-party defendant. It would, indeed, be an anomalous result to find the bank liable to Top Crop under the commercial paper law of this state, and also find that the bank may not recover over against the forger because the person by whom the bank is sued has arguably released the forger from liability. Such a holding would open the door to collusive actions by forgers and payees against banks.

Furthermore, in regard to the forged checks, the release was not effective even as between Top Crop and Williams. De la Houssaye testified at trial that he was unaware of the forgeries at the time of the agreement. His testimony establishes that the release was intended to encompass several corporate obligations then outstanding and known to both parties. This uncontradicted testimony comports with the terms of the agreement. Moreover, Williams’ then unknown forgeries were illegal, and to the extent that the agreement could be construed to operate as a release from liability for such activities, it is void. La.Civ.Code art. 1892. See also La.Civ.Code art. 1847. See generally Branch v. Alexander, 231 La. 487, 91 So.2d 767 (1957); Whittington v. Sowela Technical Institute, 438 So.2d 236 (La.App. 3d Cir.1983) (releases are construed in the same manner as any other contract).

If de la Houssaye had been aware of the forgeries when he and Williams entered into the stock sale agreement, and if the agreement had provided that the appropriated proceeds of the forged checks were repaid in the stock sale, then the bank (and Williams) could raise as a defense to Top Crop’s well-founded action that Top Crop had received the “benefit of the funds” of the three checks. See LSA-R.S. 10:3-404. Such, however, is not the case; it is clear that Top Crop did not receive the benefit of the funds in the sale, though, as noted in the conclusion of this opinion, it had received certain proceeds from one of the forged checks at an earlier date.

To summarize, we do not believe the release % effective in regard to the forged checks even between Top Crop and Williams; however, even if the release could prevent Top Crop from suing Williams on the forged checks, it does not prohibit Top Crop’s action against the bank, nor does it prevent the bank from recovering over against Williams as third party defendant. A release such as the one between Williams and Top Crop is of minimal importance in this type of case; this is not simply an instance of contractual or delictual responsibility, this is a suit on commercial paper, governed by the law of commercial paper of this state.

PRESCRIPTION

The forgeries and the cashing of the forged checks occurred in May of 1975, and suit was not filed until May 1, 1978. The trial judge concluded that Top Crop’s cause of action against the bank, if any, was a tort action and had thus prescribed under the one-year limitation period of Civil Code Article 3536. We do not believe that the one-year delictual prescriptive period applies to this suit.

Appellant Top Crop contends that the applicable prescriptive period is the five-year limitation of article 3540, which provides:

“Actions on bills of exchange, notes payable to order or bearer, except bank notes, those on all effects negotiable or transferable by indorsement or delivery, and those on all promissory notes, whether negotiable or otherwise, are prescribed by five years, reckoning from the day when the engagements were payable.”

This provision has been held to be controlling in several cases in which the one-year tort provision arguably could have applied.

Strother v. National American Bank, 384 So.2d 592 (La.App. 4th Cir.1980) involved a bank which had cashed a check on a foreign bank contrary to a restrictive endorsement. The court stressed that, though the suit could roughly be characterized as an action of “civil conversion,” the longer five-year period applied because the suit was on an instrument included within the scope of article 3540. Id. at 593-94. The court concluded: “With respect to the check in question we believe the clear intent of the article to be to the effect that bills of exchange, notes and other instruments, negotiable or otherwise, are to have a viable life for a period of five years.” Id. at 594.

More recently, in Johnny Turcich, Jr., Inc. v. First National Bank of Jefferson Parish, 427 So.2d 602 (La.App. 5th Cir.1983), the defendant, which was also the bank upon which the check had been drawn, cashed plaintiff’s check contrary to plaintiff’s stop order. Plaintiff filed suit more than five years later, and argued that, because he was a customer of the bank, the ten-year prescriptive period of article 3544 for personal actions applied to the suit. The court noted that the stop-order was not in effect when the check was cashed, and that the general bank/customer relationship did not provide a suitable basis for the longer prescriptive period: “We feel, as do our brothers of Fourth Circuit Court, that it is the clear intent of LSA-C.C. art. 3540 that bills of exchange, notes and other instruments, negotiable or otherwise, are to have a viable life of five years. Accordingly, this action is governed by LSA-C.C. art. 3540.” Id. at 604. See also Hersbergen, Banking Law, Developments in the Law, 1982-1983, 44 La.L.Rev. 247, 263-64 (1983).

We, too, believe that article 3540 evinces the intent of the legislature that all actions on bills and notes are to have a prescriptive period of five years.

The trial judge and counsel for appellee characterized this action as one in tort, i.e., “conversion,” regardless of the statutory authority under which it is brought. We do not deny that this action is analogous to common-law conversion; however, we nóte that the commercial code provision of this state which gives the true owner of an instrument the right to sue a person who cashes that instrument under a forged endorsement was re-written from the UCC source article explicitly “to delete reference to common law ‘conversion,’ which is foreign to Louisiana.” LSA-R.S. 10:3-419, Comment. Contra F. Stone, Tort Doctrine sec. 255 (La.Civ.L.Treatise vol. 12, 1977) (commenting that theories of negligence and conversion dominate the field of dispossession of movables in Louisiana and citing Coit v. Jennings, 8 Mart. (O.S.) 166 (1820) as origin of doctrine of civil conversion in Louisiana).

This action is not based on the tort articles, it is based on section 3-419 of the commercial paper laws. No reference to article 2315 or any of the delictual articles is necessary to find a cause of action under section 3-419, nor is it necessary for the bank and the plaintiff to have any prior business or contractual relationship for section 3-419 and the corresponding five-year prescriptive period to apply.

Top Crop’s suit against the bank has not prescribed.

CONCLUSION

Although the trial court decided this case on the peremptory exceptions of the bank, a trial was had on the merits so that we might dispose of the case should the maintenance of the exceptions be erroneous. We find that Top Crop has carried its burden of proving that it is the true owner of the checks in question. It is the payee and the checks were not properly negotiated to any other person. We find, further, that the Bank of Southwest Louisiana cashed the checks in question under forged endorsements. Williams, the forger, did not have authority to cash checks for the corporation, as was determined at trial.

We find, with respect to the $6,418 sum of the checks, that Top Crop may recover only $4,618 from the bank. Testimony at trial establishes that $1,800 in cash representing the partial proceeds of one of the checks was conveyed by Williams through a warehouse employee of Top Crop to the corporation, and that this sum was subsequently deposited in an account to the credit of Top Crop. Under the “benefit of the funds” rule of LSA-R.S. 10:3-404, Top Crop may not recover the $1,800 thus received.

We agree with the trial court that the bank should be able to recover over against third-party defendant Williams for any judgment against it. Although the trial opinion includes this finding, no judgment was entered in favor of the bank against Williams. Moreover, Williams is not a party to this appeal and the bank chose not to answer the appeal against it by Top Crop. Therefore, we may not grant any relief to the bank in this appeal. Our judgment today, however, does not preclude appropriate proceedings by the bank against Williams.

DECREE

Based on the above reasons, the judgment of the trial court is reversed and set aside. It is now ordered, adjudged, and decreed that there be judgment herein in favor of plaintiff-appellant Top Crop Seed & Supply Company, Inc. against defendant-appellee Bank of Southwest Louisiana in the amount of $4,618, with legal interest from date of judicial demand. Costs of this appeal are to be borne by Bank of Southwest Louisiana.

REVERSED AND RENDERED.

GUIDRY, J., concurs in the result.

      . It was established in the lower court that Williams did not have authority to cash checks payable to the corporation.

      . The bank had styled its exception as "no right of action.” However, the trial court properly construed the exception as averring no cause of action. La.Códe Civ.Proc. art. 865.

