author: DOMENGEAUX, Judge.

text:
    Leroy ALBERT, Plaintiff-Appellant, v. Dr. Tuncay ERTAN, Defendant-Appellee.
    No. 83-863.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.

      Edward Larvadain, Jr., Alexandria, for plaintiff-appellant.
    Trimble, Percy, Smith, Wilson, Foote & Walker, James T. Trimble, Jr., Alexandria, for defendant-appellee.
    Before DOMENGEAUX, CUTRER and DOUCET, JJ.
   DOMENGEAUX, Judge.

Leroy Albert brought suit against Dr. Tuncay Ertan for damages alleging that the physician submitted a false medical report to the Social Security Administration. After the plaintiff presented evidence at trial, the trial court dismissed his suit. From that judgment the plaintiff perfects this appeal.

In May of 1980, Mr. Albert applied for disability benefits from the Social Security Administration on the grounds that he had been disabled as a result of a stroke suffered on April 20, 1980. He argues that these benefits were denied because of Doctor Ertan’s medical report which stated that Mr. Albert had no localized neurological deficits. Mr. Albert claimed that he was entitled to damages under La.C.C. Art. 2315 which states, “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” He sought $75,000.00 for embarrassment and humiliation, and $75,000.00 for worry and anxiety, a total of $150,000.00.

In order to recover for negligent misrepresentation under Article 2315 of the Louisiana Civil Code there must be a legal duty on the part of the defendant to supply correct information; there must be a breach of that duty; and the breach must have caused damage to the plaintiff. Devore v. Hobart Manufacturing Company, 367 So.2d 836 (La.1979). It is clear that the doctor had the duty to provide correct information to the Social Security Administration at the request of the Disability Determinations Center. The only issues to be addressed involve the breach of that duty and the damages.

Whether or not Doctor Ertan breached his duty to supply correct information would depend on the validity of his medical report which read as follows:

“The cranial nerves are intact. There is no localized neurological deficit. The deep and sensory is normal.”

Mr. Albert claims that the physician did not perform an examination of deep tendon reflexes which was referred to in the report and which would have revealed remnants of the stroke. That test involved tapping the patient on the knee, and according to Mr. Albert, Doctor Ertan did not touch him below the neck. On the other hand, Doctor Ertan, a specialist in internal medicine with a subspecialty in pulmonary diseases, stated that although he did not recall the details of the medical examination of Mr. Albert, he is certain that he performed a neurological examination which revealed no neurological residual or localized deficit. The medical report indicates that the physician’s staff conducted various tests; Doctor Ertan then obtained a medical history from the patient, and thoroughly examined Mr. Albert, concentrating specifically on his cranial nerves, balance, motor functions, and sensory reflexes. The medical report substantiates Doctor Ertan’s evaluation of Mr. Albert.

For further consideration of the validity of Doctor Ertan’s examination, the plaintiff’s conflicting testimony was supplemented with reports of other doctors who examined Mr. Albert after his alleged stroke. Dr. Charles H. Van Oppen, attending physician at the Veterans Administration Hospital who treated plaintiff during the relevant time period, found a mild weakness of the right arm and leg with decreased sensation as evidence of a possible cerebral vasospasm or transient ischemic attack, i.e., a shortage of oxygen supply, but also found that the deep tendon reflexes were physiological and symetrical which indicates that plaintiff probably did not suffer a cerebral vascular attack or stroke. On the other hand, Dr. D.H. Texada, Jr., a neurologist, found that the deep tendon reflexes were increased in the right arm and leg because of a mild cerebral vascular accident or stroke. Another neurologist, Dr. John Olson, stated that a “neurological consultation suggested that the patient had a left middle cerebral artery syndrome.”

According to Dr. Geoffrey Bergman, Mr. Albert’s podiatrist, the patient’s knee brace and the severity of the “patellar reflex” on his right side indicated that he still suffered from the residuals of the stroke. Dr. Douglas L. Gamburg, an orthopedic surgeon, stated, “The spasticity in the right upper and lower extremities are consistent with his history of a stroke.”

The report by Dr. T.E. Banks, another orthopedic surgeon, concluded:

“I see no connection between his diagnosis of a cerebral vasospasm [a temporary vascular spasm resulting in decreased blood circulation to part of the brain] and problems with his right lower extremity except possibly his present status is a residual of that.”

According to Dr. Brian C. McCann, a family practitioner, although Mr. Albert did have some neurological damage, he definitely exaggerated the weakness in his right extremities and attempted to disguise the strength values in his hand.

The trial court found that some of the evidence admitted established that other physicians conduct more thorough physical examinations while searching for neurological problems. The Court further found that Doctor Ertan’s neurological finding did not coincide with the findings of some of the other physicians involved. However, the evidence supports that all of the physicians who examined Mr. Albert rendered varied opinions as to the nature and extent of plaintiff’s neurological problems. Doctor Van Oppen, Doctor Texada, Doctor Olson, and Doctor McCann tested the deep tendon reflexes which Doctor Ertan may or may not have examined. Although all the doctors except Doctor Ertan found neurological deficits or residuals of the alleged stroke, as the trial court stated, “from the evidence presented in this case the Court cannot conclude that defendant’s examination and report amounted to negligence.” The trial court, thus, correctly found no breach of duty since the evidence was insufficient to show that the medical report was false.

In addition to finding no breach of duty the trial court held that the plaintiff was “not damaged in any way by defendant’s acts or omissions.” In his petition Mr. Albert alleged that Doctor Ertan’s report had injured him by encouraging the Social Security Administration to deny him benefits. This denial, however, was not solely due to Doctor Ertan’s medical examination. The Social Security Administration’s report explicitly stated that the refusal of benefits was based on “all medical findings” and that the claimant failed to establish disability.

The trial court further noted that Mr. Albert did not offer any proof of his alleged damages. He did not maintain his burden of proof, nor did he establish a causal connection between defendant’s acts and his injuries with any certainty.

Although we do not necessarily consider this pertinent to the decision, nevertheless the trial court noticed that there was no evidence that Mr. Albert had exhausted all of his appeals from the adverse decision related to this claim for the social security disability benefits.

Since the trial court found no breach of duty and no damages suffered, it dismissed the plaintiffs suit. Findings of no breach of duty and no damages involve factual determinations which will not be disturbed on appeal absent manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Steele v. St. Paul Fire & Marine Insurance Co., 371 So.2d 843 (La.App. 3rd Cir.1979), writ denied, 374 So.2d 658 (La.1979). In this case there was no manifest error. A review of the patient’s testimony and doctors’ reports reveal that there was not sufficient evidence to show that Doctor Ertan had submitted a false medical report or to show that Mr. Albert had been damaged as a result of Doctor Ertan’s actions. The only proof presented pertaining to Doctor Ertan’s alleged negligence was the conflicting medical reports and Mr. Albert’s own self-serving testimony that Doctor Ertan failed to perform an examination of the deep tendon reflexes.

For the above and foregoing reasons the trial court’s decision to dismiss plaintiff’s suit is affirmed. Costs are assessed against plaintiff-appellant, Leroy Albert.

AFFIRMED.


source: Caselaw Access Project

author: YELVERTON, Judge.

license: Public Domain

text:
    AMERICAN WHOLESALE JEWELERS, INC., Plaintiff-Appellant, v. AMERICAN DRUGGIST INSURANCE CO., et al., Defendants-Appellees.
    No. 83-866.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.
    Writ Denied Dec. 17, 1984.

      Privat & Regan, Kenneth 0. Privat, Crowley, for plaintiff-appellant.
    Edwards, Stefanski & Barousse, Homer Edward Barousse, Jr., Crowley, Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Chris G. Robbins, Lafayette, La., for defendant-appellee.
    Before GUIDRY, LABORDE and YEL-YERTON, JJ.
   YELVERTON, Judge.

American Wholesale Jewelers, Inc., victim of a burglary, sought recovery of its loss in a suit in tort against the Acadia Parish Sheriffs Department and South Central Bell Telephone Company. The suit against the sheriff was based on the alleged tortious violation of his duty to respond to a burglar alarm. The suit against the telephone company was based on its alleged tortious interference with the official operation of the sheriffs department by inducing it not to respond to the alarm. The case against the sheriff was tried by the district judge. The case against the telephone company was tried by a jury. Both decisions were against plaintiff and plaintiff appeals. We affirm, finding in each case that plaintiff failed to prove the threshold requirement that defendant’s conduct was a cause in fact of its loss.

The judge and the jury were presented with all the known facts. At some time during the night of February 22, 1981, the business of American Wholesale Jewelers, located just north of the city limits of Crowley, Acadia Parish, Louisiana, was burglarized, the vault was cut open with a torch, and its valuables stolen. The burglars have never been caught or identified, and little is known of how the crime was done except that it was obviously well-planned, with the thieves cutting several telephone cables in Crowley, causing false burglar alarms across the city, and causing the loss of electronic contact between the sheriff’s office and many alarm systems connected to it. The time of night when the actual burglary of plaintiff’s business occurred is unknown; it was not before 9:02 P.M. on February 22, for that was when an alarm from the business appeared on the sounding board at the sheriff’s office, nor was it after 8:00 o’clock A.M. the next day, for that was when its owner discovered that the burglary had occurred.

The plaintiff’s office was equipped with a burglar alarm system which was composed of three major elements: a local alarm at the plaintiff’s premises, a sounding board at the sheriffs department, and a system of cables which connected the local alarm to the sounding board.

The local alarm was controlled by a central box, which triggered an alarm bell at the premises whenever the magnetic contacts were broken on either a door to the inside vault or the entrance doors to the building, or whenever it received a signal from a heat detector or a motion detector inside the building. On receiving a message from any one of these components, the central box in plaintiffs premises not only triggered the alarm bell, it also sent a signal to the sheriff’s office that its alarm had been triggered.

This signal was transmitted to the sounding board at the sheriffs office by means of what is known as a cable pair, leased by plaintiff from South Central Bell. A break in the cable pair itself would register on the sounding board just as the alarm from the central box. The system was designed to send only one alarm to the sounding board before the system was reset.

