author: AUGUSTINE, Judge.

text:
    STATE of Louisiana v. Amos BROWN.
    No. KA-1012.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 6, 1984.
    Rehearing Denied July 24, 1984.

      William J. Guste, JA, Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Beryl M. McSmith, Asst. Dist. Atty., New Orleans, for plaintiff-ap-pellee.
    Paul A. Bonin and Carla A. Failla, New Orleans, for defendant-appellant.
    Before REDMANN, C.J., and GULOTTA and AUGUSTINE, JJ.
   AUGUSTINE, Judge.

In August of 1974 Amos M. Brown was convicted of possession of heroin with intent to distribute, a violation of 21 U.S.C. § 844(a), a section of the Federal Controlled Substances Act. That conviction was used as the predicate conviction when Amos Brown was later tried and found guilty of attempted possession of a firearm or carrying a concealed weapon by a person convicted of certain felonies, a violation of LSA-R.S. 14:95.1. Pursuant to the conviction under 14:95.1. Brown was sentenced to serve 15 months, at hard labor with credit for time served. We affirm.

On appeal the defendant makes two specifications of error. First, he claims that it was error, as a matter of law, for the trial court to refuse to allow him to introduce copies of the federal statutes under which he was convicted for possession of heroin. The defendant also avers that the trial court erred, as a matter of law, when it refused to give the defendant’s requested jury instructions Nos. two and three, to the jury.

We will deal with the second specification of error first. The trial record shows that instruction No. two was denied because sections A and C of that instruction were already included in the judge’s jury charge as was all of the defendant’s requested instruction three. In charging a jury, the trial judge is required to cover every phase of the case supported by the evidence whether or not accepted as true. It is the duty of a trial judge to give “a requested special charge ... if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent; it need not be given if it is included in the general charge or in another special charge which is given.” State v. Smith, 414 So.2d 1237, 1242 (La.1982) (citations omitted). Thus instructions No. two (A) and (C) and instruction No. three were properly denied.

Section B of the defendant’s requested jury instruction No. two was denied because the trial judge considered it a misstatement of the law. That instruction was worded as follows: “With regard to the first element, that is that the defendant has the status of a convicted felon, the State must introduce the following evidence .... that the crime to which the defendant pled guilty was a felony under federal law and would have been one of the crimes enumerated under our law.” Since a special charge must be given by the trial judge only if it is wholly correct and pertinent, State v. Arnaud, 412 So.2d 1013 (La.1982), we must ascertain whether the trial judge correctly determined that requested instruction No. two (B) was a misstatement of the law. That inquiry clarifies and identifies the only issue in this case, which is whether a person convicted of a crime classified as a misdemeanor under federal law may nevertheless be punished as if he had been convicted of the Louisiana felony?

While this is an issue of first impression in Louisiana insofar as LSA-R.S. 14:95.1 is concerned, the decisions under a similar statute LSA-R.S. 15:529.1, the Habitual Offender Law, provide us with guidance.

The defendant relies primarily upon the case of State v. Ralph, 336 So.2d 836 (La.1976) for the proposition that in order to have a valid conviction under 15:529.1 the federal conviction must be a felony under federal law and the offense must also constitute a felony under Louisiana law. The defendant posits that this is also the proper test to apply in determining whether a conviction is valid under 14:95.1.

In Ralph the defendant was found guilty of the crime of simple burglary. Subsequently the district attorney filed a bill of information charging the defendant as a multiple offender under 15:529.1, based on a prior federal conviction for transporting a stolen motor vehicle in interstate commerce. He was found guilty and sentenced to life imprisonment. On appeal, the defendant contended that since Louisiana had not made transportation of a stolen motor vehicle in interstate commerce a crime, the federal conviction could not be used as a predicate under the Habitual Offender Law. In making its decision on that issue the court stated that, “In State v. Brown, 185 La. 855, 171 So. 55 (La.1936), we interpreted ‘which if committed in this state would be a felony’ by looking at the penalty provision of the crime and not the crime itself.” That portion of Ralph, however, was overruled in the more recent case of State v. Berndt, 416 So.2d 56, 59 ft. nt. 4 (La.1982). Berndt also involved the Habitual Offender Law. The defendant in Berndt claimed that his previous conviction for possession of stolen mail (a welfare check in the amount of $17.00), which was classified as a felony under federal law, would have been classified as only a misdemeanor under Louisiana law and thus could not be used as a predicate conviction under the Habitual Offender Statute. In making the decision that the defendant was correct in this contention the Court analogized the federal conviction for possession of stolen mail to the State offense of possession of stolen goods, a violation of LSA-R.S. 14:69, which has elements most comparable to the federal offense used as the predicate conviction.

To determine whether Amos Brown’s prior federal conviction can be used as the predicate conviction under 14:95.1 we apply the analysis used in Berndt. It is clear to us that the Louisiana law most analogous to the law under which Brown was convicted in federal court is a portion of the Uniform Controlled Dangerous Substances Law, LSA-R.S. 40:961 et seq., which makes possession of heroin a felony since the crime of which Brown was convicted in federal court, if committed in this state, would have been one of the enumerated crimes under LSA-R.S. 14:95.-1, i.e. “any violation of the Uniform Controlled Dangerous Substances Law,” it may properly be used as the predicate conviction in this instance. The trial court was therefore correct in its determination that jury instruction No. two (B) was a misstatement of the law, because in order to have a conviction under 14:95.1 it is not necessary for the federal crime to have been a felony.

As for the defendant’s first assignment of error, all the jury was required to know was that the defendant had been convicted of a crime which would have been a felony under Louisiana law. That determination is a question of law, not fact, and thus was not required to be presented to the jury. La.Code Crim.Proc.Ann. art. 802(2) and comment (b) thereto. Consequently, Brown’s conviction cannot be overturned on the basis of his first assignment of error since the trial judge was under no obligation to show or explain to the jury the exact federal law under which he had been convicted previously.

For the foregoing reasons we hereby affirm the trial court.

AFFIRMED.

      . 95.1. Possession of firearm or carrying concealed weapon by a person convicted of certain felonies. A. It is unlawful for any person who has been convicted of first or second degree murder, manslaughter, aggravated battery, aggravated or simple rape, aggravated kidnapping, aggravated arson, aggravated or simple burglary, armed or simple robbery, burglary of a pharmacy, burglary of an inhabited dwelling, or any violation of the Uniform Controlled Dangerous Substances Law which is a felony or any crime defined as an attempt to commit one of the above enumerated offenses under the laws of this state, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which if committed in this state, would be one of the above enumerated crimes, to possess a firearm or carry a concealed weapon, (emphasis added).