      . It is possible to draw a distinction between Pargas and the present case on the grounds that ■the bank in question here is the depository, cashing, and collecting bank, and not the bank on which the three checks in question were drawn, whereas the bank in Pargas was the drawee (or payor) bank. Section 3-419(3) provides:
      "Subject to the provisions of this Title concerning restrictive indorsements a representative, including a depository or collecting bank, who has in good faith and in accordance with the reasonable commercial standards applicable to the business of such representative dealt with an instrument or its proceeds on behalf of one who was not the true owner is not liable to the true owner beyond the amount of any proceeds remaining in his hands.”
      This provision would appear to limit the liability of a bank, other than the drawee (or payor) bank, which cashes under a forged endorsement, provided that such bank has (a) acted in good faith and (b) met the standards of reasonable conduct of the banking community. It is important to note that this provision would not prevent suit by the true owner against the collecting bank (i.e., the limiting provision does not remove the cause of action granted by section 3-419(1)); rather, this provision enables a collecting bank to raise as a defense its good faith and reasonableness.
      The bank in the present case did not present such a defense, nor do we believe it could successfully have done so, in view of the record. We note, furthermore, that most jurisdictions have permitted the payee to recover directly from the cashing or collecting bank under section 3-419(1) and have declined to apply section 3-419(3), because the entire thrust of this area of UCC law is that ultimate liability will be borne by the party who takes from the forger, with this party then having its sole remedy against the forger. See Cooper v. Union Bank, 9 Cal.3d 371, 107 Cal.Rptr. 1, 507 P.2d 609 (1973). See also Comment, Payee v. Depository Bank: What is the UCC Defense to Handling Checks Bearing Forged Indorsements?, 45 U.Colo.L.Rev. 281, 289-304 (1974). The applicability of section 3-419(3) has not been raised by defendant bank in this case, and we decline to rule on its utility for Louisiana courts.

      . We do not alter the rules regarding employee forgeries codified under LSA-R.S. 10:3-405. Under that section, which encompasses the longstanding "fictitious payee" and "imposter” rules, the company drawing the instrument remains ultimately liable to the drawee (or payor) bank. In the situation that we address today, the payee is properly named, but the endorsement is by one unauthorized to endorse.

      . The pertinent one-year prescriptive period of repealed article 3536, which was in force at the time of the forgery, remains unchanged in the new article 3492, effective January 1, 1984.

      . The pertinent provision of repealed article 3540, in force at the time the checks became payable, remains unchanged in article 3498, effective January 1, 1984.

      . Repealed article 3544 was, in substance, replaced by article 3499, effective January 1, 1984.

      . The trial judge in Turcich had ruled that the action was in tort, and that the one-year prescriptive period applied.

      . LSA-R.S. 10:4-406(4) provides a three-year limitation for reporting unauthorized endorsements to the payor (or drawee) bank, after which the customer is precluded from asserting the unauthorized signature in a suit against his or her bank. Although this provision is inapplicable here, we note that Top Crop would have met the three year period had this statute been applicable.

      . The triai judge in this case found the five-year period illustrated by Strother inapplicable because Top Crop has no "contractual relationship” or bank account with the Bank of Southwest Louisiana. The discussion of contractual relationship in Strother concerned the applicability of the ten-year prescriptive period for personal actions. The five-year bills and notes prescriptive period does not depend upon the presence of a contractual relationship between the parties.

      .The receipt of eighteen $100 bills from Williams as partial proceeds from one of the cashed checks is supported by the testimony of de la Houssaye (R. at 43, 48, 55); Anna Lee Reed, Top Crop’s office manager (R. at 64); and Wiladean Palermo, Top Crop's bookkeeper (R. at 69-70). Williams also testified that he occasionally handed cash proceeds from the forged checks to personnel of Top Crop, but he was unable to recall exact amounts.


source: Caselaw Access Project

author: YELVERTON, Judge.

license: Public Domain

text:
    Paula Jean Florentine BARNARD, Plaintiff-Appellee, v. Dub BARNARD, Defendant-Appellant.
    No. 83-907.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.
    William D. Dyess, Many, for defendant-appellant.
    Kenneth N. Simmons, Many, for plaintiff-appellee.
    Before GUIDRY, LABORDE and YEL-VERTON, JJ.
   YELVERTON, Judge.

Dub Barnard appeals a trial court decision that a temporary layoff from his job was not a change of circumstances sufficient to reduce an earlier judgment for child support and alimony. Finding no error in this ruling, we affirm.

The facts show that within the period of only six weeks following their separation, the appellant, Dub Barnard, got two separate hearings on the amount of his alimentary obligations to his wife Paula and their two small children. At the first hearing, held July 1, 1983, he was ordered to pay a lump sum as alimony and child support. At this time he was employed as an oil field worker for T.C. Morrow Drilling Company.

Just two weeks after the initial hearing and judgment, Dub filed a rule seeking a reduction of his payments. This rule, filed July 15, was fixed for hearing on August 16. Dub was still employed when he filed the rule, but he was laid off early in August. At the second hearing he urged that his lay-off (apparently anticipated when the rule was filed) was a change of circumstances rendering him unable to meet his payments. The trial judge, finding that the unemployment was temporary and therefore not a change of circumstances, refused to reduce the monthly payments.

This decision was eminently correct. The testimony at the August 16 hearing demonstrated what is often the ease when an interruption in employment occurs in close proximity to a hearing on a rule for child support and alimony: it is too soon to tell whether or not there has been a real change of circumstances. In the instant case, during the two weeks that he had been unemployed Dub admitted he had not sought employment elsewhere, although he said he had filed for unemployment compensation benefits. He explained that he had not sought employment elsewhere because he expected to be called back to work by T.C. Morrow Drilling Company. In its reasons for judgment the trial court remarked that in this appellant’s type of work it was not unusual for him to have “gaps” in employment, that it was not likely the interruption of employment would continue indefinitely, and that therefore the husband had failed in his proof that there had been a change of circumstances.

The rule is firmly established that a party seeking an adjustment in a prior award must prove a change of financial circumstances. Landos v. Aymond, 448 So.2d 877 (La.App. 3rd Cir.1984).

A case very similar to ours, though it does not deal with a change of circumstances but rather with an initial fixing of child support, is Chaudoir v. Chaudoir, 446 So.2d 951 (La.App. 3rd Cir.1984). There, a week before the hearing to determine child support, the father lost his job. His efforts to find new employment during that week were unsuccessful. He contended that because of his current unemployment he should not have been ordered to pay any child support. This court affirmed a judgment ordering him to pay child support. Our reasoning, citing Sykes v. Sykes, 308 So.2d 816 (La.App. 4th Cir.1975) was that the husband, though unemployed, was employable, and that the simple fact he was unemployed at the time of the hearing did not relieve him of the obligation of child support, especially given the short period of his unemployment. For the same reasons, we find this two-week history of being out of work has not established factually a change in financial circumstances sufficient to justify a modification of the award.

The cases of Deaton v. Deaton, 393 So.2d 408 (La.App. 1st Cir.1980); Woodall v. Woodall, 397 So.2d 524 (La.App. 2nd Cir.1981); and Daigle v. Daigle, 448 So.2d 207 (La.App. 1st Cir.1984), where a reduction was allowed on a showing that the husband was then unemployed, are distinguishable. In each of these cases the judgment sought to be modified was several months old, and the husband was able to show a genuine financial deterioration over a period of time to substantiate his contention that there had been a change of circumstances.

This is not so in the present case. The appellant’s proof was too inconclusive to establish a change in circumstances sufficient to entitle him to a reduction of payments.

For these reasons, the judgment of the trial court is affirmed, with appellant to pay the costs of appeal.

AFFIRMED.


author: LABORDE, Judge.

text:
    Karlis BERZINS, Plaintiff-Appellant, v. Sherry Wileman BETTS and Johnny D. Betts, Defendants-Appellees.
    No. 83-911.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.

      Joseph Kutch, Leesville, for Johnny Betts.
    John Skaggs, Baton Rouge, for Sherry Betts.
    Don Martin, Leesville, for Karlis Berzins.

      Claude Leach, Jr., Leesville, for interve-nors.
    Before GUIDRY, LABORDE and YEL-VERTON, JJ.
   LABORDE, Judge.

Plaintiff, Karlis Berzins, instituted this child custody action against defendants, Sherry Wileman Betts and Johnny D. Betts, the divorced parents of the minor, Shannon Denise Betts. In a separate proceeding entitled Sherry W. Betts v. Johnny D. Betts, No. 27419, Johnny convoked a rule nisi to obtain custody of Shannon from his former wife, now missing. Additionally, the minor’s maternal aunt and uncle by marriage, Mr. and Mrs. Eddie A. Tilley, intervened in the instant proceeding seeking custody of the minor. The trial judge consolidated these actions and awarded custody of Shannon to the Tilleys. Both plaintiff and Johnny D. Betts, plaintiff-in-rule in the companion case, have appealed from this custody award. Finding no manifest error or abuse of discretion in the trial court’s award of custody to the Tilleys, we affirm.