The sounding board was located under the radio dispatcher’s desk in the sheriff’s office. Provided free for the sheriff’s convenience, it was tied to every business place in Crowley having a burglar alarm system like plaintiff’s. On the first occurrence only of the triggering of the local alarm, or upon an interruption of power, from whatever cause, in the cable pair, the sounding board gave an audible signal and the name of the business lit up.

The sheriff’s office had no official procedure for monitoring the alarm devices but a procedure had evolved by custom. Upon receipt of an alarm signal the radio dispatcher would note the signal in his log, notify the owner of the premises from which the signal emitted, and dispatch a deputy to the scene, usually by radio. The dispatcher’s radio was connected by a telephone cable to an antenna atop the First National Bank of Crowley.

• The sounding board had indicated a problem at the plaintiff’s premises approximately ten times before February 22, 1981. The customary procedure for responding to an alarm was followed by the sheriff’s department in each instance. Each time the plaintiff’s president, Steve Spallino, would go to the business and rearm the system. All prior alarms were false.

The sounding board became active early on the night of the burglary. Between 8:00 and 9:00 P.M. two alarms, one from the First National Bank of Crowley and the other from Barbin’s Novelty Store, were received and logged. Patrol units responded to the radio dispatch to both places of business and reported false alarms.

Shortly after 9:00 P.M. the sheriff’s radio went out. It was soon determined that the problem was not in the radio, but in the telephone transmission lines, and two repairmen from the telephone company arrived at the sheriff’s office. Right after their arrival, the plaintiff’s alarm appeared on the sounding board, followed closely by another from a private residence. As deputies present prepared to respond to these alarms, one of the telephone repairman said, “Do what you have to do, but in our opinion it’s in the phone lines, being that everything is going off”. The deputies sat down.

It was in the phone lines. Later that night the repairman found a severed cable at 14th and Parkerson Streets. At 5th Avenue and Avenue G they found the sheriff’s radio cable completely severed, and they found the sheriff’s telephone cable, the cable that conveys both telephone and burglar alarm signals, partially severed. The following day a hacksaw with a broken blade was found in the bushes nearby.

An American Wholesale employee, when he arrived at 8:00 A.M. the next morning to open up, found the front door to the business jammed. He immediately notified Steve Spallino, the president of the company. Spallino on his arrival discovered the burglary. The thieves had ripped a hole in the side of the building. The control box which supplies power to the local alarm bell was torn from the wall. The door to the vault had been cut open. The telephone cable (cable pair) was severed just outside the building. The telephone cable across the street was severed in two places. Inventory had been stolen.

On these facts the plaintiff contends that defendants owed duties to it which were breached and that the violations were the cause in fact of its loss. We do not reach the question of whether either of the defendants owed a duty to the plaintiff in this instance, because we find that neither the trial court nor the jury were clearly wrong in their determination that the conduct of neither of these defendants was a cause in fact of plaintiff’s loss.

The initial inquiry in any determination of actionable negligence on the part of a defendant is whether any causal relationship existed between the harm to the plaintiff and the defendant’s allegedly negligent conduct. La.Civil Code art. 2315; Hill v. Lundin and Associates, Inc., 260 La. 542, 256 So.2d 620 (1972); Dixie Drive It Yourself System v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962); Ganey v. Beatty, 391 So.2d 545 (La.App. 3rd Cir.1980).

Cause in fact is explained in Dixie Drive It Yourself System, supra, 137 So.2d at page 302, as follows:

“Negligent conduct is a cause-in-fact of harm to another if it was a substantial factor in bringing about that harm.... [T]he negligent conduct is undoubtedly a substantial factor in bringing about the collision if the collision would not have occurred without it. A cause-in-fact is a necessary antecedent. If the collision would have occurred irrespective of the negligence ..., then his negligence was not a substantial factor or cause-in-fact. ...”

And in Ganey v. Beatty, supra, at page 547, it is said:

“To determine cause-in-fact, courts will carefully scrutinize all the evidence, and those acts will be adjudged causes-in-fact when it is found that more probably than not they were necessary ingredients of the accident. Stated otherwise, an act will be deemed a cause-in-fact of an accident only when, viewed in the light of all the evidence, it is concluded that it is a substantial factor without which the accident would not have happened.”

The plaintiff in this case bore a heavy burden of proof. In order to prevail, he had to prove that had the deputies responded to the alarm, the burglary would not have occurred. Proof of the time of the burglary was practically essential to establishing cause in fact. The plaintiff could not prove the time. Because of the proliferation of false alarms throughout the city, the cause at first unsuspectingly being attributed to some innocent problem “in the line” and not human intervention, it is unlikely that an investigation or notice to the owner would have prevented the burglary. It appears that this was a carefully planned burglary, with the likelihood that the burglars cut telephone cables either to prevent alarms or set off false ones and create mass confusion, and that they then lay in wait until the crime could be accomplished in safety. If indeed this was the way the burglary was done, there is no telling at what time of the night it actually occurred. Even assuming that a duty was owed by either defendant, as alleged, what is lacking in the proof is a relationship between the response to the alarm and prevention of the burglary. For us to find that relationship on these facts would require too much speculation as to what may have happened after a response was made to the alarm, and too many assumptions that cannot be reasonably inferred from the facts — for example, we would have to assume that the burglary would have been in progress at exactly the time the deputies went to investigate or, if not, that the owner, knowing of the numerous false alarms going off in the city, would nevertheless have taken the precaution to stay on guard throughout the night, or that the deliberate cutting of the cable pairs was discovered before the burglary actually took place. We are not justified in making these assumptions; we would be equally justified on the facts to assume that the burglars lay in wait until it was safe, and that the sheriff, had he immediately responded to the call, would have seen nothing untoward and, remembering the history of false alarms, and thinking that this, too, was a false alarm, would have gone back to his office without notifying the owner, or that the owner, had he been notified, upon arriving at his business and discovering nothing amiss, and being aware of the false alarms throughout the city, his apprehensions allayed, would have gone back home to bed, leaving the place, its alarms dead, unprotected. In short, the nature of the case leaves too many possibilities for us to say that either the trial judge or the jury was clearly wrong in failing to attribute to a mere possibility the characterization that it was more probable than not. For these reasons we agree with the triers of fact that the plaintiff has failed to prove cause in fact.

Besides the question of the defendant’s duty which, for the reasons we have earlier explained, we pretermit in favor of our determination that the plaintiff has failed to meet the threshold requirement of proof of cause in fact, plaintiff has argued other issues concerning alleged procedural errors made by the trial court. Since we find that a ruling favorable to plaintiff on appeal on these issues would not alter the outcome of the case, we find it unnecessary to discuss these remaining issues.

For the foregoing reasons, the judgment of the trial court is affirmed, with appellant to pay the costs both in the trial court and on appeal.

AFFIRMED.


author: DOUCET, Judge.

text:
    Willie Mae SMITH, Plaintiff-Appellee, v. UNION UNDERWEAR, INC., d/b/a Jeanerette Mills, et al., Defendant-Appellant.
    No. 83-869.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.

      Voorhies & Labbe, John N. Chappuis, Lafayette, for defendant-appellant.
    Anthony W. Skidmore, New Orleans, for plaintiff-appellee.
    Before DOMENGEAUX, CUTRER and DOUCET, JJ.
   DOUCET, Judge.

Willie Mae Smith, plaintiff-appellee, brought this suit against Union Underwear, Inc., defendant-appellant, seeking workmen’s compensation benefits. The trial court awarded Mrs. Smith compensation benefits for a permanent and total disability. Union Underwear, Inc. perfected this appeal.

Mrs. Smith was an examiner of underwear briefs for Union Underwear, Inc. at their Jeanerette, Louisiana facility. This position entails inspecting newly manufactured underwear briefs for sewing defects and when defects are detected, to return the briefs to the sewers for repairs. On February 28, 1980, while performing this task, the plaintiff stooped down and hit her knee against a desk. The impact and location of the blow caused an injury to Mrs. Smith’s right knee. Mrs. Smith tried to continue working but was unable to complete the workday because of increasing pain in her knee.

On March 1, 1980 the plaintiff visited Dr. James Falterman, who is her family physician, with complaints of swelling and increasing pain on her right knee. Dr. Fal-terman prescribed pain medication and rest. During the course of several subsequent visits Dr. Falterman detected no improvement in the condition of the knee so he referred the plaintiff to Dr. Fletcher Sutton, who is an orthopedic surgeon in New Iberia, La. After several visits, Dr. Sutton performed exploratory surgery on March 18, 1980. The surgery revealed some internal bleeding and inflammation, but no ligament or cartilage damage was detected. Dr. Sutton monitored Mrs. Smith’s recovery and by July 5, 1980 he was satisfied that Mrs. Smith could return to her job if she could sit down while she worked. Mrs. Smith then consulted Dr. Louis Blanda, who is an orthopedic surgeon in Lafayette, La. During the course of several visits Dr. Blanda observed some swelling of the knee but was unable to conclude on a satisfactory diagnosis. More exploratory surgery was recommended but it was never effected.

Mrs. Smith returned to work on July 5, 1980 as an examiner of underwear briefs and was then dismissed on January 15, 1981 for excessive absences. Mrs. Smith sought workmen’s compensation benefit^ from Union Underwear, Inc. and this lawsuit ensued.

At the trial the, medical evidence consisted of the depositions of Dr. Sutton, Dr. Blanda, and Dr. Falterman. Dr. Sutton testified that Mrs. Smith’s recovery was completely satisfactory and that the plaintiff should have been able to return to work in an unrestricted fashion in spite of the fact that the knee would never be exactly the same. Dr. Sutton also said that Mrs. Smith never complained of severe pain when he was monitoring her recovery from the exploratory surgery. Dr. Blanda testified that he was unable to ascertain the precise reason for Mrs. Smith’s painful condition but was satisfied that her complaints were sincere. Dr. Blanda pointed out that he could not competently state whether Mrs. Smith could return to work because he was not familiar with the details of her job. Dr. Falterman testified that he could not diagnose the reason for Mrs. Smith’s pain in her knee but that throughout his consultation with the plaintiff through November of 1981 he was satisfied with the sincerity of her complaints.