      . 529.1. Sentences for second and subsequent offenses; certificate of warden or clerk of court in the state of Louisiana as evidence.
      A. Any person who, after having been convicted within this state of a felony, or who, after having been convicted under the laws of any other state or of the United States, or any foreign government or country of a crime which, if committed in this state would be a felony, thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows: ... (emphasis added).

      . Specifically, LSA-R.S. 40:964 and 40:966.


source: Caselaw Access Project

license: Public Domain

text:
    Mary Ann Gaudin, Divorced Wife of Gustave Joseph MARA v. Gustave Joseph MARA.
    No. CA-1324.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 6, 1984.
    Rehearing Denied July 24, 1984.

      Bernard M. Plaia, Jr., Metairie, for plaintiff-appellant.
    Kern A. Reese, New Orleans, for defendant-appellee.
    Before BARRY, AUGUSTINE and CI-ACCIO, JJ.
   AUGUSTINE, Judge.

Plaintiff-appellant Mary Ann Gaudin and defendant-appellee Gustave Mara were married on June 1, 1968. At Mara’s instance, the marriage was declared null on April 25, 1975 because Gaudin’s previous marriage to John P. Buglione, Jr. had never been dissolved. Gaudin did not contest the suit for nullity, but allowed a default judgment to be entered against her.

On July 12, 1981, after several years of unfruitful out-of-court dispute concerning the disposition of property acquired during the second marriage, Gaudin filed this suit for partition by licitation of certain immovable property. Gaudin alleged that since the property was acquired prior to the nullification of her second marriage, she is entitled to an undivided one-half interest as the putative spouse in community. Defendant Mara answered that the prior judgment which nullified the marriage nullified the community of acquets and gains as well. Following trial on the merits, the court rendered judgment in Mara’s favor, finding Gaudin to be in bad faith and therefore not entitled to the civil effects of marriage as a putative wife. The sole ground stated for this conclusion was that:

“Mary Ann Gaudin is estopped from raising the putative effects of the marriage.
On April 21, 1975 in proceeding # 584-039 Mrs. Mara allowed a judgment of default to be entered against her.
If she had any putative rights, it seems to this court, that she should have proceeded forward under those rights at that time”. Reasons for Judgment.

Now on appeal, Gaudin contends that the trial court erred in holding her estopped to assert her putative status because neither the petition for annulment nor the judgment of nullity addressed the question of her good or bad faith in entering the second marriage.

Appellant’s arguments have merit. Whether the judgment below was based upon estoppel — collateral estoppel— or res judicata, neither is a proper ground for decision in this case. Louisiana does not recognize the doctrine of collateral es-toppel. Welch v. Crown Zellerbach Corp., 359 So.2d 154 (La.1978). Nor should the doctrine of res judicata have prevented a decision on the merits — the present suit for partition and the former action for nullity are not identical, either as to cause or the thing demanded. La.C.C. 2287. Welch v. Crown Zellerbach Corp., supra. Moreover, Mara did not specially plead the exception of res judicata, and the trial court should not have raised the objection on its own. La.C.C.P. art. 927.

Appellate courts have a constitutional duty to review questions of fact as well as of law, La. Const, of 1974, Art. 5, § 10(B) and where a finding of fact is interdicted because of legal error in the fact finding process and the record is otherwise complete, the appellate court should, if it can, render judgment on the record. Ragas v. Argonaut Southwest Ins. Co., 388 So.2d 707 (La.1980); American Machinery Movers, Inc. v. Continental Container Service, Inc., 436 So.2d 1289 (La.App. 4th Cir.1983). Accordingly, we shall proceed to discuss the merits of this case de novo.

Concerning the focal question before us — whether Gaudin entered her marriage to Mara in good faith — the trial record reveals the following undisputed facts:

Several years after Gaudin’s previous marriage to John P. Buglione in 1960, she became romantically involved with Gustave Mara. The couple decided to get married, and so Gaudin sought a divorce from Bu-glione in the courts of Alabama. On May 10, 1968, she drove with Mara to Birmingham where, with $350.00 given to her by the defendant, she entered the law office of K.C. Edwards, whose practice was largely devoted to divorces of this kind. There she signed various documents, all purporting to be the vehicles of a legal Alabama divorce. After completing the paperwork, Gaudin paid Edwards the required fee and, in return, received what appeared to be a divorce decree issued by Hon. Bob Moore, Jr. of the Circuit Court of Winston County, Alabama. The decree is impressed with the Seal of the Circuit Court of Winston County; it is stamped, “Filed 10th day of May 1968,” and it contains the signature of the Register of the Court.

Armed with a copy of this ostensibly official divorce judgment, Gaudin returned to Mara’s Birmingham hotel room and showed the document to him. Apparently satisfied with these papers, the couple drove back to New Orleans. They were married shortly afterward on June 1, 1968.

In August 1972, Mara and Gaudin acquired a new family home at 4968 Copernicus Street. It is this property which plaintiff Gaudin seeks to have partitioned.

In April of 1973, Mara attempted to adopt Gaudin’s child by her previous marriage, and finding it necessary to obtain another certified copy of her divorce judgment, he requested this document from the Circuit Court of Winston County, Alabama. Joyce Martin, Register of the Court, responded with a Certificate of Search of Records, stating that the divorce proceeding, Buglione v. Buglione, No. 8823, had never been filed. This notice is dated April 23, 1973.

Despite official notice that her first marriage had never been dissolved, Gaudin continued to live with Mara as his wife until approximately one year later, when she left the family home.

On October 10, 1974, Mara filed an action to nullify the marriage, and on April 25, 1975 he obtained a judgment by default.

In September 1975, appellant married her present husband, Warren Gaudin.

The single issue raised by the foregoing facts is whether Gaudin married Mara in the good faith belief that her previous marriage to Buglione had been dissolved by a valid judgment of divorce.

Normally, a spouse who seeks putative status enjoys a presumption that she married in good faith. Good faith, in the context of a putative marriage is an honest and reasonable belief that the marriage was valid and that no legal impediment to it existed. Funderburk v. Funderburk, 214 La. 717, 38 So.2d 502 (1949); Succession of Chavis, 211 La. 313, 29 So.2d 860 (1947); Succession of Marinoni, 183 La. 776, 164 So. 797 (1935). The presumption of good faith is not available, however, to a spouse who has been shown to be previously married and neither widowed nor divorced. To the contrary, such a spouse must bear the burden of proving his or her good faith in contracting the allegedly putative marriage. Gathright v. Smith, 368 So.2d 679 (La.1979). Whether a spouse enters an invalid marriage in good faith is a question that is largely answerable by the circumstances surrounding the marriage.