In the companion case entitled Betts v. Betts, 457 So.2d 287 (La.App. 3rd Cir.1984), a separate opinion has been rendered by us this day.

FACTS

In this highly contested custody suit, the party litigants each seek custody of Shannon Denise Betts, a female child now twelve years of age. This is a dispute between a parent and non-parents.

Shannon was born November 22, 1971, issue of the marriage between Sherry W. Betts and Johnny Betts. Their marriage resulted in divorce on March 23, 1976 and custody of Shannon was awarded to the mother, Sherry.

Sometime prior to the divorce, Sherry began living with Karlis Berzins, plaintiff herein, and continued to live with him except for two brief intervals, in open concubinage, until September 1982. During that period of time, Shannon lived with them. She continued to reside in the Berzins home until trial.

In September of 1982, Sherry Betts suddenly and mysteriously disappeared and has since failed to return. According to the various witnesses, especially the testimony of the plaintiff, Karlis Berzins, she was on a business errand for him traveling from Leesville to New Orleans when she disappeared. When she failed to return as expected, a missing person report was filed. The car which she was driving was found in Baton Rouge, Louisiana, destroyed by fire. There was no trace of Sherry at that time, nor since, and it is purely speculative to state whether she is still alive.

Following this prolonged absence, plaintiff petitioned the court for custody of Shannon. A curator was appointed to represent Sherry’s custody interest and a publicized article requesting information from her and others as to her whereabouts was circulated to no avail.

Plaintiff, Karlis Berzins, was the paramour of Shannon’s mother for approximately nine years following Sherry’s separation from Johnny. Though unrelated to Shannon, plaintiff has provided much of the support for the child over the past nine years. During the last several months, she has been living in the Berzins home except for brief visits with relatives.

Johnny Betts, Shannon’s father, has not had custody of his daughter since the rendition of his separation from Sherry in January 1975. He has, however, been allowed to visit with Shannon, and on occasion, she has visited him at his home in Lafayette. Johnny is now remarried and presently experiencing severe marital discord for which he has sought counsel.

Intervenors, Eddie Anderson Tilley and his wife Beverly Wileman Tilley, are religious missionaries presently in Norway. Mrs. Tilley is Shannon’s maternal aunt. The trial court reasoned that it was in the child’s best interest that she be placed in the custody of the Tilleys.

Plaintiff appeals from this judgment and in a companion case consolidated with this appeal, Johnny D. Betts appeals as well.

ISSUES

The following issues are presented on appeal:

(1) Whether the trial court erred by placing the minor in the care, custody and control of interested non-parents rather than with the child’s father; and,
(2) Whether the trial court properly imposed all court costs solely upon plaintiff, Karlis Berzins.

ISSUE # 1: PARENT VERSUS NON-PARENT IN CUSTODY DISPUTES

It is established in our law that a parent has paramount rights to custody of his or her child and may be deprived of such right only for compelling reasons. In order for a non-parent such as the Tilleys or Mr. Berzins to be awarded custody over Mr. Betts, the trial court must have found that an award to the parent would be detrimental to the child, and additionally, that such an award to a non-parent is required to serve the best interest of the child. LSA-C.C. article 146(B). This dual prong requirement, although overlapping and contingent, is necessary for awarding custody to a non-parent when the parent asserts the paramount parental right of custody.

LSA-C.C. article 146(B) provides:

“B. Before the court makes, any order awarding custody to a person or persons other than a parent without the consent of the parents, it shall make a finding that an award of custody to a parent would be detrimental to the child and the award to a nonparent is required to serve the best interest of the child. Allegations that parental custody would be detrimental to the child, other than a statement of that ultimate fact, shall not appear in the pleadings.”

We have recognized in the past that when a parent competes with a non-parent for custody, as in this case, the parent’s right to custody must be upheld unless it is established by convincing proof that he or she is unfit or has forfeited these parental rights of custody by action or omission. Wood v. Beard, 290 So.2d 675 (La.1974); State in the Interest of Taylor 296 So.2d 841 (La.App. 2nd Cir.), writ refused, 299 So.2d 799 (La.1974); Girouard v. Halpin, 368 So.2d 1139 (La.App. 3rd Cir.), writ denied, 369 So.2d 1377 (La.1979); Tolar v. Cunningham, 368 So.2d 1188 (La.App. 3rd Cir.), writ refused, 369 So.2d 710 (La.1979); Paul v. Cloud, 378 So.2d 586 (La.App. 3rd Cir.1979), writ refused, 380 So.2d 101 (La.1980); Juneau v. Bordelon, 380 So.2d 208 (La.App. 3rd Cir.1980); LaCroix v. Cook, 383 So.2d 59 (La.App. 2nd Cir.), writ denied, 384 So.2d 801 (La.1980); LaPointe v. Menard, 412 So.2d 223 (La.App. 3rd Cir.1982).

In a very powerful and important footnote, the trial court made the following observations:

“During the trial it became evident to me that there was no controversy as between Mr. Berzins and Mr. Betts. I declared a recess and during the conference in chambers informed counsel of my suspicions that Mr. Betts was merely attempting to aid Mr. Berzins in his application based upon observations related to counsel relative to the demeanor of the parties and the manner in which the trial was progressing. I suggested that the Court should not be misled in this regard. After a brief discussion with his client, Mr. Kutch, counsel for Mr. Betts, verified that it was his client’s intention to leave the child in the actual custody of Mr. Berzins in the event of succeeding in this litigation. His testimony subsequently substantially bears out that representation. I therefore regard Mr. Betts in the nature of an interposed party. The prayer of his petition would have more adequately expressed his objective if he had prayed for custody in favor of Mr. Berzins and for himself in the alternative.”

After thoroughly reviewing the record, we find, as did the trial judge, that Johnny Betts intended to leave the child in the Berzins home had he been awarded custody. We find that an award of custody to Johnny Betts, who would then allow the child to remain in the Berzins home, would be both detrimental to the child and contrary to her best interest.

The record amply reveals that the Ber-zins home is unstable and unfit for proper care and development of the child. The Berzins trailer house is located immediately next door to a lounge. Plaintiff admitted at trial that he openly kept pornographic magazines and nude statues in the home. Witnesses testified that on occasion, they would visit the minor at the Berzins trailer house and that these lewd and lascivious materials were openly displayed. Further, on one occasion, Mrs. Tilley stated that while visiting there, Mr. Berzins was dressed without a shirt and in short pants which revealed his testicles as he would move about and sit. He made no effort to conceal his person and was ambivalent to the sloppy appearance and lewd materials about the house. Mr. Berzins acknowledged that he needed to “clean up the act” at trial. He stated, that in spite of this, he loved Shannon, the minor.

Without any doubt, we find that the minor’s continued residence at the Ber-zins home would be detrimental to her. We hold, as did the trial court, that the father, Johnny Betts, has forfeited his paramount parental rights of custody because of his desire and obvious intention to leave the child with plaintiff.

In considering the best interest of the child, the evidence convinces us that custody of this child should be placed with her maternal aunt and uncle, Reverend and Mrs. Eddie A. Tilley, intervenors. Reverend Tilley is a Pentecostal preacher and representative of missions entitled Pentecostal International in Scandinavia. He and his wife are both natives of Vernon Parish, Louisiana and claim this as their permanent residence. At the time of this trial, they were residents of Holland. They have a daughter twelve years of age who is compatible with Shannon. Reverend Til-ley’s annual income is $24,000 in addition to insurance coverage, travel expenses and other fringe benefits. The minor would be recognized as the Tilleys’ dependent for all purposes and it appears that an award of custody to them would not pose any undue financial burden on the Tilleys.

We are impressed by the testimony of the Tilleys, as was the trial court, and are convinced that they are willing and able to provide a stable and suitable home for the minor, Shannon. It is inescapable that the best interest of Shannon is best served by placing her in the custody of the Tilleys.