The lay testimony began with three of Mrs. Smith’s co-employees who remarked that the plaintiff rarely complained of pain on the job and was in fact the plant’s most productive examiner until her job was terminated. Mrs. Smith’s daughter testified that Mrs. Smith could no longer engage in household chores and had to spend most of her time in a resting or sitting position. Finally, the plaintiff testified that her return to work after July 5, 1980 was very difficult because of the extreme pain that she suffered in her knee. She added that she had lost confidence in Dr. Sutton and so she ceased to be open and frank with him. Mrs. Smith said that this was why she sought the opinion of Dr. Blanda.

The trial court concluded that Mrs. Smith suffers from pain that is so substantial that it precludes her from returning to her previous occupation and also from engaging in gainful employment for which she is qualified, thereby qualifying the plaintiff for odd-lot status. As an odd-lot worker the trial judge awarded the plaintiff workmen’s compensation benefits for a permanent and total disability pursuant to L.S. A.-R.S. 23:1221(2). The issues on this appeal are whether the trial court was clearly wrong in its factual conclusion concerning the degree of pain from which Mrs. Smith suffers and whether this disability is total and permanent.

The appellant contends that the trial court was clearly wrong in failing to give appropriate weight to the testimony of Dr. Sutton who was the operating and treating orthopedic surgeon as well as Dr. Blanda who was the subsequent examining orthopedic physician, and instead based his factual conclusions on the testimony of the plaintiff and her daughter. Appellant urges us to disregard the testimony of Dr. Falterman and the plaintiff because it is contradicted by the testimony of a treating specialist. It is asserted by the plaintiff that if the evidence is evaluated in this fashion, then a conclusion that Mrs. Smith suffers from substantial pain must be clearly wrong.

The issue of pain experienced by a claimant seeking compensation benefits is a question of fact to be resolved by the trier of fact. Newell v. United States Fidelity and Guaranty Company, 368 So.2d 1158 (La.App. 3rd Cir.1979). As the trier of fact in this case, the trial court decided that the medical evidence was not disposi-tive on the issue of pain, and chose instead to rely on the testimony of the plaintiff that was somewhat corroborated by the claimant’s daughter and Dr. Falterman. Furthermore, the record reveals that no examining physician in this case doubted the sincerity of the plaintiff’s complaints of pain in her knee which further corroborates the plaintiff’s testimony. When the factual issue is the severity of pain suffered by the claimant, the trial court’s conclusions must be based on its evaluation of the claimant’s testimony because, in the final analysis, the plaintiff is the only one capable of describing his pain. Kraemer v. Louisiana Power and Light Co., 393 So.2d 346 (La.App. 1st Cir.1980). Therefore the trial court was justified in placing greater weight on the plaintiff’s testimony rather than relying on the medical evidence of Dr. Sutton. This factual conclusion that Mrs. Smith suffers substantial pain which prevents her from working as an examiner of underwear briefs is not clearly wrong and therefore will not be disturbed on appeal. Crump v. Hartford Accident and Indemnity Company, 367 So.2d 300 (La.1979).

The remaining question is whether the plaintiff is entitled to benefits for a total and permanent disability. At this point, it is necessary to make a vital distinction between two bases for being determined as totally and permanently disabled. The first type of total and permanent disability is caused by pain that is so substantial that the claimant is precluded from engaging in any type of work whatsoever. Dusang v. Henry C. Beck Builders, Inc., 389 So.2d 367 (La.1980). The standard in Dusang that warrants such a finding is that the pain cannot be residual or merely a discomfort but, on the other hand, the plaintiff need not be helpless in order to qualify for total disability. It is established that Mrs. Smith is suffering from pain that is so substantial that she cannot return to her former occupation as an examiner of underwear briefs. But Mrs. Smith is physically capable of a job that is purely sedentary in nature. When a claimant can work in some type of job without experiencing substantial pain then she is only partially disabled even though she cannot return to her former occupation. Conlay v. Houston General Insurance Co., 370 So.2d 196 (La.App. 3rd Cir.1979). Therefore Mrs. Smith does not qualify for this first type of total and permanent disability and its compensation benefits.

The second ground for entitling a claimant to benefits for a total and permanent disability is his qualification as an odd-lot worker. If a claimant’s pain appreciably limits the types of work available to him and greatly diminishes his ability to compete in the labor market he can be treated as an odd-lot worker and be awarded total disability unless there is proof that jobs are realistically available to him. Culp v. Belden Corp., 432 So.2d 847 (La.1983). It is established that Mrs. Smith cannot return to her former occupation. The inquiry is then directed to other types of employment that the plaintiff could perform. The only type of work available to Mrs. Smith is that which is purely sedentary. But most sedentary work requires a certain level of training or education. Mrs. Smith has a limited education, narrow work experience and is advanced in age. These factors compound her disability to make her a particularly undesirable employee to be hired full time and therefore severely hinders her ability to viably compete in today’s market with its emphasis on training and specialization and its vulnerability to economic cycles. This combination of traits qualify Mrs. Smith as an odd-lot worker. Dusang supra. Therefore Mrs. Smith is entitled to compensation benefits for a total and permanent disability pursuant to LSA-R.S. 23:1221(2) unless the defendant can satisfactorily prove that some type of work is available to the plaintiff on a regular basis. Comeaux v. Cameron Offshore Services, Inc., 420 So.2d 1209 (La.App. 3rd Cir.1982).

The defendant suggested only one type of work for which Mrs. Smith may be qualified to perform which was to work as a cosmetologist. Mrs. Smith is legally qualified to be a cosmetologist because she has a license but she is physically unable to do the work because it requires long periods of standing that would aggravate her knee injury. The trial court was correct in classifying Mrs. Smith as an odd-lot worker and awarding her benefits for a total and permanent disability.

For the above and foregoing reasons the trial court’s judgment is affirmed. Costs of this are assessed to the defendant-appellant.

AFFIRMED.


author: GUIDRY, Judge.

text:
    Verna Ann KENNERSON, Plaintiff-Appellee, v. Aaron J. MALVEAUX, Jr., Defendant-Appellant.
    No. 83-870.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.

      Wilford D. Carter, Lake Charles, for defendant-appellant.
    Raggio, Cappel, Chozen & Berniard, Stephen J. Berniard, Jr., Lake Charles, for plaintiff-appellee.
    Before GUIDRY, LABORDE and YEL-VERTON, JJ.
   GUIDRY, Judge.

On January 31, 1983, Verna Ann Kenner-son filed a petition for child support against Aaron J. Malveaux, Jr. alleging that he is the biological father of the minor child, Joshua D. Malveaux, and that he had formally and informally acknowledged paternity of the child. Plaintiff entered a preliminary default which was confirmed on March 23, 1983. The judgment fixing child support in the amount of $350.00 per month was signed, on March 28, 1983. Mal-veaux took a devolutive appeal from the judgment of March 28, 1983 but voluntarily abandoned that appeal.

On May 13, 1983, Ms. Kennerson brought a rule for contempt and to make the judgment for child support executory against Aaron J. Malveaux, Jr. On June 6, 1983, defendant answered and reconvened, seeking by rule to show cause a declaration of nullity of the child support judgment sought to be made executory. In response to the reconventional demand, plaintiff filed a dilatory exception of unauthorized use of summary proceedings. On June 22, 1983, after hearing, the trial court sustained plaintiff’s exception and dismissed plaintiff-in-reconvention’s action for nullity. Further, on its own motion, the trial court recognized that defendant’s reconventional demand stated a cause of action for reduction of the child support award of March 28, 1983. The trial court then proceeded to conduct consolidated hearings on plaintiff’s rules for contempt and to make child support payments executory and on defendant’s rule for reduction of child support. Thereafter, judgment was rendered in favor of plaintiff and against defendant for accrued child support in the amount of $1,050.00 plus attorney’s fees. Further, there was judgment finding defendant in contempt. Accordingly, he was sentenced to serve 15 days in the parish jail with the sentence being suspended for 90 days within which time defendant might pay the $1,050.00 and purge himself of contempt. On the reconventional demand, the trial judge rendered judgment in favor of plaintiff-in-reconvention and against defendant-in-reconvention, reducing the award for child support from $350.00 a month to $250.00 per month. This judgment was signed on July 14, 1983.

On July 26, 1983, defendant took a devol-utive appeal from the judgment signed July 14, 1983, seeking a further reduction in the child support award. Plaintiff has neither appealed nor answered defendant’s appeal.

The only issue before us on appeal is whether the trial judge abused his considerable discretion in failing to further reduce the child support award.

Defendant claims that the trial judge erred in granting the $250.00 monthly child support award contending that the plaintiff (defendant-in-reconvention) failed to establish at the hearing held June 22, 1983, that the child was in need of support.

The child’s need of support was established in the proceedings leading to the judgment of March 28,1983. There was no necessity for a further showing of need by defendant in reconvention at the hearing on June 22, 1983. The party requesting a modification of a support award bears the burden of proving a change in the circumstances of one or more of the parties. At the June hearing plaintiff-in-reconvention failed to establish any change in the child’s circumstances. As to Malveaux’s circumstances, the record reflects that during the years 1980 and 1981 he worked for a transmission repair shop and earned gross wages of $26,360.00 in 1980 and gross wages of $21,632.00 in 1981. In the latter part of 1981, he opened his own transmission repair shop and admitted on cross examination that since going into business for himself his gross income has been greater. Malveaux also testified that the monthly living expenses for himself and his wife and child exceed his monthly net income. On the basis of this evidence the trial court reduced the child support award from $350.00 monthly to $250.00 monthly.

A trial court is possessed of considerable discretion in fixing or modifying child support awards. Such awards will not be disturbed on appeal except for a clear showing of an abuse of discretion. Dupuy v. Dupuy, 421 So.2d 458 (La.App. 3rd Cir.1982); Baer v. Simon, 334 So.2d 796 (La.App. 3rd Cir.1976). Our careful review of the record reveals no abuse of discretion in the instant case.

For the above and foregoing reasons, the judgment of the trial court is affirmed. Costs are assessed against defendant-appellant, Aaron Malveaux, Jr.

AFFIRMED.


author: LABORDE, Judge.

text:
    Barbara COMEAUX, Plaintiff-Appellant, v. MARTIN MILLS, INC., Defendant-Appellee.
    No. 83-877.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.