Since Gaudin’s marriage to Mara was annulled on the ground that her previous marriage to Buglione was never dissolved, appellant now assumes the burden to prove her good faith in marrying Mara; that is, she must prove her reasonable belief that the divorce decree given to her by the Birmingham attorney was valid.

Gaudin insists that she had no cause to doubt the genuineness of her divorce papers until late April 1973, when she and Mara received official notice that the divorce judgment was not on file. Gaudin explained that the Alabama lawyer had defrauded her into believing in the validity of the divorce judgment which he had issued to her, and that she was an easy mark for his trickery and deceit, having only a high school education and no knowledge of divorce law.

Given the undisputed facts of this case, we are satisfied that Gaudin was indeed an unwitting victim of deceit by her Alabama attorney, and that Gaudin entered her marriage to Mara in the belief that her divorce from Buglione was valid. The documents which evidence that divorce were apparently valid, even by the defendant’s reckoning, and it is unreasonable to suppose that anyone would willingly pay $350.00 for a divorce knowing that it would be without legal effect. We are impressed, also, with defendant Mara’s insistence that he never had cause to question the validity of the divorce, and since we have no reason to think that Gaudin had more knowledge of the Alabama attorney’s deceitful practices than Mara did, we would find them both to be good faith victims of fraud.

In connection with this, we note a federal court opinion which sets out in minute detail the unconscionable divorce fraud scheme to which Gaudin briefly referred in her testimony. She called it “the biggest scandal in Alabama for a while”. Indeed it was. See United States v. Edwards, 458 F.2d 875 (5 Cir.1972).

Having found that Mary Ann Gaudin, at the time of her marriage to Gustave Mara, entertained the good faith and reasonable belief that her divorce from John P. Bu-glione, Jr. was final and valid, and therefore, that there existed no impediment to her marriage, we conclude that Gaudin is entitled to putative status.

Accordingly, the judgment appealed from is reversed, and the property which is the subject of this dispute is hereby deemed to form part of the putative community which existed between Gustave Mara and his former putative wife, Mary Ann Gaudin. The case is remanded for further proceedings consistent with this opinion.

REVERSED and REMANDED.

      . Art. 5, § 10(B) provides: “Except as limited to questions of law by this constitution, ... appellate jurisdiction of a court of appeal extends to law and facts. In criminal cases its appellate jurisdiction extends only to question of law.” (As amended by Act No. 843, § 1 of 1980).


author: CHARLES R. WARD, Judge.

text:
    SEARS, ROEBUCK AND COMPANY v. Lily S. Guilbault, wife of/and Michael GUILBAULT, in Solido.
    No. CA-1476.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 6, 1984.

      Clarence P. Pavret, III, Bernadette B. Springmann, Pavret, Favret, Demarest & Russo, New Orleans, for plaintiff-appellant, Sears, Roebuck and Company
    Bruce G. Reed, Reed & Reed, New Orleans, for defendant-appellee, Lily S. Guil-bault
    Before SCHOTT, WARD and LOBRA-NO, JJ.
   CHARLES R. WARD, Judge.

Sears, Roebuck and Company appeals a judgment dissolving a writ of sequestration and awarding damages, costs, and attorney’s fees to Lily S. Guilbault. Ms. Guil-bault has answered the appeal, seeking increased damages and additional attorney’s fees.

The facts are uncontroverted: In June 1980, Michael Guilbault ordered custom-made Venetian blinds from Sears. He charged the cost of the blinds to his Sears revolving charge account which also authorized credit purchases by Lily Guilbault, his wife. Mr. Guilbault picked up the blinds from the Sears store at Clearview Shopping Center and took them to his office where they were installed.

On January 6, 1982, Sears filed suit in First City Court against Mr. and Mrs. Guil-bault for $902.42 due on their account for the purchase of the Venetian blinds. Mr. and Mrs. Guilbault filed a joint answer on March 22, 1982, denying liability. Thereafter, the case was continued indefinitely at the Guilbault’s request.

On June 7, 1982, title to the Guilbault’s residence was placed in the name of Lily Guilbault alone. Three days later, she began bankruptcy proceedings in her name only. On July 7, Michael and Lily Guil-bault obtained a judicial separation.

On November 19, 1982, Sears filed a verified Petition for In Rem Judgment and posted bond, seeking a Writ of Sequestration for the Venetian blinds, claiming a vendor’s privilege against Lily Guilbault only, alleging the blinds were in her possession.

The Writ of Sequestration was issued. Without notifying Ms. Guilbault, Sears’ collection manager, along with a locksmith and the court constable, went to Ms. Guil-bault’s house to seize the Venetian blinds. It was a weekday morning and no one was at home. The locksmith picked the door lock, and Sears’ collection manager and the constable entered. The Sears representative searched for the Venetian blinds, but they were not in the house. Shortly thereafter, Ms. Guilbault, who was at work at the time, found out about the entry and attempted seizure from a friend who had been called by a neighbor who saw the men enter the home.

Ms. Guilbault filed a Petition to Dissolve the Writ of Sequestration, claiming damages, attorney’s fees, and court costs. After a hearing, at which Sears’ collection manager and Ms. Guilbault were the sole witnesses, the Trial Court dissolved the writ, awarded Ms. Guilbault $1,000.00 in damages and ordered Sears to pay Ms. Guilbault $750.00 for attorney’s fees.

Sears raises three issues in its appeal, contending that 1) Ms. Guilbault has no right of action for the wrongful issuance of the writ of sequestration since she was not the owner of the property, 2) the Trial Judge erred in dissolving the writ of sequestration and awarding damages and attorney’s fees, and alternatively, 3) the damages awarded were excessive and unwarranted.

The law governing this case is Louisiana Code of Civil Procedure Article 3506:

The defendant by contradictory motion may obtain the dissolution of a writ of attachment or of sequestration, unless the plaintiff proves the grounds upon which the writ was issued. If the writ of attachment or of sequestration is dissolved, the action shall then proceed as if no writ had been issued.
The court may allow damages for the wrongful issuance of a writ of attachment or of sequestration on a motion to dissolve, or on a reconventional demand. Attorney’s fees for the services rendered in connection with the dissolution of the writ may be included as an element of damages whether the writ is dissolved on motion or after trial on the merits.