In child custody cases, the trial judge is vested with a vast amount of discretion in making a determination of custody. On appellate review, great deference must be accorded to the decision of the trial court, not only because of that court’s better capacity to evaluate witnesses, but also because of proper allocation of trial and appellate functions between the respective courts. Bagents v. Bagents, 419 So.2d 460 (La.1982); Bentley v. Bentley, 440 So.2d 1365 (La.App. 3rd Cir.1983), writ denied, 444 So.2d 125 (La.1984). The trial judge is in a better position to evaluate the best interest of a child from his total overview of the conduct and character of the parties. His discretion on the issue will not be disturbed on review in the absence of a clear showing of abuse thereof. Paul v. Cloud, 378 So.2d 586 (La.App. 3rd Cir.1979), writ denied, 380 So.2d 101 (La.1980).

After extensive review of the record, and in light of the facts set forth, we are convinced that the trial judge did not abuse his discretion in awarding custody of the child to the Tilleys over the father, Johnny Betts'. However, we note that this judgment is based upon the father’s intent to allow the child to remain with the plaintiff, Karlis Berzins, and it is not forever conclusive. The judgment may be set aside when and if the existing conditions change to the extent that it would not be detrimental to the child, but rather in her best interest, that she be placed in the custody of the father.

ISSUE # 2: TRIAL COURT COSTS

Finally, Karlis Berzins contends that he should not have been condemned to pay court costs in the trial court proceedings.

Generally, the party cast in judgment shall pay all costs of the trial. Further, the trial court has much discretion in assessing court costs. Swiftships, Inc. v. Burdin, 338 So.2d 1193 (La.App. 3rd Cir.1976). We find no error in the trial court’s assessment of costs.

DECREE

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed against plaintiff, Karlis Berzins, and plaintiff-in-rule in the companion case, Johnny Betts, to be divided equally.

AFFIRMED.


text:
    Sherry Wileman BETTS, Plaintiff-Appellee, v. Johnny D. BETTS, Defendant-Appellant.
    No. 83-910.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.
    Joseph Kutch, Leesville, for Johnny Betts.
    John Skaggs, Baton Rouge, for Sherry Betts.
    Don Martin, Leesville, for Karlis Berzins.
    Claude Leach, Jr., Leesville, for interve-nors.
    Before GUIDRY, LABORDE and YEL-VERTON, JJ.
   LABORDE, Judge.

For reasons assigned in the consolidated and companion case entitled Berzins v. Betts, 457 So.2d 282 (La.App. 3rd Cir.1984), decided by us this day, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Johnny Betts.

AFFIRMED.


author: CUTRER, Judge.

text:
    Wallace J. JENSEN, Sr., and as Administrator of the Estate of Minor Son, Wallace J. Jensen, Jr., Plaintiff-Appellant-Appellee, v. CENTRAL LOUISIANA ELECTRIC COMPANY, INC., et al., Defendants-Appellees-Appellants.
    No. 83-912.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.
    Writ Denied Nov. 26, 1984.

      Shelton & Legendre, Thomas Robert Shelton, Lafayette, for plaintiff-appellant-appellee.
    Voorhies & Labbe, Richard D. Chappuis, Jr., C. Michael Hill, John K. Hill, Jr., An-drus, Preis & Kraft, Edwin G. Preis, Jr., Lafayette, for defendants-appellees-appel-lants.
    Before DOMENGEAUX, CUTRER and DOUCET, JJ.
   CUTRER, Judge.

This is a suit for damages due to injuries resulting from the electric shock received by Wallace J. Jensen, Jr. Suit was brought by Wallace J. Jensen, Sr., individually and as administrator of the estate of Wallace J. Jensen, Jr. Named as defendants were The Housing Authority of the City of Crowley (hereinafter referred to Housing Authority); Fitch, Holdredge, Bisoñe and Holcombe, Inc. (hereinafter referred to as Fitch); Central Louisiana Electric Company, Inc. (hereinafter referred to as CLE-CO); Jerrie L. Breaux; Kenneth Loftin and Cleveland Construction Company. A third-party demand was filed by Fitch against CLECO and the other defendants. In response to the plaintiff’s demand and the demand of the third-party plaintiff, CLECO filed a motion for summary judgment seeking dismissal of the claims against it. This motion by CLECO was granted and William J. Jensen, Sr., and the third-party plaintiff, Fitch, appealed.

On September 10, 1977, Wallace J. Jensen, Sr., and the other co-defendants, Breaux and Loftin, were attempting to remove a C.B. radio antenna which was mounted on the eave of the Jensen residence. During this process, the antenna fell on electric wires running through the branches of some trees. Wallace J. Jensen, Jr., attempted to assist in removing the antenna. When.he took hold of it, he received an electric shock causing injuries for which damages are sought. This accident occurred at the Westwood Apartments in which the plaintiff resided and which are owned by the Housing Authority of the City of Crowley, Louisiana.

The sole issue on appeal is whether the trial court erred in granting the motion for summary judgment.

We have carefully reviewed the record and have concluded that there is no issue of material fact. Clearly, the trial court correctly granted CLECO’s motion for summary judgment.

The deposition of J.D. Miller, executive director and administrator of the Housing Authority, reflects that he had been employed by the Housing Authority for twenty years as of June 1983. He stated that the Housing Authority employed Fitch as architects to design the Westwood Housing complex in the City of Crowley. Cleveland Construction Company was employed to construct the project. The construction began in approximately 1970 and was completed in 1972.

Miller stated that the Housing Authority was the owner of the distribution system. The Housing Authority had the exclusive responsibility of maintaining the system including the cutting of any necessary tree limbs.

Miller testified that CLECO’s only involvement with the project was to act as the supplier of the electricity. CLECO sold electricity to the project by installing a meter on a pole at the entrance, which meter fed the electricity to the Housing Authority’s electrical distribution system. When the electricity left the meter it became the property of the Housing Authority. Additionally, the Housing Authority would, on some occasions, call CLECO to make some necessary repair on their system. This repair work was done by CLE-CO on a job-to-job basis and CLECO would bill the Housing Authority for each job as it was performed. CLECO had no maintenance contract with the Housing Authority.

In the record also is an affidavit by Phillip Caffery, CLECO manager of operations in the City of Crowley. The facts set forth in this affidavit support the facts as reiterated by Miller. They state as follows:

“Central Louisiana Electric Company does not serve the individual inhabitants of Westwood Apartments located on property owned by the Housing Authority of the City of Crowley but merely sells electrical power to the said authority at its meter located at one of the entrances to the housing project; and from said meter the aforesaid Housing Authority distributes the electrical power to all of the individual dwellings and users throughout the Housing Authority’s electrical distribution lines... Central Louisiana Electric Company does not maintain any of the electrical wires or transmission lines of the electrical distribution system on the Housing Authority property. Similarly, Central Louisiana Electric Company does not maintain any of the electrical appliances such as an-tennaes, on the Housing Authority premises. That only upon specific request from someone at the Housing Authority of the City of Crowley, do employees of Central Louisiana Electric Company occasionally go onto the premises of the Housing Authority for the purpose of performing work to restore service due to a power failure. Such work of restoring service by employees of Central Louisiana Electric Company is performed in the event of a power failure, in an emergency type situation, and such is done only at the direct request by someone at the Housing Authority premises. On the occasion of any such service call, Central Louisiana Electric Company bills the Housing Authority of the City of Crowley for its work and the bill, [in] every ... instance, has been paid. However, Central Louisiana Electric Company is not responsible for the maintenance of any part of the electrical distribution system of the housing project owned by the Housing Authority of the City of Crowley and only, on occasion, performs such service calls as above referred to.”

Appearing in the record are the affidavits of Wallace J. Jensen, Sr., and Wallace J. Jensen, Jr. The facts of these affidavits are identical and state as follows:

“That prior to September 10, 1977 he resided at apartment number 257 of the Westwood Apartment Complex located in Crowley, Louisiana. That he resided at this apartment for three (3) years prior to September 10, 1977. That on several occasions prior to September 10, 1977, he saw vehicles from CENTRAL LOUISIANA ELECTRIC COMPANY, INC. perform maintenance on the power lines situated adjacent to petitioner’s apartment. That on these occasions, appearer saw employees of CENTRAL LOUISIANA ELECTRIC COMPANY, INC. perform maintenance on these power lines. ”

The question now arises as to whether CLECO had a duty to protect a person from injury under the circumstances presented.

A very similar set of circumstances was presented to this court in the case of Vital v. Hous. Auth. of City of New Iberia, 360 So.2d 1182 (La.App. 3rd Cir.1978).