      John L. Olivier of Olivier & Brinkhaus, Sunset, for plaintiff-appellant.
    Yoorhies & Labbe, John N. Chappuis, Lafayette, Gibbens & Blackwell, Dennis Stevens, New Iberia, for defendant-appel-lee.
    Before GUIDRY, LABORDE and YEL-VERTON, JJ.
   LABORDE, Judge.

Plaintiff, Barbara Comeaux, seeks workers’ compensation benefits, statutory penalties, interest, attorney fees, medical expenses and costs from defendant, Martin Mills, Inc. She alleges that she is totally and permanently disabled as a result of two work-related accidents. The trial court found that the plaintiff failed to show that there was a causal connection between the alleged accidents and any disabling condition. From that judgment, plaintiff perfects this appeal. We affirm.

Plaintiff appeals, contending that while employed by defendant as a seamstress, on July 14, 1978, she injured her back lifting a bundle of clothes. She further alleges that she subsequently aggravated this injury by the same activity on January 12, 1979.

In a workers’ compensation case, the employee must establish the causal connection between the disability and employment accident by a reasonable preponderance of the evidence. Hammond v. Fidelity and Cas. Co. Of New York, 419 So.2d 829 (La.1982). On the basis of the lay and medical testimony, the trial court found no causal connection in this instance. On appellate review, the trial court’s factual findings on the question of work causation are entitled to great weight and should not be reversed unless clearly wrong. Crump v. Hartford Acc. & Indem. Co., 367 So.2d 300 (La.1979). A review of the record reveals no error.

Neither lay nor medical testimony presented supports the plaintiff’s argument that the work-related accidents have caused any disability. The discussion and analysis of the medical testimony by the trial court was thorough and, thus, we adopt the following excerpt as our own:

“Plaintiff saw Dr. Irvin C. Lister, a chiropractor, on January 12, 1979. She complained of back pain and Dr. Lister prescribed diathermy and traction. He administered in excess of fifty such treatments, and released her on April 30, 1979. There is some confusion in Dr. Lister’s records concerning the date of injury, as it was first recorded as July 14,1978 and later changed to January 12, 1979.”
“Plaintiff saw Dr. Stephen Goldware, a neurologist, on August 21, 1979, complaining of lower back pain. Dr. Gold-ware found no objective signs of injury and concluded that plaintiff’s pain was the result of her being overweight and out of shape. In an effort to remedy this, Dr. Goldware prescribed physical therapy and exercise. His records reflect that the accident occurred on January 12, 1979.”
“Dr. J. Frazer Gaar, an orthopedic surgeon, examined plaintiff on October 16, 1979. She complained to him of lower back pain and stiffness resulting from an accident in January of 1979. Dr. Gaar found no objective reason for plaintiff’s complaints and released her to return to her former employment.”
“Dr. John Guidry, a general practitioner, is plaintiff’s family physician. He treated plaintiff during a pregnancy from February 4, 1980 through September 16, 1980. He reported that plaintiff weighed 208 pounds on February 22, 1980 and reached 237 pounds just prior to delivery. Only once during the entire pregnancy did plaintiff complain of back pain. Dr. Guidry saw plaintiff on seven additional occasions between October of 1980 and January of 1982. At no time during any of these visits did plaintiff complain of back pain.”
“Dr. Kenneth Adatto, an orthopedic surgeon, first examined plaintiff on February 3, 1981. She informed him that she had injured herself on July 14, 1978 and again on January 12, 1979. However, plaintiff did not tell Dr. Adatoo [sic] about her pregnancy. After testing plaintiff, Dr. Adatto performed a lami-nectomy on March 24, 1981. He could not unequivocably relate the operation or plaintiffs complaints to the alleged injury of January 14 [12? ], 1979. He assigned a ten to fifteen percent residual disability of the spine and suggested that plaintiff not get a job requiring repetitive lifting of objects in excess of twenty-five to fifty pounds. The evidence preponderates that the lifting requirements of plaintiffs job at Martin Mills falls well within this permissable [sic] range.”

As noted in the trial court reasons, none of the doctors conclusively stated that any disability was caused by a work-related accident.

The lay testimony did not support the plaintiffs contention, and the trial judge did not find the plaintiffs testimony to be credible. The trial judge’s evaluation of credibility will not be disturbed on appeal absent manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). A review of the record reveals no error.

The record further reveals that the lay testimony was not convincing and contained several discrepancies. Although the plaintiff claims she injured her back on July 14, 1978 and January 12, 1979, at the trial she testified that she merely pulled a muscle on July 14, 1978 and incurred the “real” injury on January 12, 1979.

In his reasons for judgment, the trial judge noted:

“A most telling discrepancy in her testimony was plaintiffs statement that she was almost constantly in pain. Aside from failing to mention this to certain of her treating physicians, this testimony is directly contradicted by the testimony of her husband who stated that her complaints were made ‘every so. often’, about every three to six months.”

The plaintiff was also inconsistent in reporting the date of the injury. Dr. Gold-ware’s and Dr. Adatto’s records reflect that the accident occurred on January 12, 1979. In Dr. Lister’s records, however, the. date of the injury was first entered as July 14, 1978 and later changed to January 12, 1979.

We hold that the plaintiff failed to prove by a preponderance of the evidence that any disability was caused by a work-related accident. She is, therefore, not entitled to workers’ compensation benefits.

For the above and foregoing reasons, the trial court judgment is affirmed. Costs are assessed against plaintiff-appellant, Barbara Comeaux.

AFFIRMED.


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    COMMERCIAL UNION INSURANCE COMPANY, Plaintiff-Appellant, v. RYLAND DODGE & CHRYSLER, INC., Defendant-Appellee.
    No. 83-881.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.

      Trimble, Percy, Smith, Wilson, Foote & Walker, Elizabeth E. Foote, Alexandria, for plaintiff-appellant.
    G. Thomas Arbour, of Glusman, Moore & Wilkinson, Baton Rouge, for defendant-ap-pellee.
    Before DOMENGEAUX, CUTRER and DOUCET, JJ.
   DOMENGEAUX, Judge.

This is an action in redhibition by Commercial Union Insurance Company to rescind the sale of an automobile purchased from defendant-appellee, Ryland Dodge & Chrysler, Inc. Commercial Union brought this action as a subrogee of the rights of its insured, the owner of the automobile at issue. The trial court denied recovery and we affirm.

On February 11, 1982, June Armand purchased a 1978 Mercury Marquis from Ry-land Dodge & Chrysler, Inc. On February 14, 1982, while she was driving the vehicle, a fire started under the hood and the vehicle burned to the point of rendering it a total loss. At the time of the accident, Commercial Union was Ms. Armand’s collision insurer and paid her the sum of $3,500.00 for the loss of her vehicle. After trial on the merits, the Court ruled in favor of the defendant, stating that Commercial Union failed to allege and prove a special defect of any kind in the car which could be causally related to the fire. Neither the total loss of the vehicle nor Commercial Union’s right to subrogate were in dispute.

On appeal, Commercial Union advances three trial court errors. Since we are convinced that plaintiff failed to carry its burden of proof as required by La.C.C. Art. 2520, et seq., we will address only that assignment of error.

The applicable law regarding action in redhibition and vices of things sold is found in Section 3 of the Louisiana Civil Code beginning with Article 2520 which defines redhibition.

“Art. 2520. Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.”

The application of Article 2520 is limited by Article 2530 which provides:

“Art. 2530. The buyer who institutes the redhibitory action, must prove that the vice existed before the sale was made to him. If the vice has made its appearance within three days immediately following the sale, it is presumed to have existed before the sale.”

It is stated in Crawford v. Abbott Automobile Company, Ltd., 157 La. 59, 101 So. 871 (1924) that:

“It is not incumbent upon the buyer to seek out, allege, and prove the particular and underlying cause of the defects which make the thing sold unfit for the purpose intended, particularly when the thing is a complicated piece of machinery; but it suffices if he alleges and afterwards proves as a fact that such defects exist.”

It is well settled that a plaintiff need not prove the underlying cause of the defect but it is incumbent that he does prove the existence of a defect at the time of the sale. La.C.C. Art. 2530 and Edelman Systems, Inc. v. Capitol GMC, Inc., 345 So.2d 99 (La.App. 1st Cir.1977), writ denied, 347 So.2d 250 (La.1977).

Because the burden is on the plaintiff initially to establish a prima facie case, the failure to establish such a case defeats his cause of action. The burden does not shift to the defendant until a prima facie case has been established by the plaintiff by a preponderance of the evidence. Jordan v. Security Company, 425 So.2d 333 (La.App. 3rd Cir.1982).

We hold that Commercial Union did not establish a prima facie case of a redhi-bitory defect and thus his cause of action is defeated. As pointed out by the trial judge in his ruling:

“... there’s no question that the car burned and there’s no question that the owner was using it for her own affairs and the car certainly looked to be all right to everybody concerned, the dealer as well as the buyer and other people who had ridden in it. The problem here is that the plaintiff has some duty to suggest the cause of the fire, some defect, latent or obvious. The cause of this fire is completely unknown. It could have been a fire bomb put in there. I don’t know. Neither does the lady who owned the car, to be honest with you. But, no defect of any kind has been suggested or proved by the plaintiff. The fire itself is not a defect. It certainly is a disaster. The fact that it was caused by a defect is possible, but none was proved. If you have a car that’s losing oil, this is a tipoff that something is wrong. There’s a defect. It may later cause a wreck or cause a total loss. The same thing with brake fluid. But, in this case there was nothing which suggests any defect of the vehicle itself. So, I’ll give judgment to the plaintiff, excuse, me, judgment for the defendant.”

A vice or defect as used in Article 2520 contemplates a physical imperfection or deformity: A lacking of necessary components or level of quality. Williams v. Louisiana Machinery Company, Inc., 387 So.2d 8 (La.App. 3rd Cir.1980). No such physical imperfection has been shown in this case. The testimony of Ms. Armand merely establishes that the automobile was destroyed by fire. Within the factual context of this case inferences other than that the car is defective may be drawn. For example, vandalism as pointed out by the trial judge.

A plaintiff need not introduce expert testimony to prove a defective product. Crawford v. Abbott Automobile Company, supra. However, he must at least allege and prove more than the fact that the product has been destroyed. To allow Commercial Union to establish a pri-ma facie case on the evidence produced here places an undue burden on the seller who has no personal knowledge as to the acts proceeding the malfunction.