In contending that Article 3506 gives Ms. Guilbault no right of action for the wrongful issuance of the writ, Sears relies upon Evangeline Farmers’ Co-op, Inc. v. Smith, 320 So.2d 233 (La.App. 3rd Cir.1975). In that case, damages were sought for the wrongful seizure of two race horses. The Court rejected the claim, finding that “the record does not indicate that Smith owned the horses at the time of seizure.”

We find Ms. Guilbault’s claim distinguishable from the one rejected in Evangeline Farmers’ Co-op. First, it appears that when Mr. Guilbault bought the blinds, they were community property. Since the record does not contain the Guilbault’s community property settlement, we do not know who now owns the blinds. However, Ms. Guilbault sought dissolution and damages, not for a wrongful seizure, but for the wrongful issuance of the writ authorizing entry into her home, based on the false affidavit purporting to support issuance of the writ.

Additionally, even if Ms. Guilbault does not own the blinds, we find Givens v. Em-mer, 6 Orleans App. 8 (1908), is applicable. In that case, the plaintiff also urged that the defendant could not move to dissolve a writ because he was not the owner of the property attached. The court held that, “irrespective of the ownership of the property attached, the mere fact that an attachment has issued against a party gives him the right to ask for its dissolution.”

Article 3506 does not require that the party who moves for dissolution of a writ and damages for wrongful issuance be the owner of the property. Rather the article gives “the defendant” the right to seek dissolution and damages.” By making Lily Guilbault the defendant in its petition, Sears gave her a right of action and Sears is now liable if the issuance of the writ was wrong and if Ms. Guilbault proves damages.

Sears next contends that the Trial Judge erred in dissolving the writ and awarding damages and attorney’s fees. In support of this contention, Sears asserts that the Venetian blinds purchased by Michael Guil-bault were community property and the unpaid bill was a debt of the community. Further, Sears points out that the debt to Sears was listed on Lily Guilbault’s bankruptcy petition, meaning that Sears could no longer pursue Ms. Guilbault personally for the debt, but could only levy upon the property, which had been disclaimed by the bankruptcy trustee as “non-exempt household furniture and appliances” pursuant to La.R.S. 13:3881.

Sears’ statement of the pertinent community property and bankruptcy law is correct. However, we find the Trial Judge correctly dissolved the writ because Sears did not meet the statutory requirements for issuance of a writ of sequestration.

Louisiana Code of Civil Procedure Article 3501 requires:

A writ of attachment or of sequestration shall issue only when the nature of the claim and the amount thereof, if any, and the grounds relied upon for the issuance of the writ clearly appear from specific facts shown by the petition verified by, or by the separate affidavit of, the petitioner, his counsel or agent.

Louisiana Code of Civil Procedure Article 3571 requires as grounds for sequestration that it be “within the power of the defendant to conceal, dispose of, or waste the property.” In order to satisfy Article 3571, Sears filed a petition, verified by the sworn statement of its counsel, alleging that “Defendant has corporeal possession of the aforesaid property.” The petition further stated, in an attempt to maintain Sears’ vendor’s privilege, that the “aforesaid property remains in the possession of Defendant.”

When Ms. Guilbault filed her petition to dissolve the writ of sequestration, alleging that it was wrongfully issued, the burden was on Sears to establish to the Court’s satisfaction the facts upon which the writ was issued. Yorkwood Savings and Loan Association v. Thomas, 379 So.2d 798 (La.App. 4th Cir.1980). As the record clearly indicates, Sears failed to prove those necessary facts because Lily Guilbault never had possession of the Venetian blinds. When it became apparent to the Trial Judge that assertions in Sears’ petition were untrue, he properly dissolved the writ as wrongfully issued. Charles A. Kaufman Co. v. Gregory, 244 La. 766, 154 So.2d 392 (1963).

Hence, we find no error in the Trial Judge’s dissolution of the writ.

Turning to the issue of damages, Sears asserts that the Trial Judge erred in awarding damages, and alternatively, that the $1,000 general damages and the $750 attorney’s fees were clearly excessive and unwarranted. Ms. Guilbault asks that we review and increase the amount of the damages award and grant additional attorney’s fees, including compensation for the services provided in prosecuting this appeal.

The writ is an extremely harsh remedy, and when a party makes use of this powerful legal weapon, he must be ready to respond in damages, including attorney’s fees, if it is found wrongfully issued. La.C.C.P. art. 3506; General Motors Acceptance Corp. v. Sneed, 167 La. 432, 119 So. 417 (1929). Only actual damages in a proven amount can be awarded, assessed according to the peculiar circumstances of each case. Ralph’s Fleet, Inc. v. American Mariner Corp., 157 So.2d 317 (La.App. 4th Cir.1963). Actual damages are not restricted to pecuniary loss, but may include injury to social standing or reputation, anxiety, humiliation, and other emotional distress. See Johnson, Attachment and Sequestration, 38 Tul.L.Rev. 1, 28 (1963).

Ms. Guilbault testified that she suffered embarrassment because neighbors and friends were aware of the entry made into her home. Further, she became nervous, knowing that her privacy was not secure because her home could be entered and searched at any time without her permission or even prior notice. Ms. Guilbault lives with two young daughters, and she said that the intrusion of strangers into her home caused her to fear for their safety and security. Under the circumstances, we believe that the Trial Judge should have awarded additional damages; hence we increase the amount to $2,500.

We have reviewed the time records submitted by Ms. Guilbault’s attorney and find no manifest error in the award of $750 in attorney’s fees for services rendered in the Trial Court proceedings. Nonetheless, we deny the request for the attorney’s fees incurred in litigating this appeal.

Code of Civil Procedure Article 3506 allows an award of additional attorney’s fees to an appellee who is required to incur additional expenses to protect judgments dissolving writs of sequestration or attachment. See Huvel Tractor, Inc. v. Journet, 413 So.2d 978 (La.App. 3rd Cir.) writ denied 420 So.2d 446 (La. 1982). However, since statutes allowing awards of attorney’s fees are to be strictly construed, we hold Article 3506 permits attorney’s fees only for services rendered in an appeal directly “in connection with the dissolution of the writ”. The statute cannot be construed to permit awards of attorney’s fees incurred in answering Sears’ appeal of the amount of damages awarded by the Trial Court — unless the appeal of damages is coupled with an attempt to reimpose the writ. Louisiana Power & Light v. Crescent Properties Co., 273 So.2d 48 (La.App. 4th Cir.1973).