In that case, Brian and Nelson Vital were electrocuted when a television antenna they were installing came in contact with an electrical power line. The victims were living in a residence owned by the Housing Authority. The death action was brought against the Housing Authority and CLE-CO. CLECO filed a motion for summary judgment which was granted by the trial court on the basis that CLECO merely sold electricity to the Housing Authority at the Authority’s meter and the Authority distributed the electricity to the dwellings in the project through lines constructed, owned, operated and maintained by the Authority and not by CLECO. The antenna struck one of the lines owned by the Housing Authority.

On appeal the plaintiffs contended that CLECO, through its employees, knew or should have known that there were many television antennae in the project in close proximity of the uninsulated electric lines and that CLECO was negligent in furnishing power when it knew or should have known of these hazardous conditions.

This court affirmed the trial court which granted the motion for summary judgment, stating that:

“mere knowledge by CLECO employees, as stated in plaintiffs’ opposing affidavit, that TV antennas in the project were ‘in close proximity’ to uninsulated electric wires, would not be knowledge of a condition which is clearly an immediate danger of injury sufficient to charge the power company with the duty to de-energize the line. The presence of TV antennas ‘in close proximity’ to uninsulated electric wires is not a hazard unless an antenna contacts a wire. Wherever there is electric power, there is always a certain amount of danger. But the social utility of the electric power must be balanced against its hazard. See the full discussion of these theories of negligence in Allien v. Louisiana Power & Light Company, 202 So.2d 70j (La.App.3rd Cir.1967).
“To hold power companies liable wherever any of their employees know of a condition on a customer’s premises which could possibly result in injury would place an unreasonable burden on them as to conditions which they did not cause, and over which they have no control except to cut off the power.”

This same reasoning applies to the case at hand. The mere knowledge by CLECO of the presence of antennae and tree limbs near the power lines, owned and maintained by the Housing Authority, would not be knowledge of a condition which is clearly an immediate danger of injury sufficient to charge CLECO, the supplier, with the duty to de-energize the line.

The evidence is clear that CLECO was only a supplier. The Housing Authority designed and constructed the power lines within the project and had full responsibility for the maintenance of same. Under the ruling in Vital and the facts of this case, CLECO could not be liable for the injuries received by plaintiffs son. The motion for summary judgment was correctly granted by the trial court.

The case of Meche v. Gulf States Utilities Co., 436 So.2d 538 (La.1983), is distinguishable from the case at hand. In Meche, the defendant was owner of the power line. Also, it had the responsibility for the maintenance of the line. In the case at hand, CLECO had no such responsibility.

For these reasons, the judgment of the trial court is affirmed. The case is remanded for further proceedings according to law and according to the views expressed herein. Costs of this appeal to be paid by appellants.

AFFIRMED AND REMANDED.

      . Fitch were the architects and engineers who designed the electrical distribution system for the Housing Authority. Cleveland Construction Company was the contractor who installed the distribution system.


author: FORET, Judge.

text:
    Leroy J. STARK, II, Plaintiff-Appellant, v. EUNICE SUPERETTE, INC., et al., Defendant-Appellee.
    No. 83-918.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.
    Writ Denied Dec. 7, 1984.

      Privat & Regan, Kenneth 0. Privat, Crowley, for plaintiff-appellant.
    Michael W. Fontenot and Welton P. Mouton, Jr., Lafayette, Franklin, Moore & Walsh, James R. Shelton, Opelousas, for defendant-appellee.
    Before FORET, STOKER and KNOLL, JJ.
   FORET, Judge.

Plaintiff, Leroy J. Stark, II, filed suit against Eunice Superette, Inc. and the City of Eunice, seeking damages for malicious prosecution. Prior to trial, plaintiff voluntarily dismissed his suit as to the City of Eunice. The trial court rendered judgment in favor of defendant, Eunice Superette, Inc., and plaintiff has appealed. Several issues are raised by this appeal:

(1)Whether the trial court erred in concluding that all of the elements necessary for malicious prosecution were not present.
(2) Whether the trial court erred in failing to find that a false arrest occurred.
(3) Whether the trial court erred in failing to find that the actions of Eunice Superette, Inc., through its owners and employees, constituted an abuse of process.
(4) Whether the trial court erred in not finding that defendant had breached a duty of care owed to plaintiff by failing to follow its own check cashing policy.

FACTS

On September 29 or 30 of 1980, an individual presented an LSU Eunice payroll check in the amount of $1,663.43, payable to L.J. Stark, at the Eunice Superette. The check was cashed by Peggy LeMoine (Peggy Mouier at that time), an employee of defendant. Approximately one month later, defendant’s employees léarned that the check had been forged. L.J. Stark had reported the check missing shortly after September 30, 1980. On October 21, 1980, he executed, in accordance with the policy of his employer, an affidavit declaring the endorsement on the check to be a forgery.

Upon discovering that the check had been forged, defendant’s employees reported the theft to Eunice City Police, and an officer from the department was sent to investigate. The officer interviewed Peggy LeMoine and Mark K. Guillory, a bookkeeper for defendant who was present when the check was cashed and approved its cashing. At that time, neither employee mould identify the person who had cashed the check, although both of them were able to give a description of the individual. The investigating officer testified that he had a meeting with Jerome Moore, the owner of Eunice Superette, Inc. and that Mr. Moore was interested in the progress of the investigation. This meeting took place before plaintiff was implicated in the crime and there was no suggestion that Mr. Moore steered the investigation toward plaintiff.

Some five weeks after his first interview with the investigating officer, Guillory advised the Eunice Police Department that he suspected that it may have been one of L.J. Stark’s sons who had cashed the check. He informed the police that he remembered talking to Mr. Stark’s son while the latter was cashing a check and that this was about the same day and time that the forged check was cashed. Although Guil-lory did not know Mr. Stark’s sons by name, he knew them by sight since the Stark family had been regular customers of the superette during the seven years Guillory was employed there. Guillory identified plaintiff from a photographic spread. The investigating officer then obtained a warrant for plaintiffs arrest on the charge of theft by fraudulent means (LSA-R.S. 14:67).

Plaintiff was arrested at Louisiana Tech in Ruston, Louisiana, where he attended school. On the day of plaintiffs arrest, plaintiff was also identified by Peggy LeM-oine from the same photographic spread that police had shown to Guillory. The matter was not finally resolved until August 10, 1981, when the St. Landry Parish Grand Jury returned a no true bill.

Plaintiff brought suit against Eunice Su-perette, Inc. and the City of Eunice. Prior to trial, plaintiff voluntarily dismissed his suit against the City of Eunice. After trial, the court rendered judgment in favor of Eunice Superette, Inc. finding that although plaintiff was not involved in cashing the forged check, that defendant was not liable to plaintiff for damages since the actions of defendant’s employees and owner were not so unreasonable as to be legally unjustified.

The jurisprudence of this State has interpreted LSA-C.C. Art. 2315 as providing a cause of action in favor of those “whose liberty has been interfered with in an unwarranted manner”. Jones v. Soileau, 448 So.2d 1268 (La.1984), quoting Stone, 12 La. Civil Law Treatise, Tort Doctrine, § 200-01 at 264-66 (1977). Categorization of such a tort as malicious prosecution, abuse of process, or false imprisonment derives from the common law’s treatment of this area of the law. See Jones v. Simonson, 292 So.2d 251 (La.App. 4 Cir.1974). Our courts have, on occasion, cautioned against the application of the limited strictures of the common law actions arguing that the concept of fault embodied in Civil Code Art. 2315 provides a broader extension of liability. Jones v. Simonson, supra; Whittington v. Gibson Discount Center, 296 So.2d 375 (La.App. 2 Cir.1974). Nevertheless, our courts have generally recognized the common law categorization of these torts and the concommitant strictures which govern the imposition of liability. (For malicious prosecution, see: Jones v. Soileau, supra; Vasseur v. Eunice Superette, Inc., 386 So.2d 692 (La.App. 3 Cir.1980), writ refused, 393 So.2d 747 (La.1980); Hibernia National Bank of New Orleans v. Bolleter, 390 So.2d 842 (La.1980). For false arrest, see Tillman v. Holsum Bakeries, Inc., 244 So.2d 681 (La.App. 4 Cir.1971), application denied, 258 La. 352, 246 So.2d 199 (1971). For abuse of process, see: Vasseur v. Eunice Superette, Inc., supra; Mini-Togs, Inc. v. Young, 354 So.2d 1389 (La.App. 2 Cir.1978); Succession of Cutrer v. Curtis, 341 So.2d 1209 (La.App. 1 Cir.1976), writ denied, 343 So.2d 201 (La.1977)).