It is true as pointed out by the plaintiff that in cases such as here Louisiana Civil Code Article 2530 provides that if the vice appears within three days after the sale it is presumed to have existed before the sale. But here no vice has been proven to have manifested itself at any point. All that has been proven is that the automobile has been destroyed by fire, whether by some vice or another intervening source. Hence, we find the proof offered was insufficient to sustain plaintiffs burden of proof that a redhibitory defect existed at the time of the sale.

For the foregoing reasons the judgment of the trial is affirmed. All costs of this appeal are assessed against the plaintiff, Commercial Union.

AFFIRMED.


text:
    Elwade MANUEL, et al., Plaintiffs-Appellants, v. Percy J. FONTENOT, Defendant-Appellee.
    No. 83-882.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.

      Donald Soileau, Mamou, for plaintiffs-appellants.
    Fruge & Vidrine, Jack C. Fruge, Sr., Ville Platte, for defendant-appellee.
    Before DOMENGEAUX, CUTRER and DOUCET, JJ.
   DOUCET, Judge.

Mr. Elwade Manuel and Mr. Robert Spears, plaintiffs-appellants, instituted this suit seeking to have a road in Evangeline Parish declared as public and to have Mr. Percy Fontenot, defendant-appellee, enjoined from interfering with their use of the road in question. The trial court held that the road is private property and the plaintiffs-appellants perfected this appeal.

The plaintiffs-appellants seek to have a horseshoe-shaped road on property formerly belonging to Evangeline Academy, Inc., a non-profit corporation organized to operate and maintain a private school, and now belonging to defendant-appellee, declared a public road. On September 30, 1969, Mr. Fontenot donated a ten-acre tract in Evangeline Parish that faced Louisiana Highway No. 376 on its eastern boundary to Evangeline Academy, Inc. The donation contained a resolutory condition which reads as follows:

“The said Percy J. Fontenot, donor, declared that this donation is made for the purpose and sole consideration of the erection of a private school on said property by the Evangeline Academy, Incorporated, and it hereby understood and agreed between the parties hereto that the said property herein donated is to be used exclusively for the construction and operation of a private school by said Corporation, and that should said Evangeline Academy, Incorporated cease to maintain and operate said private school on said property, for a period of one year, then in that event, the property herein donated shall revert back immediately with full rights of possession to the donor, Percy J. Fontenot, his heirs or assigns, free from all encumbrances whatsoever, without the necessity of putting donee in default. It is further understood and agreed by and between the parties hereto that this donation is made specifically and exclusively to Evangeline Academy, Incorporated, and not to any of its successors or assigns. Upon non-fulfillment of the stipulations and conditions herein-above set forth, and the property reverting to the donor herein as a result of said non-performance or non-fulfillment of said stipulations and conditions, donee obligates itself to remove, without cost whatsoever to donor, all buildings and concrete forms or foundations placed on the property herein donated.”

In short, the donation contained the resolu-tory condition that if the donee ceased to operate and maintain the school for a period of one year, the property donated would revert back to Mr. Fontenot free and clear of all encumbrances and in the condition it was in when originally donated. A plat of survey prepared by the defendant was attached to the donation and properly filed.

After acquiring the property, the donee sought aid from the State of Louisiana for the construction of a road which was to encompass the school buildings being constructed on the premises. In order to secure this aid the donee granted a right of passage to the Evangeline Parish Police Jury who then requested aid from the State in constructing a road. A horseshoe-shaped road was constructed which had two entrances on to Louisiana Highway No. 376 which sits on the eastern boundary of the tract. The road extended to the western boundary of the tract, thereby encircling the entire tract. This road was not built in conformity with the plat filed with the donation as it was entirely on the tract and not partially on adjacent property belonging to Mr. Fontenot as the plat survey indicated. The horseshoe road is the subject of this lawsuit. The record indicates that this road was used exclusively for school business and was never used nor maintained by the Evangeline Parish Police Jury.

On January 9,1975, Mr. Fontenot sold an additional parcel of property consisting of 5.07 acres to the Academy. The tract was adjacent to the western boundary of the original ten-acre tract which was donated. In the Fall of 1979 the donee ceased to maintain and operate the school, thereby effecting the reversion of the donation back to Mr. Fontenot in the Fall of 1980 pursuant to the terms of the donation. But on January 10, 1980, the plaintiffs herein, Mr. Manuel and Mr. Spears, who were the secretary and president of the Academy respectively, purchased the other five-acre tract from the Academy. After regaining the donated property in the Fall of 1980, Mr. Fontenot completely enclosed the ten-acre tract with a fence thereby preventing the plaintiffs from using the horseshoe road for access to La. Highway Number 376 rendering the five-acre tract inaccessible to a public road. The plaintiffs then filed this suit to have the horseshoe drive declared a public road and the status of this road constitutes the issue on this appeal.

The plaintiffs-appellants argue that by filing a plat survey in the public records, Mr. Fontenot dedicated for public use whatever roads that were eventually constructed on the donated property. Such a dedication if legally effective irrevocably divests the owner of the surveyed land of the property on which roads are constructed by the State. Deville v. Oakdale, 180 So.2d 556 (La.App. 3rd Cir.1965). On this basis the appellants contend that the horseshoe road is a public road dedicated for public use. This transaction however, was a donation and not a sale of a subdivision, therefor no statutory dedication ever took place. Only when a plat is recorded pursuant to the sale of property is land described within the plat dedicated for public use. Life v. Griffith, 197 So. 646 (La.App. 2nd Cir.1940). The plat was attached to the donation only to make clear the land comprising the donation, thus no public dedication took place, and the horseshoe road is not a public road on this basis.

The law governing the disposition of this case is found in La.C.C. arts. 1468, 1559, and 1568. La.C.C. art. 1468 describes a Donation Inter Vivos as a donation between living persons in which the donor irrevocably divests himself of ownership. Mr. Fontenot’s donation to the Academy was such a donation. However, pursuant to La.C.C. art. 1559 there was a stipulation for revocation. The third exception to the irrevocability of donation inter vivos outlined in art. 1559 authorizes revocation when the donee ceases in his performance of a resolutory condition imposed on the donation of the donor. Mr. Fonte-not stipulated that if the donee stopped operating the school for one year then the donated property would revert back to him in full ownership. In the Fall of 1980 the school had not been in operation, therefore by operation of the terms of the donation, the ten-acre tract reverted back to Mr. Fon-tenot in full ownership. Finally the resolu-tory condition provided that the property would return to Mr. Fontenot free and clear of all encumbrances. This provision enunciated the rule of La.C.C. art. 1568 which provides that donated property returns free and clear of all encumbrances when the donee ceases to perform the condition imposed on the donation.- Therefore the right of way granted to the Evangeline Police Jury by the Academy on the ten-acre tract ceased to exist when the tract reverted back to Mr. Fontenot. Mr. Fontenot is in complete ownership of the tract including any roads thereon. The horseshoe road is private property and not a public road.

For the foregoing reasons the judgment of the trial court is affirmed. Costs of this appeal are to be borne by the plaintiffs-appellants.

AFFIRMED.

      .Art. 1468. Donation inter vivos, definition
      Art. 1468. A donation inter vivos (between living persons) is an act by which the donor divests himself, at present and irrevocably, of the thing given, in favor of the donee who accepts it.
      Art. 1559. Causes for revocation or dissolution
      Art. 1559. Donation [Donations] inter vi-vos are liable to be revoked or dissolved on account of the following causes:
      1. The. ingratitude of the donee;
      2. The non-fulfillment of the eventual conditions, which suspend their consummation;
      3. The non-performance of the conditions imposed on the donee;
      4.The legal or conventional return.
      Art. 1568. Revocation or rescission for non-execution of condition, return of property free from encumbrances by donee
      Art. 1568. In case of revocation or rescission on account of the non-execution of the conditions, the property shall return to the donor free from all incumbrances or mortgages created by the donee, and the donor shall have, against any other persons possessing the immovable property given, all the rights that he would have against the donee himself.


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    James Allen ROSHTO, Plaintiff-Appellant, v. WAUSAU INSURANCE COMPANIES, et al., Defendants-Appellees.
    No. 83-887.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.
    Writ Denied Nov. 26, 1984.
    William M. Wolfe, Pineville, for plaintiff-appellant.
    Gist, Methvin, Hughes & Munsterman, David A. Hughes, Alexandria, for defendants-appellees.
    Before GUIDRY, LABORDE and YEL-VERTON, JJ.
   YELVERTON, Judge.

James Allen Roshto appeals the district court’s dismissal of his claim for worker’s compensation benefits against appellees, Wausau Insurance Company and James Salley, Inc. d/b/a Salley’s Food Stores. The dismissal of the claim was based on a finding that Roshto did not prove by a preponderance of the evidence that a work-related accident caused an injury.

The findings of fact of a trial court in a worker’s compensation case will not be disturbed unless manifestly erroneous. Harris v. Louisiana-Pacific Gory., 420 So.2d 1220 (La.App. 3rd Cir.1982). A review of the record reveals that the trial court was clearly right.

The correctness of the trial court’s decision is evident in its thorough reasons for judgment which will be adopted in part as follows:

“... While working as a butcher in the grocery store of the defendant, James W. Salley, Inc., a number of cases of chickens stacked on a table fell on plaintiff’s shoulder. Plaintiff contends his injury aggravated pre-existing arthritis in the cervical ver-tabrae and/or caused a herniated disc which pinches a nerve in his neck and causes him to be permanently and totally disabled. Defendant contends plaintiff failed to prove the accident or any disability causally related thereto.

“The issues are:

(1) Did plaintiff prove the accident and injury?
(2) If the accident and injury were proved, did plaintiff prove that he suffered a disability caused thereby?
(3) Is defendant liable for penalties and attorney’s fees?

“The evidence shows that the plaintiff, now approximately 47 years of age, had worked as a butcher for Salley for many years. On September 30, 1982, he was the meat market manager at Salley’s store on Jackson Street Extension in Alexandria. A number of cases of chickens were stacked on an aluminum table ,in the cooler in preparation for a sale the following weekend. Plaintiff testified the cases of chickens were stacked 7 or 8 high. This was denied by the two (2) employees of Sanderson Farms who delivered the chickens.