In the instant case, it is illogical to believe that Sears has appealed, seeking now to reimpose the writ and seize the property from Ms. Guilbault. A revival of the writ would be absurd since Sears now .knows that Ms. Guilbault does not have the Venetian blinds. Rather, Sears’ appeal is directed at the amount of damages awarded, and Ms. Guilbault answered the appeal to ask for an increase in damages — not because of the threat that the writ might be reimposed. Hence, Sears is not liable for Ms. Guilbault’s attorney’s fees for the appeal.

For these reasons, we amend the judgment of the Trial Court to increase the amount of Ms. Guilbault’s damages to $2,500. In all other respects, the judgment is affirmed with all costs being assessed against Sears, Roebuck and Company.

AMENDED AND AFFIRMED.


author: WARD, Judge.

text:
    Linda Ann Fulton ANZALONE v. Sylves J. FORD, Jr., et al.
    No. CA-1627.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 6, 1984.
    Rehearing Denied July 24, 1984.
    Writ Denied Oct. 26, 1984.

      Kirk A. Vaughn, Arabi, for defendants-realtor, Sylves J. Ford, Jr., et al.
    Before SCHOTT, WARD and LOBRA-NO, JJ.
   WARD, Judge.

Linda Anzalone filed suit in asking for executory process to enforce an authentic Act of Mortgage. The mortgage and the note it secures were given by Sylves Ford for the balance due on the purchase price of a house and lot in St. Bernard Parish which Mr. Ford purchased from Mrs. Anza-lone. Shortly after Ford purchased the property he sold it to Mrs. Nelmar Ely, who assumed the note and mortgage. Ely was made a defendant with Ford.

Ford and Ely obtained a temporary restraining order to prohibit the seizure and sale and petitioned for a preliminary and permanent injunction. After a hearing, the Trial Judge denied the request for an injunction and ordered the issuance of execu-tory process.

Ford and Ely have appealed. They first contend that because the record on appeal does not contain the promissory note, the Trial Court’s order of foreclosure by execu-tory proceedings should be vacated. Counsel, however, has understandably been misled by an unfortunate chain of events. The petition for foreclosure referred to the note as “annexed hereto” and the Trial Judge obviously examined the note with the authentic act of mortgage before ordering executory process. When the record was prepared for appeal, the note was detached from the pleadings and forwarded as an exhibit to this Court where it was placed in the court safe. After oral argument, we examined the note and found that it was paraphed for identification with the authentic act of mortgage. The record in this Court is therefore complete, and for appeal purposes, the note is considered as part of the record in this case.

Ford and Ely next contend that Anzalone cannot avail herself of executory proceedings because they did not confess judgment in the note. We disagree since both confessed judgment in the mortgage.

The pertinent articles of the Louisiana Code of Civil Procedure are set out below. Art. 2631. Use of executory proceedings

Executory proceedings are those which are used to effect the seizure and sale of property, without previous citation and judgment, to enforce a mortgage or privilege thereon evidenced by an authentic act importing a confession of judgment, and in other cases allowed by law.
Art. 2635. Authentic evidence submitted with petition
The plaintiff shall submit with his petition the authentic evidence necessary to prove his right to use executory process to enforce the mortgage or privilege. These exhibits shall include authentic evidence of:
(1) The note, bond, or other instrument evidencing the obligation secured by the mortgage or privilege.
(2) The authentic act of mortgage or privilege on immovable property importing a confession of judgment.

Thus, although the authentic act of mortgage must contain a confession of judgment, Article 2635 does not require that the note also contain a confession of judgment, and we do not believe this requirement can be inferred. Moreover, Article 2636 provides a note is deemed authentic evidence when paraphed for identification with the authentic act of mortgage, without requiring that it also contain a confession of judgment.

Consequently, we hold that it is not necessary in an executory proceeding that the note contain a confession of judgment.

Finally, Ford and Ely contend the Trial Judge erred when he found that they had defaulted by failing to pay monthly installments due under the note. The record shows conflicting evidence of payments and receipts. Ford and Ely allege payments for which there are no receipts; Mrs. Anzalone denies receipt of those payments. Nonetheless, Ford and Ely rely mainly on their allegations that Mrs. Anza-lone’s eratic behavior prevented compliance with the terms of the note, making prompt payments impossible.

The Trial Judge obviously believed compliance was possible under the circumstances and held that Ford and Ely defaulted. This is a finding of fact that will not be reversed unless the record shows that it is manifestly erroneous. The record does not show that it is. Rather, the record shows some payments were not made while others were not timely.

Moreover, the mortgage provides for payments on the note to be made at the St. Bernard Bank & Trust Co. Mr. Ford, or his counsel, could have unquestionably fulfilled the terms of the note and mortgage by making payments there, eliminating all question of compliance.

AFFIRMED.


text:
    Frank Jack TARDO v. Myra SEITHER, Divorced Wife by First Marriage of Myron Juneau, and Wife By Second Marriage of Daniel J. McKeever, and Lois Seither, Wife of Salvador E. Gutierrez, Jr.
    No. CA-0803.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 12, 1984.
    Rehearing Denied July 24, 1984.

      Robert H. Matthews, New Orleans, for plaintiff-appellant.
    Salvador E. Gutierrez, Jr., New Orleans, for defendants-appellees.
    Before GARRISON, AUGUSTINE and BYRNES, JJ.
   AUGUSTINE, Judge.

Plaintiff Frank Tardo brought this action in quanti minoris against defendants Myra Seither McKeever and Lois Gutierrez for a reduction in the purchase price of a house. The defendants filed a third party demand against Don Clement Heating and Air Conditioning Inc., for breach of contract. The trial court held for the defendants and Mr. Tardo appeals. We reverse.

During the fall and winter months of 1980 negotiations for the purchase of a house went on between Mr. Tardo and Mrs. McKeever. The house was owned in indivi-sión by Mrs. McKeever and Mrs. Seither, and Mrs. McKeever resided in the house. In November of 1980 the house heater malfunctioned and Mrs. McKeever contacted Don Clement Heating and Air Conditioning, Inc. Kenneth Blum, at that time an employee of Don Clement’s, went to the house to fix the heater. Both Mr. Blum and Mrs. McKeever testified that the heater was making a loud thumping noise prior to this repair. The bill reflected that Kenneth Blum “[b]olted hub to existing squirrel cage. Replaced bad blower motor. Heater checks out O.K.” Mrs. McKeever stated that the noise ceased after this repair.