MALICIOUS PROSECUTION

In Jones v. Soileau, supra, the Supreme Court lists the necessary elements of a malicious prosecution action:

“... (1) the commencement or continuance of an original criminal or civil judicial proceeding; (2) its legal causation by the present defendant in the original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice therein; and (6) damage conforming to legal standards resulting to plaintiff.”

In the present case, the absence of probable cause and the presence of malice are both disputed.

The crucial determination in regard to the absence of probable cause is whether the defendant had an honest and reasonable belief in the guilt of the plaintiff at the time charges were pressed. Jones v. Soileau, supra. The trial court determined that defendant’s employees did have such an honest and reasonable belief. We concur in this determination of the trial court.

Admittedly, defendant’s two employees did mistakenly identify plaintiff as the individual who had cashed the forged check. It is also undisputed that Guillory, although familiar with plaintiff and his brothers, did not inform the police of his suspicion that the perpetrator was one of L.J. Stark’s sons until more than a month after his initial interview with the investigating officer. In this regard, we note that one of the major difficulties that faced defendant’s employees in their attempt to aid the police investigation was the fact that they had not learned of the forgery until more than a month after it had occurred. As a result, defendant’s employees had the difficult task of remembering what had occurred, more than a month before, on what must have appeared at the time to be a routine day. In his initial statement implicating plaintiff and his brothers, Guillory informed the police that the reason he suspected one of L.J. Stark’s sons was because he remembered speaking with Mr. Stark’s son while the latter was cashing a check for a large amount of money. Guillory told the police that he could not say with certainty that Mr. Stark’s son had cashed the forged check but that he, Guillory, recalled that the conversation with Mr. Stark’s son took place around the time that the forged check was cashed. Under the circumstances, we do not think that Guillory’s delayed identification was so unreasonable as to make us conclude that Guillory did not have an honest and reasonable belief in the guilt of plaintiff at the time he identified plaintiff.

As the trial court observed in its written reasons for judgment:

“What we have is misidentifications [sic] by both Mrs. Peggy Lemoine and Mark Guillory. These are among the most difficult problems in criminal work; they occur frequently. Also, on Guillory’s part there was a delayed or lapsed memory with possible explanations. The testimony of Mr. Guillory and his manner of giving it indicate to me that the problems stemmed from a natural confusion on his part and his simplistic approach to the problems.
“Mistakes of these kind [sic] are not actionable in a criminal apprehension situation. They are at the heart of the decision whether to proceed against a particular individual. Until that decision is made, much evidence is left uncovered. If reasonable leeway for mistakes at that point is not given, criminal investigation will be substantially hampered.
“The decision to arrest in this case was not made by defendant or any of its employees. It was the decision of the police officer. Plaintiff’s employees cooperated with and gave information to best of their ability. Their honest mistakes cannot be the basis of responsibility.”

At least some of the responsibility for the misidentification of plaintiff rests with the police. Both of defendant’s employees initially identified plaintiff from the same photographic spread. This spread consisted of seven photographs: one each of plaintiff’s two brothers, one of another individual, and four of plaintiff. Clearly, the photographic spread was biased against plaintiff. To what extent this bias might have led to the misidentification of plaintiff by defendant’s employees, we can only surmise. This bias, along with the danger of misidentification it occasioned, was not the fault of defendant nor its employees, but of the police.

Given all of the circumstances, we think that the actions of defendant’s owner and employees were not unreasonable and, that to the extent that they caused the criminal prosecution to be brought against plaintiff, they acted with probable cause.

For essentially the same reasons, we feel that the element of malice is also lacking. Malice exists when a charge is made with knowledge that it is false or with reckless disregard for the truth. Hill v. Smith, 399 So.2d 708 (La.App. 1 Cir.1981). The evidence does not indicate that defendant’s employees intentionally misidentified plaintiff, nor does it appear that the misidentifications evidenced, under the circumstances, a reckless disregard for the truth.

Since two of the necessary elements for an action of malicious prosecution are lacking, plaintiff cannot recover under this theory.

ABUSE OF PROCESS

The two essential elements- of abuse of process are: (1) an ulterior purpose and (2) a wilful act in the use of the process not proper in the regular conduct of the proceeding. Vasseur v. Eunice Su-perette, Inc., supra. It involves the misuse of a process already legally issued whereby a party attempts to obtain some result not proper under law. Succession of Cutrer v. Curtis, supra, citing Gonsouland v. Rosomano, 176 Fed. 481 (U.S. CCA 5th Cir.1910).

In the present case, plaintiff failed to prove that defendant’s employees had an ulterior purpose in providing information to the police. Although there was a suggestion that one of defendant’s employees wanted to “pin” the crime on plaintiff, no evidence was adduced in support of this contention. Moreover, there was no evidence suggesting that defendant had attempted to use the criminal process to obtain payment from plaintiff or his family.

The second essential element for the action of abuse of process is also lacking. There was no evidence indicating that the criminal process had been misused in an attempt to attain some improper end. Plaintiff was arrested and, in due course, the matter was brought before the St. Landry Parish Grand Jury which returned a no true bill. Nowhere is there any suggestion that defendant’s owner or employees misused the criminal process once it was instituted.

FALSE ARREST

The tort of false arrest has been recognized under Louisiana law. To prove false arrest, the plaintiff must show that the arrest was made without any legal process or warrant or under a warrant null and void on its face. Tillman v. Holsum Bakeries, Inc., supra. Plaintiff was arrested pursuant to a valid arrest warrant issued by the City Court of Eunice. Plaintiff clearly cannot recover as a victim of a false arrest.

DEFENDANT’S DUTY TO PLAINTIFF

In his brief, plaintiff contends that he is entitled to recover damages from defendant because defendant breached a duty owed to him when it failed to follow its check cashing policy. We disagree, finding that defendant owed no duty to plaintiff in this regard. The duty that defendant’s employees had to follow defendant’s check cashing policy did not enure to plaintiff’s benefit. Such policies are primarily designed to prevent the check cashing establishment from suffering losses as a result of cashing forged or otherwise bad checks. Although the duty of such an establishment in this regard may extend beyond self-protection, it is not so broad as to include a duty to an individual who might be mistakenly arrested for the crime of theft by fraud. We will not hold that the victim of a crime who becomes a victim due, at least partially, to his own negligence has breached a duty to anyone who might be mistakenly arrested for that crime. Such a result would be neither practical nor just.

Plaintiff has indicated no jurisprudence which will condone the creation of such a duty. The cases cited by plaintiff are inap-posite. Accordingly, we find that defendant is not liable to plaintiff for defendant’s failure to follow its own check cashing policy.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.


text:
    INTERNATIONAL HARVESTER CREDIT CORPORATION, Plaintiff-Appellee, v. Lee L. RICHARD, Defendant-Appellant.
    No. 83-919.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.
    Laborde & Lafargue, David Lafargue, Marksville, for plaintiff-appellee.
    J. Harold Fontenot, Opelousas, for defendant-appellant.
    Before DOMENGEAUX, CUTRER and DOUCET, JJ.
   CUTRER, Judge.

This appeal arises out of a suit for the balance due on three promissory notes which were secured by chattel mortgages on several items of farm equipment.

The plaintiff, International Harvester Credit Corporation (International Harvester), sued Lee L. Richard for the balance due ($86,221.76) on three promissory notes he executed as part of three credit sales of farm equipment that he entered into with plaintiff’s assignor, Rabalais Truck & Tractor Co., Inc. The notes were secured by chattel mortgages on the equipment and included an acceleration clause effective upon nonpayment of any installment and a 25% attorney’s fees provision.

In April 1982, defendant had defaulted on two of the notes and was about to default on the third note which was due on May 1, 1982. Early in April 1982, defendant notified International Harvester that he was unable to make the payments on any of the notes.