“Roshto testified that after the other three market employees had left the store on the evening of September 30, 1982, he went into the cooler room and while attempting to remove a case of chickens from the stack, a leg on the aluminum table collapsed causing the stack of cases to fall on his shoulder and knock him across a buggy against a wall. He was alone at the time. There were no other witnesses to the accident.

“Plaintiff testified he suffered no great immediate pain, but that after a few minutes he did go to the front of the store and report the accident to the assistant store manager, Gerald Crise. Mr. Crise denied Roshto reported the accident on that evening.

“The next morning, October 1, 1982, Roshto did report to both Crise and the store manager, James W. Salley, Jr., that some boxes of chickens had fallen on him in the cooler the previous evening. Both Crise and Salley testified that they asked plaintiff whether he had received an injury which required medical attention and that plaintiff stated that he did not need to see a doctor.

“Plaintiff continued to perform all of his duties as a butcher until he was either fired or quit on October 22, 1982. Roshto testified that during this period of time he was unable to perform all of his duties and required the assistance of some other employees in the store. However, three of his co-employees and Mr. Crise and Mr. Salley testified that plaintiff performed all of his duties, including lifting heavy pieces of meat. The three co-employees stated that although plaintiff had mentioned to them that some chickens had fallen on him in the cooler, he appeared to perform all of his normal duties and they were not aware of any pain or disability on his part. In opposition to this testimony, plaintiff produced as witnesses his sister and his next door neighbor who stated that plaintiff complained to them that some chickens had fallen on him at work and that he was in pain.

“... [On] October 23, 1982, plaintiff asked Crise to complete and file an accident report, which Crise did. On the following Monday, October 25, 1982, plaintiff contacted his attorney and also went to see Dr. Wesley Dyer, a general practitioner. This physician referred plaintiff to Dr. C.W. Lowrey, an orthapedic (sic) surgeon. Rosh-to testified that he was not satisfied with either Dr. Dyer or Dr. Lowrey. The plaintiff did not introduce into evidence any report, deposition or other showing of the examination or findings of these two physicians.

“Plaintiff’s attorney sent him to Dr. Stuart Phillips, an orthapedic (sic) surgeon in New Orleans, who first saw plaintiff on November 29, 1982. In his deposition of May 19, 1983, Dr. Phillips states he found muscle spasm in the neck and that x-rays showed arthritis at C3-4-5. From these objective findings and the subjective complaints of pain in the cervical area radiating down the right arm and numbness in the right hand, he diagnosed nerve root pressure in the cervical area. From the history of the September 30, 1982 accident, Dr. Phillips expressed the opinion that this could have aggravated the pre-existing arthritic condition in the neck. Dr. Phillips prescribed conservative treatment consisting of drugs for pain and muscle relaxation. He has continued to see and treat plaintiff and it is his opinion that plaintiff cannot now return to work as a butcher which requires heavy lifting of meat and other strenuous use of the neck, shoulder and arm.

“The first issue is whether the plaintiff has proved the accident. The applicable rule on sufficiency of proof is stated in Alman (sic) v. Lionel F. Favret Co., Inc., 338 So.2d 785 (La.App. 4th Cir.1976) as follows:

‘The jurisprudence is clear that a plaintiffs testimony alone is sufficient to establish the occurrence of a work-related accident only where his story is corroborated by surrounding facts and circumstances and where there is nothing in the record to impeach or discredit his testimony. Additionally, in order to recover workmen’s compensation benefits the testimony as a whole must show more probably than not that an employment accident occurred and that it had a causal relation to the disability. White v. Freeport Chemical Company, 319 So.2d 563 (La.App. 4th Cir.1975).’

“See also Blacker v. Matlack, Inc., 349 So.2d 916 (La.App. 1st Cir.1977) which states the following rule:

‘The rule of law governing burden of proof in workmen’s compensation cases was recently restated in Prim v. City of Shreveport, 297 So.2d 421 (La.1974). In the cited authority, the Supreme Court held that although procedural rules are to be liberally construed in favor of claimants, the rule that a plaintiff must establish his case by a preponderance of evidence is not relaxed. In such cases, the testimony as a whole must show that more probably than not that an accident occurred, and that it bears a causal relation to the claimed disability. If the testimony is equally balanced, plaintiff’s claim must be rejected for failure to carry the burden of proof. Also, plaintiff’s cause must fail if the evidence shows only a possibility of causal connection, or leaves the issue to speculation or conjecture.’

“Under the rules stated above, I conclude plaintiff has not sustained his burden of proving the accident by a preponderance of the evidence. There are simply too many surrounding facts and circumstances which discredit his testimony. He says he reported the accident to Crise on the night it occurred, but Crise denies this. Roshto testified at the trial that on the night of the accident he did not clean-up the chickens and did not know who did, but in his pre-trial deposition he said he told Crise to get someone to clean-up and that other employees did so on that evening. There is no testimony to show who actually cleaned up the chickens, if indeed they did fall in the cooler. Plaintiff says he told Crise and Salley, Jr. the next day that the chickens had fallen on him and that he had been injured, but Crise and Salley testified that they expressly asked Roshto whether he had been injured sufficiently to need medical attention and he said no. Plaintiff continued to perform his full duties including heavy lifting of meat, etc. until he quit, about three (3) weeks later. He says he quit both because he was dissatisfied with the criticism by Salley, Sr. and because he was suffering pain. But the fact that he kept on performing his full duties and did not seek medical attention discredits his testimony as to pain. Plaintiff’s testimony is also seriously discredited by the fact that he did not introduce the findings of either Dr. Dyer or Dr. Lowrey. The jurisprudential rule is that where plaintiff is seen and examined by physicians and then fails to introduce their testimony, a presumption arises that their testimony would be unfavorable to him. McCauley v. LaFleur, 213 So.2d 176 (La.App. 3d Cir.1968) and the authority cited therein. Under this presumption, Dr. Dyer and Dr. Lowrey found no evidence of injury.

“It may be that there was an incident of some kind when a box or boxes of chickens fell on plaintiff. But if so, he has certainly failed to prove by a preponderance of the evidence that he suffered any injury as a result of this incident.

“Having reached this conclusion, it is unnecessary for the court to consider the remaining issues.

“For the reasons assigned, the court is of the opinion that there should be judgment herein dismissing plaintiff’s suit at his cost.”

As shown by the above discussion there was conflicting testimony. The trial court watched and heard the testimony and did not find the plaintiff credible. The credibility assigned by the trial judge to testimony in a worker’s compensation proceeding is to be given great weight upon review. Gautreaux v. U.S. Fidelity & Guar. Co., 422 So.2d 725 (La.App. 3rd Cir.1982). The trial court’s evaluation of the plaintiff’s credibility and subsequent finding that plaintiff did not prove he was suffering an injury as a result of an accident will not be disturbed.

The judgment is affirmed. Costs are assessed against plaintiff-appellant, James Allen Roshto.

AFFIRMED.


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    William Everette BISHOP, Jr., Plaintiff-Appellant, v. Ragina Sue Kilpatrick BISHOP, Defendant-Appellee.
    No. 83-891.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.
    Writ Denied Nov. 26, 1984.

      Michael H. Davis, Davis & Saybe, Alexandria, for plaintiff-appellant.
    Timothy A. Jones, Lafayette, for defendant-appellee.
    Before GUIDRY, LABORDE and YEL-YERTON, JJ.
   GUIDRY, Judge.

At issue in this case is the correctness of the trial court judgment which continues in effect a prior award of joint custody.

The parties to this suit were separated by judgment dated September 3, 1982. In that judgment, the trial court awarded the parties joint custody of the child, William E. (Billy) Bishop, III. The judgment ordered that the parents share the custody of the child, each having custody on alternate weeks. The judgment further provided that upon the child’s entering school, the mother would have custody during the school term, with the father to have custody on weekends, holidays (with the exception of alternate Christmas holidays), and for two months during the summer.

On February 18, 1983, plaintiff, William Everette Bishop, Jr., filed a petition seeking a divorce on grounds of adultery, and sole custody of the minor child, William E. (Billy) Bishop, III. The mother, Ragina Sue Kilpatrick Bishop, filed an answer and reconventional demand seeking a divorce based on the lapse of six months from the date of the judgment of separation. Her reconventional demand also included a prayer for child support. On March 22, 1983, the father filed a rule to show cause why the mother should not be held in contempt for failure to comply with the custody arrangement previously ordered by the trial court.

The father’s custody rule, his rule for contempt, and the mother’s rule for child support were all tried on May 2, 1983. The trial court rendered reasons for judgment on May 16, 1983, wherein he (1) decreed the mother in contempt of court for violating the terms of the judgment of separation regarding custody; (2) decreed that the mother was not entitled to child support; and, (3) denied the father’s rule for sole custody, continuing the joint custody arrangement as decreed in the judgment of separation. Formal judgment was signed on June 16, 1983.

The father appeals. Ragina neither appealed nor answered the appeal.

Plaintiff’s sole specification of error is that the trial court erred in failing to award him sole custody of the child.

FACTS

The plaintiff introduced considerable evidence regarding Mrs. Bishop’s fitness as a parent, with particular emphasis placed on her involvement in an extramarital affair. The evidence shows that on a number of occasions during the period of legal separation, Mrs. Bishop’s fiance, Ted Domingues, spent the night with her in the apartment she shared with Billy. The child was present on several of these occasions. The frequency of these incidents was somewhat in dispute. Mrs. Bishop characterized them as ocurring “occasionally”, and at another point, “very rarely”. She stated that she did not recall her fiance ever spending successive nights at her apartment. Mrs. Bishop further testified that the child was never aware that Domingues spent the night at the apartment because Domingues always left before the child awakened in the morning. Although Mrs. Bishop admitted to having sexual intercourse with Domingues, she stated that they never engaged in sexual intercourse when the child was present in the apartment.