The heater continued in good working order while Mrs. McKeever resided in the house, i.e. until November 30, 1980. Thereafter, Mrs. McKeever continued to use the heater when she visited the dwelling. Following the repair of the heater, Mr. Tardo visited the house at least twice, once when it was vacant. On March 12, 1981 Mr. Tardo purchased the residence for $52,000.

In August Mr. Tardo called Kenneth Blum, who then operated his own heating and air conditioning service. Mr. Blum was called either to determine whether the heater was working properly, or to give Mr. Tardo an estimate on a new heating unit. At that time Mr. Tardo turned on the heater and it made a loud noise. On Mr. Blum’s advice Mr. Tardo allowed Mr. Blum to install a new unit. Subsequently Mr. Tardo filed this suit for a reduction in the purchase price of the house claiming that the heater was defective at the time of the sale.

When a house is sold with a heating system already installed, the heating system forms as much a part of the house as does the foundation or the roof and is covered by the vendor’s warranty. If the heating system proves to have hidden vices which existed at the time of the sale and which were such as to render it useless and unsuited for its purpose, the buyer has an action for redhibition or diminution of the purchase price.

Cipriano v. Superior Realty & Construction Company, 228 La. 1065, 84 So.2d 822 at 826 (1955).

LSA-C.C. Art. 2544 states that “[t]he action for reduction of price is subject to the same rules and to the same limitations as the redhibitory action.” “[T]o maintain an action of redhibition the plaintiff must prove that the vendor sold a thing to him, that the thing contained a hidden vice, not apparent by ordinary inspection which subsequently rendered the thing unfit for use, that the vice existed at the time of sale, and that the vendor did not advise him of it.” Peters v. Pattison Pontiac Co., 259 So.2d 99, at 101 (La.App. 4th Cir.1972).

“The warranty against redhibitory defects in sales .of used equipment is not as extensive as in sales of new equipment but it does require the equipment to operate reasonably well for a reasonable period of time.” Dunn v. Pauratore, 387 So.2d 1227 at 1231 (La.App. 1st Cir.1980).

Since there was no dispute that a sale took place between the parties, the first issue for our determination is whether the vice complained of actually existed at the time of the sale. “The buyer may prove the existence of the redhibitory defect before the sale by direct or circumstantial evidence giving rise to a reasonable inference that the defect existed at the time of the sale. Rey v. Cuccia, 298 So.2d 840 (La.1974); Womack and Adcock v. 3M Business Products Sales, Inc.), 316 So.2d 795 (La.App. 1st Cir.1975).” Cox v. Lanier Business Products, Inc., 423 So.2d 690 at 693 (La.App. 1st App. 1st Cir.1982).

The trial court held that the plaintiff “failed to carry his burden to prove by a preponderance of the evidence: (1) that the heater was defective.” In making that determination the trial court apparently relied on the following findings of fact: that the heater had been successfully repaired by Kenneth Blum in November of 1980; that Blum stated that the heater was “OK”; and that the heater worked properly until the date of the sale. However, the mere fact that the heater was successfully repaired in 1980 and worked until the date of sale does not mean that it was not defective. Indeed the circumstantial evidence would seem to indicate otherwise. When the heater broke down in November 1980 it was fifteen years old. There is also no dispute that this was the first time Mr. Tardo had turned the heater on since the sale. These findings of fact are inconsistent with the judgment of the trial court. Taking this evidence as a whole it is clearly more probable than not that the heater was defective at the time of the sale and we therefore reverse the trial judge’s conclusion to the contrary.

In addition we must determine whether the defect in the heater rendered the house unfit for its intended use or its use so inconvenient or imperfect that a reasonable buyer would not have purchased it. The problem we are confronted with here, is that there is no testimony that the heater did not heat, rather it apparently emitted heat and a loud noise. A properly functioning heater does not make a loud noise. The warranty governing the house therefore guarantees, not only that the heater emit heat but that it will do so relatively quietly. Consequently we determine that the defect in the heater rendered the use of the house so imperfect that a reasonable buyer would not have paid the quoted purchase price for the residence.

Having found that a defect existed in the heater at the time of sale we must determine whether the defect was discoverable by ordinary inspection. Apparently there was no outward physical sign of the heater’s defect, discoverable by mere physical inspection. Mrs. Seither testified that she told Mr. Tardo that all of the component parts of the house were in good working order. Mr. Tardo was entitled to rely on that representation. Mrs. Seither further testified that the heater worked properly until .the day she moved out of the house, and worked on those days she returned to the house when it was vacant, before the sale. Given these uncontradict-ed facts Mr. Tardo would not have discovered the defect even if he had inspected the heater by turning it on. We therefore hold that under these circumstances the defect would not have been' discovered by ordinary inspection.

The final requirement for an action in quanti minoris is that the seller not have advised the buyer of the defect. As we noted above, not only did Mrs. McKeever fail to inform Mr. Tardo of the repair, she stated, in good faith based upon her understanding of the repair work, that the component parts of the house were in good working order. There is no doubt that Mrs. McKeever did not notify Mr. Tardo of the heater’s defect.

Because we find that Mr. Tardo proved that when the house was sold it contained a latent redhibitory defect, we must determine the amount by which the purchase price of the house should be reduced.

It is well established that “the amount to be awarded is the difference, at the time of the sale, between the value of the thing sold in its defective condition and its value as warranted.” Lemonier v. Coco, 237 La. 760, 112 So.2d 436 at 438 (1959), see Verlander v. Hoffer, 351 So.2d 229 (La.App. 4th Cir.1977). The house was warranted to have a non defective heater, not a new central heating and air conditioning unit. Mr. Clement testified that in his expert opinion a non defective heater of that age was worth $400.00. He also testified that a defective heater was worth $75.00. The difference between the worth of the non defective heater and the defective heater is $325. Thus we award Mr. Tardo a $325.00, reduction m the purchase price of this house.

For the foregoing reasons the decision of the trial court is reversed and set aside and judgment is now rendered in favor of the plaintiff Frank Tardo for the sum of $375.00 with legal interest from the date of judicial demand until paid. The costs of this appeal to be divided equally between the appellant and the appellee.


author: CUTRER, Judge.

text:
    James HALL, et ux., Plaintiffs-Appellants, v. PARK DELL TERRACE PARTNERSHIP, et al., Defendants-Appellees.
    No. 83-738.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 1984.