On April 20, 1982, Nicholas Caillouet of International Harvester delivered two powers of attorney forms to defendant’s wife so he could read the agreements. The defendant executed the powers of attorney on April 27, 1982 which gave International Harvester the power to sell the equipment and apply the proceeds to the balance due on the notes. International Harvester took possession of the farm equipment and brought it to Rabalais Truck & Tractor where the dealer placed the equipment upon his lot and displayed it for sale. Unfortunately, the market for farm equipment deteriorated during this time and International Harvester was unable to sell the equipment. After six months, plaintiff filed this suit to collect the amount due on the notes together with legal interest and 25% of the aggregate as attorney’s fees. Defendant answered the suit alleging that he surrendered possession of the farm equipment based on his understanding that International Harvester would grant him a full release and, as a result, plaintiff should be estopped from enforcing the balance due on the notes. The trial court ruled in favor of International Harvester and awarded it $86,221.76, legal interest and 25% attorney’s fees as prayed for.

The defendant appeals and we affirm.

Defendant asserts that he believed that, by signing the powers of attorney, he was released from any further payments on the notes. Thus, International Harvester should be estopped from collecting the balance due on the notes. We disagree.

The law of estoppel is set forth by this court in the case of Chambers v. Parochial Emp. Retirement System, 398 So.2d 102 (La.App. 3rd Cir.1981), writ den., 400 So.2d 1382 (La.1981), wherein the court held as follows:

“There are three elements of estoppel:
(1) A representation by condúct or word;
(2) A justifiable reliance on such representation by the person to whom it is made; and
(3) A change in position to one’s detriment because of the reliance.
Estoppels are not favored in our law. * * * They will be applied, however, when the evidence warrants it and when the ends of justice demand it. * * Being an equitable remedy, it must be applied with equity. * * * ” (Citations omitted.)

With these principles in mind, we look to the facts of this case to determine if the doctrine of estoppel is applicable. The first question to answer is whether the instruments signed by the defendant created an estoppel that would be a defense to this suit.

The two powers of attorney signed by the defendant were in full compliance with the provisions of LSA-C.C. art. 2985 et seq (the nature and form of mandates). The two powers of attorney were identical except for the description of the equipment in each. The relevant portion of the agreements empower International Harvester to act as defendant’s agent as follows:

“1. To sell, alienate and convey with full warranty all of my rights, title and interest in the following described property, to wit:
[Equipment described.] and is further authorized to hold the property until_before selling it as authorized in this Power of Attorney.
“2. To make payment of all indebtedness, liens, chattel mortgages or other charges against the said property in order to convey a clear title thereto. “3. This property may be sold for any price determined by the hereinabove agent, who warrants that he shall sell same for the best price obtainable and for the current market value. Said agent may deduct from the sale price sums expended to put the vehicle in saleable condition, the costs and expenses of sale, and a sales commission of not over_per cent.
All surplus remaining after the sale of said property and the payment of any debts or encumbrances thereon shall be returned by the agent to the undersigned immediately upon the consummation of said sale.”

These powers of attorney are clear and unambiguous. They simply appoint International Harvester as defendant’s agent to sell the equipment listed therein and apply the proceeds to the balance due on the notes. These documents do not purport to be a release nor could they reasonably be mistaken for one.

Defendant testified that International Harvester’s representative, Caillouet, told him that, if he would sign the instruments, he would be released from payment of the debt. Caillouet denied having told defendant that the execution of the instruments would release him from any further debt. The trial court accepted the testimony of Caillouet, concluding that the transaction was fully explained to the defendant. The trial judge, in his reasons for judgment, stated as follows:

“The testimony is that the nature of the turnover transaction was fully explained. More important, there was a written document evidencing the nature of the deal. Without a reasonable belief in the extinguishment, there is no basis for estoppel.”

The trial court concluded that there was no release given by International Harvester to defendant. The record supports such a conclusion.

Defendant cites Int. Harv. Cred. Corp. v. Am. Troubleshooters, Inc., 338 So.2d 708 (La.App. 4th Cir.1976), to support his argument that his surrender of the equipment justified his belief that he was granted a full release. In that case, the defendant-company was in default on the payment of notes for a truck and a stumpcutter. The company’s president, Carmelo Graffag-nini, testified that he made an oral agreement with an International Harvester representative that he would buy another vehicle from them if he was granted a release on the truck and the stumpcutter. Believing that he would be released by the purchase of a new vehicle, he later surrendered the two pieces of equipment to International Harvester. The defendant purchased a new vehicle, yet International Harvester still filed suit to collect the unpaid balance on the truck and the stump-cutter. The court held that the surrender of the vehicles, combined with International Harvester's silence, thereafter gave defendant a reasonable belief that he was released. The facts of the case at hand are different as the defendant in this case was never promised a release in exchange for the execution of the powers of attorney.

We conclude that the trial court correctly east the defendant in judgment.

For these reasons, the judgment of the trial court is affirmed. Defendant-appellant is to pay the costs of this appeal.

AFFIRMED.


text:
    SOUTHEASTERN FIDELITY INSURANCE COMPANY & Rita Williams, Plaintiffs-Appellants, v. Early PORTER, Defendant-Appellee.
    No. 83-927.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.

      Alfred F. Boustany, II, Lafayette, for plaintiffs-appellants.
    Fredric G. Hayes, Lafayette, for defendant-appellee.
    Before FORET, STOKER and KNOLL, JJ.
   FORET, Judge.

Is a suit by an uninsured motorist (UM) carrier against the tort-feasor to recover money paid under the insurer’s UM coverage barred by prescription when suit is filed against the tort-feasor less than one year following the payment of the UM claim but more than one year following the accident?

Plaintiff, Southeastern Fidelity Insurance Company, filed suit against defendant, Early Porter, seeking to recover money Southeastern Fidelity had paid to its insured, Rita Williams (also a plaintiff) in satisfaction of her claim under its UM coverage. Plaintiff-insurer alleged that defendant was the tort-feasor in an accident involving its insured. Defendant filed a peremptory exception of prescription which was sustained by the trial court. Plaintiff has appealed.

FACTS

Rita Williams and defendant, Early Porter, were involved in an accident on or about June 4, 1981. At the time of the accident, plaintiff, Southeastern Fidelity Insurance Company, was Rita Williams’ UM carrier. On September 29, 1982, plaintiff-insurer paid Rita Williams’ UM claim. On June 6,1983, more than two years after the accident, plaintiff-insurer filed suit against defendant to recover the money it had paid to its insured. Prior to this, neither plaintiff-insurer nor its insured had filed suit against defendant. Defendant filed a peremptory exception claiming that plaintiff-insurer’s suit had prescribed. The trial court sustained defendant’s exception and plaintiff appealed.

HAD PLAINTIFF’S CAUSE OF ACTION PRESCRIBED?

In Liberty Mutual Insurance Company v. Brawner, 353 So.2d 487 (La.App. 3 Cir.1977), we held that a UM carrier who pays the claim of an injured party acquires no greater rights against the tort-feasor than that which the injured party had. We concluded that when the injured party’s cause of action against the tort-feasor is barred by one-year prescription, the cause of action to which the UM carrier becomes sub-rogated by its payment of the claim is likewise barred.

In the present case, the accident occurred on or about June 4, 1981. Plaintiff, the UM carrier, did not make payment to the victim until September 29, 1982, more than one year after the .accident. Suit was not filed against defendant, the alleged tort-feasor, until June 6, 1983. Under our holding in Liberty Mutual Insurance Company v. Brawner, supra, plaintiff’s cause of action had prescribed and the trial court correctly sustained defendant’s objection of prescription.

Plaintiff cites Hoefly v. Government Employees Insurance Company, 418 So.2d 575 (La.1982), for the proposition that the UM carrier and tort-feasor are obligated in solido to the injured party. Plaintiff contends that as a solidary obligor, it was entitled to indemnity from defendant, the tort-feasor. Furthermore, it argues that prescription should not have begun to run against its claim for indemnity until it paid the injured party’s claim. See Thomas v. W & W Clarklift, Inc., 375 So.2d 375 (La.1979).