Three private investigators testified on behalf of Mr. Bishop. Two of these, Richard and Judy Smith, conducted surveillance on Mrs. Bishop’s apartment on January 27, 28 and 29 of 1983. Their testimony established that Domingues spent all three nights at Mrs. Bishop’s apartment. The third private investigator, James Gary King, conducted surveillance on Mrs. Bishop’s apartment on February 3, 1983. King testified that Mrs. Bishop, her son, and Domingues were present in the apartment until he discontinued the surveillance when all the lights in the apartment were turned off.

In late February, 1983, Mrs. Bishop and her son moved into Domingues’ home, and Domingues moved into his parents’ home. Mrs. Bishop testified that she had not engaged in sexual intercourse with Do-mingues after she moved into his home. Richard and Judy Smith conducted surveillance on Domingues’ home on March 18, 1983. They testified that Mrs. Bishop and her son spent the night there, but that Domingues did not.

Dr. Milton Rhea, a psychologist who specializes in the treatment of children and adolescents, testified on behalf of Mr. Bishop. Dr. Rhea had examined both Mr. Bishop and his son on two separate occasions. He administered the Minnesota Multiphasic Personality Inventory (M.M.P.I.) to Mr. Bishop. He found that the tests showed Mr. Bishop to have very positive personality traits, including a positive self image, capability, confidence, and ambition. He found Mr. Bishop to have a good capacity to be a good father. Further, the test showed Mr. Bishop to be extremely honest. Dr. Rhea stated that the test revealed no negative personality traits in Mr. Bishop.

Dr. Rhea also testified regarding the conclusions he reached based on his examination of the child. He gave the child the Children’s Personality Inventory and the Children’s Aperception Test. He found that the child had some emotional disturbance, evidenced by worry, difficulty in sleeping, and bad dreams. He also stated that the child sees his mother as agressive and uncaring. Behavior problems which had recently surfaced in the child were attributed to the child’s confusion over the two male authority figures in his life, his father and Domingues. Dr. Rhea found that there was a “competition” for the child, and that Mrs. Bishop and Domingues encourage the child to see Mr. Bishop in a bad light. He further stated that the child told him that he was offered rewards by his mother and Domingues in their efforts to undermine the child’s relationship with his father. It should be noted that all the conclusions Dr. Rhea reached regarding Mrs. Bishop and Domingues were based on his examinations and interviews with the child. He never interviewed or examined Mrs. Bishop or Domingues. Dr. Rhea recommended that custody of Billy be placed in Mr. Bishop, with liberal visitation in favor of Mrs. Bishop.

Evidence was also introduced regarding three occasions where Mrs. Bishop refused to allow Mr. Bishop to take the child with him to Houston, Texas, where Mr. Bishop lives, for his regularly scheduled week of custody. These incidents formed the basis for the contempt rule filed by Mr. Bishop. Mrs. Bishop testified that on one of these occasions, she refused to allow Mr. Bishop to exercise his right because the two had agreed to amend the terms of the custody order, and under the terms of their agreement, she was to have custody that week. It should be noted that no other evidence of such an agreement appears in the record.

Mrs. Bishop testified that on another occasion she refused to allow Mr. Bishop to take Billy to Houston because the child was sick, and had a doctor’s appointment in Lafayette that week. She testified that on the third occasion, she refused to allow Mr. Bishop to take the child because she feared he would attempt to take the child away from her and not allow her to see him again. According to Mrs. Bishop, Mr. Bishop had threatened several months earlier to remove Billy to California, never to be seen again by Mrs. Bishop. She stated that she had this fear despite the fact that, since the alleged threat, she and Mr. Bishop had been alternating custody on a weekly basis without incident over a period of several months.

Mrs. Bishop also testified that she was physically abused by Mr. Bishop. She further stated that this physical abuse occurred in the presence of the child. She testified to one such incident which allegedly occurred in Houston on May 15, 1982. Mrs. Bishop had driven to Houston to inspect Mr. Bishop’s home, being interested in the type of home in which Billy was to live when in Houston. She testified that Mr. Bishop attempted to strangle her while the child looked on, and that he threatened to kill her if she attempted to get sole custody of the child. On cross examination, Mrs. Bishop admitted that she also went out to dinner that evening with Mr. Bishop, had sexual intercourse with him, and stayed overnight with him in Houston. She stated that these things occurred because she was under threats from Mr. Bishop.

Mrs. Bishop also introduced the testimony of a medical expert. Dr. Mario Pruss, an adult and child psychiatrist, examined Mrs. Bishop and the child on two occasions. Dr. Pruss found Mrs. Bishop to be in good emotional condition with no apparent psychological disorders. He wrote in his report that she was a mother of above average qualities. He also found Billy to be in good psychological condition. Dr. Pruss stated that the weekly travel between Lafayette and Houston created a potential for problems. He found the fifty-fifty sharing of custody to be detrimental to Billy’s best interest. He recommended that Billy spend the majority of time with Mrs. Bishop, with Mr. Bishop to have visitation rights. Dr. Pruss stated no conclusions with regard to Mr. Bishop, whom he had never examined. The fault he found with the child’s situation was related to the custody arrangement itself, not with Mr. Bishop’s fitness as a father.

Lisa Nielson also testified on behalf of Mrs. Bishop. She is a teacher and preparative coordinator at the Acadiana Learning School, which Billy attended while in Lafayette. She testified to the love Billy has for his mother, and the care and concern which Ragina has for her son. Ms. Nielson further stated that when Billy returns to the school after a week in Texas, he doesn’t seem particularly well adjusted, and he exhibits some behavior problems. She stated that when Billy gets into a fight with other children, he attempts to justify his behavior by claiming that his father instructed him to strike the other children.

The remainder of the testimony was that of friends or relatives of the respective parties. As one would expect, all of these witnesses gave testimony very favorable to the party on whose behalf they appeared. There is nothing in the record to cast doubt on the love each parent has for Billy or the ability of either parent to provide for his material needs.

In his written reasons for judgment, the trial judge reached several factual conclusions, including, (1) Mrs. Bishop was engaged in an adulterous relationship which constituted, or at least approached, concubinage; (2) Mrs. Bishop’s testimony, based on both content and her demeanor, was for the most part unworthy of belief; (3) Mrs. Bishop engaged upon a systematic course of undermining Billy’s love and respect for his father, and trying to substitute her fiance, Ted Domingues, as the father figure; (4) Mr. Bishop, on the other hand, was totally truthful; and, (5) Mr. Bishop, instead of undermining the mother’s position with the child, always encouraged and instructed the child to love and obey his mother.

Our careful review of the record reveals considerable support for all of the trial court’s factual conclusions. We find no clear error in his factual findings. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

Despite the foregoing factual determinations reached by the trial court, he denied Mr. Bishop’s rule for sole custody. In his reasons for judgment, he stated:

“Nevertheless, in spite of all of this, the Court does not feel that the best interest of the child would be served by granting full custody at this time to the father. Mrs. Bishop has made some improvement. She should be given a chance to show greater improvement in the future. Therefore, the plaintiff’s rule for full custody is denied. The Court feels that the best interest of this young child would be served by continuing the joint custody to which he has been accustomed. The terms of the custody order will changed (sic) automatically by its very wording when the child enters kindergarten. This should take place very shortly as the child is four and one-half years old at the time of this hearing and at that time a more stable schedule for school will commence.”

For the reasons which follow, we find that a joint custody arrangement is not in the best interest of the child in the instant case, and that the trial court’s judgment continuing joint custody was error.

JOINT CUSTODY

It is axiomatic that the paramount consideration in all child custody matters is the best interest of the child. Bagents v. Bagents, 419 So.2d 460 (La.1982). La.C.C. Art. 146(C) establishes a rebuttable presumption that joint custody is in the best interest of a minor child. A party opposing joint custody, such as plaintiff herein, may rebut the presumption by showing that joint custody is not in the best interest of the child. However, the trial court is vested with wide discretion in deciding custody cases, and his determination is to be disturbed only where there is a manifest abuse of discretion. Ferry v. Ferry, 433 So.2d 359 (La.App. 3rd Cir.1983). At the time this matter was tried, La.C.C. Art. 146 read:

“C. There shall be a rebuttable presumption that joint custody is in the best interest of a minor child unless:
“(1) The parents have agreed to an award of custody to one parent or so agree in open court at a hearing for the purpose of determining the custody of a minor child of the marriage; or
“(2) The court finds that joint custody would not be in the best interest of the child.
“For the purpose of assisting the court in making a determination whether an award of joint custody is appropriate, the court may direct that an investigation be conducted.”

La.C.C. Art. 146 was amended by Act 695 of 1983 (effective August 30, 1983). The amended version of the article retains the presumption that joint custody is in the best interest of the child, and enumerates, in La.C.C. Art. 146(C)(2), the following factors which are to be considered in determining whether the presumption has been sufficiently rebutted:

“(2) The presumption in favor of joint custody may be rebutted by a showing that it is not in the best interest of the child, after consideration of evidence introduced with respect to all of the following factors:
(a) The love, affection, and other emotional ties existing between the parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(j) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.
(k) The distance between the respective residences of the parties.
(l) Any other factor considered by the court to be relevant to a particular child custody dispute.”

While the foregoing was not made part of La.C.C. Art. 146 until after this matter was tried, the enumerated factors are all clearly relevant to the determination of what is in the best interest of the child. We deem it appropriate to consider these factors in addressing the correctness of the trial court’s joint custody order.

The record clearly shows that both Mr. and Mrs. Bishop love Billy deeply, and that each of them is capable of providing for the material, educational, and emotional needs of the child. Likewise, the record shows that Billy loves both of his parents. Thus, with regard to several of the factors delineated in La.C.C. Art. 146(C)(2) (notably a, b, c and g), the record reveals no evidence to rebut the presumption in favor of joint custody. Further, the record/shows that both parents can maintain Billy in a permanent family unit (La.C.C. Art. 146(C)(2)(e)). At the time of trial, Billy was 4½ years of age and attending preschool. Thus, there is little evidence with regard to his performance in school and community endeavors. La.C.C. Art. 146(C)(2)(h). Further, Billy was not called as a witness and therefore did not testify to a preference for custodial parent. La.C.C. Art. 146(C)(2)(i).

The remaining factors merit closer consideration.