      Donald McKnight, Lake Charles, for plaintiffs-appellants.
    Plauche, Smith & Nieset, Jeffrey M. Cole, Lake Charles, for defendants-appel-lees.
    Before CUTRER, DOUCET and YEL-VERTON, JJ.
   CUTRER, Judge.

A motion for summary judgment was granted in favor of the defendant, Park Dell Terrace Partnership. From that judgment plaintiffs, James and Brenda Hall, perfect this appeal. We affirm.

On August 31, 1979, plaintiffs leased premises for a jewelry store from Charles and Jeanette Mathis (Mathis). Mathis sold the property to the Park Dell Terrace Partnership (Park Dell Terrace), comprised of James Daley and Kenneth Strauss. Park Dell Terrace owned and was leasing the property to the plaintiffs on August 24, 1980, whén their jewelry store was burglarized. The burglars gained access to the premises from an adjoining store through a common wall constructed of sheetrock. The value of the stolen jewelry was $140,-000.00. Plaintiffs-lessees seek damages from the lessors as a result of the burglary.

This is the second appeal in this case. In the first appeal, Hall v. Park Dell Terrace Partnership, 425 So.2d 372 (La.App. 3rd Cir.1982), the plaintiffs argued that the sheetrock wall was not adequate to serve as a protection for plaintiffs’ business and that Mathis was liable under LSA-C.C. art. 2695. This article provides that a lessor guarantees the lessees against all vices and defects of the things. This court held that LSA-C.C. art. 2703 relieves that lessor of any duty to protect the lessee against any disturbances caused by persons not claiming any right to the premises (such as a burglar). In view of this limitation, we held that LSA-C.C. art. 2695 did not extend to losses resulting from a burglary.

In the first appeal, plaintiffs also sought recovery under the provisions of LSA-C.C. art. 2322. We held that, since the petition failed to allege that Mathis was the owner at the time of the burglary, art. 2322 could not be applicable. The exception of no cause of action filed by Mathis was sustained and the suit against them was dismissed. The suit was remanded and the petition was amended to state that Park Dell Terrace was the owner/lessor at the time of the burglary.

The plaintiffs’ position on this appeal is that Park Dell Terrace, as owner, is liable under the provisions of LSA-C.C. art. 2322. This article provides as follows:

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

The plaintiffs contend that the common wall between the jewelry store and the adjoining premises, being constructed with sheetrock, was inadequate to protect the jewelry store from burglars’ entry. Plaintiffs label this condition as a “vice” under art. 2322 and contend that this article creates a liability of the lessor/owner to the plaintiffs for the losses due to a theft committed by the burglar. We disagree.

The forced entry by burglars is a disturbance “caused by persons not claiming any rights to the premises.” The lessor/owner is relieved of any duty to protect the lessee against such disturbances by the provisions of LSA-C.C. art. 2703, supra. Under these circumstances, the lessor/owner of the premises, Park Dell Terrace, is relieved of liability for plaintiffs’ losses.

A motion for summary judgment should only be granted if there is no genuine issue as to the material facts and if the mover is entitled to a judgment as a matter of law. Chaisson v. Domingue, 372 So.2d 1225 (La.1979); LSA-C.C.P. art. 966. Since the defendant cannot be held liable for the losses incurred by the lessees as a result of the burglary, there are no factual circumstances which could be proven at trial that would support a judgment against the defendant. The defendant, Park Dell Terrace, is, thus, entitled to a judgment as a matter of law and was properly granted the motion for a summary judgment by the trial court.

For the above reasons, the trial court judgment is affirmed. Costs are to be paid by plaintiffs-appellants, James and Brenda Hall.

AFFIRMED.

      . LSA-C.C. art. 2703 provides:
      "The lessor is not bound to guarantee the lessee against disturbances caused by persons not claiming any right to the premises; but in that case the lessee has a right of action for damages sustained against the person occasioning such disturbance.”

      . LSA-C.C. art. 2695 provides:
      "The lessor guarantees the lessee against all the vices and defects of the thing, which may prevent its being used even in case it should appear he knew nothing of the existence of such vices and defects, at the time the lease was made, and even if they have arisen since, provided they do not arise from the fault of the lessee; and if any loss should result to the lessee from the vices and defects, the lessor shall be bound to indemnify him for the same."


author: CARTER, Judge: SHORTESS, J., PONDER, Judge,

text:
    David GRIFFIN, et al. v. SUCCESSION OF Velma King BRANCH, Through Johnny SMITH, Executor.
    No. 83 CA 0446.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.
    Writ Granted Oct. 12, 1984.

      James R. Coxe, III, Baton Rouge, for plaintiffs-appellants David Griffin, Thelma Griffin Battley, John Griffin, Daisy Griffin.
    J.D. Deblieux, Baton Rouge, for defendant-appellee.
   CARTER, Judge:

This is a suit in which the plaintiffs contend that they are illegitimate children of David Branch and as such they seek to establish filiation. David Griffin, Thelma Griffin Battley, John Griffin, and Daisy Griffin filed suit against the Succession of Velma King Branch, alleging that they are illegitimate children and heirs of David Branch, deceased husband of Velma King Branch.

Plaintiffs’ mother, Pearllena White Griffin, was married on June 10, 1940, to Albert Griffin. The two were allegedly physically separated on July 15, 1955. On March 6, 1956, Thelma White (Thelma Griffin Battley) was born to Pearllena White Griffin. David and Daisy Griffin were born on August 26, 1957, with the birth certificates listing Albert Griffin and Pe-arllena Griffin as the father and mother. On February 26, 1962, John Felix Griffin was born, with the birth certificate listing Albert Griffin and Pearllena Griffin as the father and mother. On December 27,1972, the marriage of Albert Griffin and Pearlle-na Griffin was dissolved by a divorce from a California court.

David Branch and Velma King Branch were married approximately fifty years ago. No children were born of this marriage. On December 7,1980, David Branch died intestate in East Baton Rouge Parish and was survived by his spouse Velma King Branch. Succession pleadings were filed placing Velma Branch in possession of the estate of David Branch. The estate, which was comprised of two pieces of property, furniture, and an automobile, consisted of community property acquired by the Branches.

Subsequently, on January 29, 1982, Velma King Branch died testate. Johnny Smith was named executor in the succession pleading.

On March 1, 1982, David Griffin, Thelma Griffin Battley, John Griffin, and Daisy Griffin filed suit in the succession proceeding to establish filiation to David Branch and to be recognized as his illegitimate heirs.