Plaintiff’s argument rests on the assumption that the solidary obligation imposed on a UM carrier and the tort-feasor for the injured party’s benefit is determinative of the relationship between the UM carrier and the tort-feasor, i.e., that the effects of solidarity, including the right to contribution or indemnity, are applicable to the relationship between a UM carrier and a tort-feasor. However, as the court said in Hoefly:

“Allstate argues that the conclusion we have reached will cause all effects of solidarity to be applied in uninsured motorist cases. Care should be taken by civilian attorneys and jurists to be on guard against applying one segment of the code in isolation from others. Neither the Civil Code nor the revised statutes were intended to be applied in this manner. A full delineation of the relationship between the tortfeasor and the uninsured motorist carrier after payment of the debt owed by them solidarily is beyond the scope of this case. However, it is clear that the Civil Code recognizes that debtors, although solidarily bound for the creditor’s benefit, may have differing relationships among themselves. The conclusion that debtors are solidarily bound does not alone determine the rights and obligations of the debtors in relation to each other. La.C.C. arts. 2103, 2104, 2106; 2 M. Planiol, supra, nos. 767-771; Wooten v. Wimberly [272 So.2d 303], supra (Tate, J., concurring). The Work of the Louisiana Appellate Courts for the 1972-1973 Term — Obligations, 34 La.L.Rev. 231, 233 (1974).” (Emphasis provided.)

We do not interpret Hoefly as holding that the effects of solidarity apply to the relationship between the UM carrier and the tort-feasor. Indeed, the court warned against such an interpretation of their ruling. Consequently, we think that our decision in Liberty Mutual Insurance Company v. Brawner, supra, and the decision of the Fourth Circuit in United States Fire Insurance Company v. Lawson, 317 So.2d 217 (La.App. 4 Cir.1975), writ refused, 321 So.2d 367 (La.1975), have not been overruled and represent not only clear precedent but the best view of this matter. At the time that plaintiff-insurer commenced its action against defendant, its insured’s claim and, therefore, the claim it was sub-rogated to had prescribed. Accordingly, we concur in the trial court’s action in sustaining defendant’s exception of prescription.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed against plaintiff-appellant, Southeastern Fidelity Insurance Company.

AFFIRMED.


author: KNOLL, Judge.

text:
    Kenneth LELEUX, Plaintiff-Appellant, v. The HOME INDEMNITY COMPANY, World Wide Oil Tool, Inc. a Subsidiary of Gator Hawk, Inc. & Donald Wayne Turner, Defendants-Appellees.
    No. 83-934.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.

      William J.F. Gearheard, Lafayette, for plaintiff-appellant.
    Jeansonne, Briney & Goudelocke, Patrick J. Briney, Lafayette, for defendants-appel-lees.
    Before FORET, STOKER and KNOLL, JJ.
   KNOLL, Judge.

Kenneth Leleux brings this appeal contending a jury award of $5,000 for personal injuries was inadequate. We affirm, finding the jury did not abuse its wide discretion in determining a damage award.

Leleux filed suit against World Wide Oil Tool, Inc., its employee, Donald Wayne Turner, and its insurer, The Home Indemnity Company, to recover damages for personal injuries resulting from an automobile accident on June 25, 1981. Liability was admitted; the sole issue before the jury was quantum.

The accident happened in the following manner: a World Wide oilfield supply truck driven by Donald Turner ran a stop sign causing Leleux’s automobile to collide broadside into the Turner truck. The impact of the accident damaged the front left portion of Leleux’s car and caused it to spin around several times. The following morning Leleux began having neck and upper back pain. Four days later, on June 29, 1981, he was first treated for his complaints.

A reviewing court should not disturb the trier of fact’s damage award absent a determination that the fact-finder abused its much discretion under the facts of the particular case. Benson v. Seagraves, 445 So.2d 187 (La.App. 3rd Cir.1984), writ denied, 447 So.2d 1071 (La.1984); Reck v. Stevens, 373 So.2d 498 (La.1979). In the present case, the trial court did not utilize either special verdicts or interrogatories to itemize the elements of damage. A lump sum judgment of damages is presumed to award all items of damage claimed, and the appellant’s burden of proving the fact-finder clearly abused its great discretion is more difficult than usual, because the intention to award a specific amount for any particular item is not readily ascertainable. Dunaway v. Rester Refrigeration Service, Inc., 428 So.2d 1064 (La.App. 1st Cir.1983), writ denied, 433 So.2d 1056, 1057. To determine if an abuse of discretion has occurred when a general verdict has been used, each case must be analyzed on its own facts and circumstances, and each element of damages claimed must be examined. Washington v. Lake City Beverage, Inc., 352 So.2d 717 (La.App. 3rd Cir.1977), writ denied, 354 So.2d 1050 (La.1978).

In his petition for damages Leleux sought recovery for lost wages, pain and suffering, medical expenses, permanent disability, and future medical expenses.

Leleux missed work until August, 1981. The litigants stipulated that the amount of lost wages totaled $2,000. This item of damages was not disputed and may be reasonably assumed to have been included in the damage award.

The area of greatest conflict involves Leleux’s claim that he suffered debilitating headaches five to six times a week which continued to the date of trial.

Leleux first sought medical treatment on June 29, 1981, from Dr. Joseph Musso for neck and upper back pain which persisted when his neck was hyperextended. X-rays of the neck and upper back were normal and there were no muscle spasms. He diagnosed Leleux’s injury as a cervical sprain and treated him with muscle relaxants, pain medication, and recommended the use of a heating pad. On July 8, 1981, Dr. Musso began Leleux on a regimen of daily physical therapy which continued through July 28, 1981. On July 9, 1981, Leleux began complaining of headaches which Dr. Musso found compatible with a cervical sprain. By July 21, 1981, Leleux indicated a subsidence of the headaches. On July 28, 1981, Dr. Musso found Leleux had full range of motion in his neck, was no longer complaining of pain and headaches, and was discharged to return to work. Dr. Musso did not treat Leleux again for this injury.

Eight months later, on March 1, 1982, Dr. Domingue, a neurologist who specializes in neck sprains and headaches, treated Leleux for headaches of varying frequency with pain focused on the back of the neck where the neck joins the head. His initial treatment was the same as Dr. Musso’s and physical therapy was again ordered. An EEG done on March 22, 1982, and a CT Scan performed on May 18, 1982, were normal. Complaints of headache pain continued, and on March 30, 1982, Dr. Do-mingue discontinued the use of a muscle relaxant and prescribed motrin. On May 4, 1982, Leleux was given a cortisone injection in the neck. On June 8, 1982, Leleux returned still complaining of headaches. Dr. Domingue released Leleux opining that he did not have any serious neurological problems and that he could offer no further treatment. One year later, on May 23, 1983, Leleux saw Dr. Domingue, who at that time referred Leleux to Dr. Norman Anseman, a specialist in physical medicine and rehabilitation.

Dr. Anseman examined Leleux on June 14, 1983, for neck pain and headaches. Neurologically Leleux’s examination was normal. He had no limitation of neck movement and no muscle spasms. Nevertheless, Leleux had subjective complaints of discomfort on extension and rotation of the neck. Dr. Anseman’s initial diagnosis was occipital neuralgia. Cortisone was injected in the neck, and daily physical therapy was resumed. Leleux was instructed to improve his posture and was put on an exercise program. By the second visit on June 28,1983, Leleux advised Dr. Anseman that his headaches had decreased to three times a week for approximately one hour, otherwise, he was experiencing no pain. Dr. Anseman’s prognosis for Leleux was good; he opined that Leleux would be fully recovered in the near future and the need for further medical treatment seemed doubtful.

Leleux testified he saw no doctor and took no medication for his headaches between the intervals of July 28, 1981 to March 1, 1982, and June 8, 1982 to May 23, 1983. After Leleux returned to work, he missed only eight days of work because of his headaches and never consulted a doctor. Doctors Domingue and Anseman were of the opinion that there was a connexity between the accident and Leleux’s headache complaints, but their determination was based largely on the case history Leleux provided. They also testified that the continued headaches could have been caused by such diverse things as anxiety, poor posture, or stress. Finally, all three treating physicians described Leleux’s headache pain as not being severe.

From this evidence it may be concluded that the jury chose to minimize Leleux’s subjective complaints of pain. Because of this and the use of a general verdict, we are unable to determine whether the jury chose to award any or all of the $1,779.90 claimed as medical expenses.

Leleux also claimed damages for permanent disability and future medical expenses. Dr. Anseman testified that Leleux was progressing well, thought he would not require continued treatment, and believed that he would be able to discharge him soon. The jury was presented with sufficient evidence to conclude that Leleux would not have a permanent disability and future medical treatment would be minimal.

Questions of fact and credibility are generally left to the jury and its finding should not be disturbed unless they are manifestly erroneous. After reviewing the record, we can not say that the jury was manifestly erroneous in its evaluation of the case and its award of $5,000.

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed against Kenneth Leleux, appellant.

AFFIRMED.