With regard to Mrs. Bishop’s sexual affair with her fiance, we find that such circumstance does not per se render Mrs. Bishop an unfit parent. Greer v. Greer, 346 So.2d 846 (La.App. 1st Cir.1977), writ denied, 349 So.2d 1272 (La.1977); Peters v. Peters, 449 So.2d 1372, docket number 16, -192 (La.App. 2d Cir.1984); Lake v. Lake, 452 So.2d 376 (La.App. 3rd Cir.1984).

Of considerably greater importance in the instant case is the distance between the respective residences of the parties. La. C.C. Art. 146(C)(2)(k). As aforementioned, Mrs. Bishop lives in Lafayette while Mr. Bishop lives in Houston. Beginning with the separation judgment dated September 3, 1982, and continuing through the trial of this matter on May 2, 1983, Billy spent alternate weeks in Lafayette and Houston. This plan was continued by the trial court judgment of June 16, 1983, denying the plaintiff’s rule for change of custody.

It is noteworthy that both of the experts called to testify recommended a sole custody arrangement with visitation rights in favor of the non-custodial parent. In particular, Dr. Pruss stated that the fifty-fifty custody arrangement whereby Billy was shuttled between Lafayette and Houston on a weekly basis was detrimental to the child’s best interest. Dr. Rhea did not focus on the amount of travel the child had to endure in enforcement of the custody arrangement. However, he did find that the emotional disturbance being experienced by the child was related to the custody arrangement, and in particular to his confusion about the two male authority figures. He recommended sole custody in the father, in part because he found Mr. Bishop to be a more stable male authority figure.

We find the opinions of Drs. Pruss and Rhea persuasive insofar as they find the joint custody arrangement in this case to be detrimental to Billy’s best interest. The trial court’s custody order makes an adjustment in the custody arrangement upon Billy’s entering kindergarten. According to the testimony adduced, this was to take place shortly after the trial of this matter. However, the adjusted custody arrangement, in our view, is no less detrimental than the original arrangement. The adjusted order gives Mr. Bishop custody of Billy every weekend during the school term, from 5:00 P.M. on Friday to 6:00 p.m. on Sunday. We of course do not know the manner nor the frequency with which Mr. Bishop has chosen to exercise his custody privilege. It is clear, however, that the custody order authorizes him to pick Billy up in Lafayette every Friday, drive to his home in Houston to spend the weekend there, and to return Billy on Sunday evening. In our view, the constant travel involved in such a practice would be as disruptive, if not more so, than the alternate week arrangement.

Another important factor to be considered is found in La.C.C. Art. 146(C)(2)(j). The trial judge concluded that Mrs. Bishop and her fiance engaged in a systematic course of undermining the love and respect which Billy has for his father and trying to substitute Mrs. Bishop’s fiance as the father figure. As aforestated, the trial court’s conclusion in this regard has ample support in the record and is not clearly wrong.

Both of the medical experts testified that Billy’s living in two households, one in Lafayette and one in Houston, was a source of conflict and confusion. In particular, Billy’s confusion is due in part to the fact that he must answer to two male authority figures. In our view, Mrs. Bishop’s attempt to substitute her fiance as the father figure can only exacerbate Billy’s confusion.

Finally, we consider the importance of the desirability of continuity in a stable and satisfactory environment. La.C.C. Art. 146(C)(2)(d). The record shows that Billy was to enter kindergarten soon after the trial of this matter, in late summer or fall of 1983. If the custody plan was carried out as ordered, Billy will have spent the majority of the last ten months in the custody of his mother. As aforestated, Mr. Bishop had custody every weekend.

The desire for continuity would take on considerably greater importance if the custody plan was indeed stable and satisfactory. We find the opposite to be true. The shuttling of the child between Lafayette and Houston, authorized by the custody order, does not promote stability. The testimony of the medical experts was in accord insofar as it faulted the custody arrangement in part for Billy’s developing emotional problems.

Our careful consideration of the foregoing factors convinces us that the presumption in favor of joint custody was rebutted by Mr. Bishop, and that joint custody is not in Billy’s best interest. The trial court was clearly wrong in maintaining the joint custody plan.

When joint custody is determined not to be in the best interest of the child, the next preferred custody award is sole custody in favor of either parent. La.C.C. Art. 146(A)(2). Thus, having concluded that joint custody is not in Billy’s best interest, we are left to determine which parent should be awarded sole custody of Billy. Under normal circumstances, we would undertake to decide the issue on the basis of the complete record before us. Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975). We decline to do so in this case, having concluded that, in the instant case, the determination of sole custody is more properly made in the trial court.

Several factors prompt this conclusion. The record shows that Mrs. Bishop and Domingue planned to marry soon after the trial of this matter. In child custody cases where a parent has been engaged in an adulterous relationship, and the record shows that the parent intended to marry the paramour after the trial, the appellate court may choose to remand the matter to the trial court to consider the intended marriage in light of the “reformation” rule. See Atteberry v. Atteberry, 379 So.2d 18 (La.App. 3d Cir.1979), writ granted 381 So.2d 1231 (La.1979) (remanded to trial court to determine whether best interest of children requires custody of mother or of father), writ denied, 386 So.2d 94 (La.1980); Shackleford v. Shackleford, 389 So.2d 825 (La.App. 3d Cir.1980), modified and aff’d, 411 So.2d 736 (La.App. 3d Cir.1982) (child support payment increased). Further, the record indicates that Billy was to start school soon after the trial of this matter. His performance in school and the suitability of the school which he attended are factors which may be important in the custody determination. Finally, because over a year has passed since this matter was tried, there may be other events, other than those cited above, which have occurred in the interim which should be taken into account in determining a proper custody award.

For the above and foregoing reasons, the judgment of the trial court awarding joint custody to the parents is reversed. This matter is remanded to the trial court for a determination of a sole custody award and visitation rights in favor of the non-custodial parent, all in accordance with the best interest of the child.

REVERSED AND REMANDED.


author: KNOLL, Judge.

text:
    Gary McQUISTON, Plaintiff-Appellant, v. Larry SIMON, Defendant-Appellee.
    No. 83-896.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.

      Bass & Bass, Edward F. Bass, Lake Charles, for plaintiff-appellant.
    Reuvan Rougeau, Lake Charles, for defendant-appellee.
    Before FORET, STOKER and KNOLL, JJ.
   KNOLL, Judge.

Gary McQuiston filed suit against Larry Simon seeking damages for the improper construction of a concrete driveway. The trial court dismissed McQuiston’s demands finding that he failed to prove his case by a preponderance of the evidence.

McQuiston appeals contending the trial court erred in holding that Simon’s failure to use reinforcing wire and to pour a slab of less than four inches did not constitute bad workmanship; and further, finding that the driveway was suitable for the purposes for which it was constructed.

We affirm, finding the evidence presented a reasonable factual basis for the trial court’s finding, and in absence of manifest error, its finding will not be disturbed on appeal. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

In late 1979 Simon orally contracted to construct a house and concrete drive for McQuiston. No detailed plans and specifications, other than a floor plan which showed room dimensions, were provided to Simon. The construction of the driveway was left totally to Simon’s discretion.

On December 14, 1979, McQuiston’s father moved into the house Simon constructed. Cracks began appearing in the concrete driveway within one year. At the time of trial the cracks ranged in width from one-half inch to one inch. McQuiston informed Simon of the cracks and made demand upon Simon to repair the driveway. Simon refused contending that the cracks in the cement were not caused by his workmanship.

In every building contract it is implied that the builder’s work be performed in a good, workmanlike manner, free from defects either in materials or workmanship. An owner seeking to hold a contractor liable for defects in construction must show that the ruin was due to faulty materials or workmanship, and must prove his case by a preponderance of the evidence. LSA-C.C. Arts. 2762, 2769; Liberda v. Acadiana Roofing & Sheet Metal, 427 So.2d 504 (La.App. 3rd Cir.1983); Nichols Ford Co., Inc. v. Hughes, 292 So.2d 345 (La.App. 2nd Cir.1974).

There was conflicting testimony regarding the quality of Simon’s workmanship in constructing the concrete driveway. Terrell Hussers, an expert concrete finisher, testified that the job done by Simon fell below workmanlike standards. He stated that the slab should have been no less than four inches thick and that reinforcement wire should have been used.

J.J. Champeaux was accepted by the court as an expert in architecture. . He testified that wire reinforcement in driveways is not required by the Lake Charles City Code, and because of the soil conditions of southwest Louisiana, wire mesh will not prevent cracking in driveways.

The trial court is in the best position to evaluate the credibility of witnesses. Liberda, supra. The trial court’s assessment of the weight and credibility of expert testimony will not be disturbed on appeal unless it is found to be clearly erroneous. Smith v. Lumbermen’s Mutual Cas. Co., 414 So.2d 1281 (La.App. 3rd Cir.1982), writ denied, 417 So.2d 367. Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

Champeaux observed that the cracks in McQuiston’s driveway were abnormally large and were caused by upward and downward pressure on the middle section and edges of the driveway. He opined that the differential pressure could have been caused by natural soil conditions, i.e., tree roots beneath the driveway, excessive moisture or excessive drought. Further he thought that a heavy load on the driveway in conjunction with any of the natural soil conditions could likewise have caused the cracking. McQuiston testified that during a twenty inch rain, when water was halfway up the driveway, a 6600 pound mobile home toter was parked on the driveway for approximately fifteen minutes. Cham-peaux noted that the combination of this weight with the excessive rainfall was sufficient to create pressure to crack the concrete. Champeaux concluded that because of the abnormal pattern of cracks, the thickness of the concrete had no bearing on the driveway strength, and, although wire mesh would have minimized the cracking, it would not have prevented its occurrence. Champeaux stated that unless he had prior knowledge that the soil on which a driveway was going to be placed was subject to excessive and receding moisture, he would not specify the inclusion of wire reinforcement in a driveway.

Finally, although McQuiston presented photographs and testimony that characterized the driveway as cosmetically blemished, there was no proof that the driveway was unsuitable for the purposes for which it was constructed.

The trial judge found that McQui-ston failed to establish by a preponderance of the evidence that Simon’s workmanship was the cause of the cracking. The trial court’s findings of fact and credibility are entitled to great weight; in the absence of manifest error, its findings will not be disturbed on appeal. Arceneaux, supra.

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Gary McQuiston.

AFFIRMED.