The trial judge rendered judgment in favor of defendant, finding that plaintiffs had failed to carry the burden of proving their filiation to David Branch. From this adverse judgment, plaintiffs appeal.

Although plaintiffs have assigned four errors committed by the trial court during trial on the merits, we do not find it necessary to address them because we seriously question plaintiffs right to bring an action to establish filiation to David Branch.

Plaintiffs were all born or conceived during the marriage of their mother to Albert Griffin. They are, therefore, entitled to legitimate filiation by application of the presumption of LSA-C.C. art. 184.

The trend of the jurisprudence has been to allow the true parentage of an individual to be established, if such can be accomplished. Succession of Mitchell, 323 So.2d 451 (La.1975); Warren v. Richard, 296 So.2d 813 (La.1974); IMC Exploration Co. v. Henderson, 419 So.2d 490 (La.App. 2nd Cir.1982), writs denied, 423 So.2d 1149, 1150 (La.1982).

Warren v. Richard, supra, held that, for purposes of a wrongful death action under LSA-C.C. art. 2315, a child may be the presumed legitimate child of the husband of the mother under LSA-C.C. art. 184 and the biological child of another man. Succession of Mitchell, supra, held that children presumed to be legitimate children of the husband of the mother (under LSA-C.C. art. 184) could be legitimated under LSA-C.C. art. 198 by the subsequent marriage of the mother to their biological father.

In IMC Exploration Co. v. Henderson, supra, a concursus proceeding was filed to determine royalty ownership of proceeds from wells located on property whose ownership was in question. One group of claimants was Rayvenita Thomas and her mineral assignees who contended that Ray-venita was the illegitimate daughter of Moody Henderson, a son of Martha and Charlie Henderson (record owners of the property) who predeceased his parents, and that as such, Rayvenita was entitled to inherit from the Hendersons by representation. There was no dispute that Rayveni-ta’s mother was married to a man other than Moody Henderson at the time of Ray-venita’s conception and birth. Rayvenita’s legal father never filed an action to disavow paternity. The presumption of paternity under LSA-C.C. art. 184 was clearly applicable. The Second Circuit recognized that prior to Warren and Mitchell Rayveni-ta would not have been able to prove that she was the biological child of Moody Henderson and that she was not the legitimate child of her mother’s husband. The court also recognized that in Warren and Mitchell there was no dispute as to the identity of the biological father, whereas Rayveni-ta’s parentage was vigorously contested. The Court of Appeal allowed Rayvenita to assert her claims, but reversed the trial court’s factual findings that she had proven by a preponderance of the evidence that Moody Henderson was her biological father.

At the time of the Henderson case, LSA-C.C. art. 208 read as follows:

''Illegitimate children, who have not been acknowledged as provided in Article 203, may be allowed to prove their paternal descent.”

LSA-C.C. art. 208, as amended by Act 720 of 1981, specifies that a child who enjoys legitimate filiation by application of the presumption of LSA-C.C. art. 184, or a child who has been legitimated, or formally acknowledged by the parent need not institute a proceeding to establish filiation under LSA-C.C. art. 209.

.LSA-C.C. art. 209, as amended by Act 720 of 1981, implies that a child who enjoys legitimate filiation, or is legitimated or formally acknowledged, cannot institute a proceeding to establish filiation.

Although this court has recently held in Succession of Levy, 428 So.2d 904 (La.App. 1st Cir.1983) that a child entitled to legitimate filiation by application of the presumption of LSA-C.C. art. 184 is not prohibited from establishing filiation to his biological father, we are now convinced that the Levy decision should be seriously reconsidered in light of the changes made in Act 720 of 1981. In Levy we interpreted the language in LSA-C.C. art. 209 (“a child not entitled to legitimate filiation”) to mean “a child who is not entitled to legitimate filiation to the parent to whom he is attempting to prove filiation.”

In carefully reading the statutory changes made in Act 720, we feel compelled to overrule our previous holding in Succession of Levy and find that the legislative intent is that a child entitled to legitimate filiation may not institute a proceeding to establish filiation to another man. In light of the prior jurisprudence, we interpreted LSA-C.C. art. 209, as amended by Act 720 of 1981, too broadly in our decision in Levy. We now believe that our expansive reading of the statute is contrary to what the legislature intended.

By enacting Act 720, the legislature has taken a positive step toward preventing a legitimate child from shopping for a more prosperous biological father. In order to protect children from the stigma of illegitimacy, Louisiana courts have frequently established a father-child bond between two persons who could not possibly have a biological connection. To now permit and encourage legitimate children to bastardize themselves for a larger share of the succession pie would contradict public policy and the “good order” envisioned in the Civil Code.

In dicta, our brethren of the Second and Third Circuits indicated that they agree with this inference of legislative intent. IMC Exploration Co. v. Henderson, supra; Fontenot v. Thierry, 422 So.2d 586 (La.App. 3rd Cir.1982), writ denied 427 So.2d 868 (La.1983).

In comparing the language of LSA-C.C. arts. 208 and 209 as these articles read in Act 549 of 1980 and in Act 720 of 1981, the Second Circuit in IMC Exploration Co. v. Henderson, supra, noted that “under the new Article 208, since Rayvenita Thomas enjoys legitimate filiation, she might well, under the intent of the present law, be precluded from asserting her claim as an illegitimate.” The Third Circuit in Fonten-ot v. Thierry, supra, stated:

“The Legislature seems to have finally taken a positive step toward .eliminating the multiple paternity abuse that has existed in our jurisprudence for a number of years. The line of cases allowing dual paternity to be proven in situations in which the child seeking to demonstrate filiation is already the presumed legitimate child of another man should now be seriously reconsidered in light of this new legislation.”

The court in Fontenot went on to state that Warren and its progeny seem to have “opened the door to an array of paternity suits allowing mothers of otherwise legitimate children to bring filiation proceedings against alleged biological fathers at their own whim and fancy.”

Therefore, we hold that under LSA-C.C. arts. 208 and 209, as amended by Act 720 of 1981, a legitimate child cannot institute a proceeding to establish filiation to another man.

In the instant case, plaintiffs are entitled to legitimate status by application of the presumption of LSA-C.C. art. 184. This presumption, however, is rebuttable. In order to bring a suit to establish filiation under LSA-C.C. arts. 208 and 209, plaintiffs must successfully rebut the presumption of legitimacy.

In their petition, plaintiffs alleged that “they were conceived while their father and mother resided in the home of their father.” The evidence demonstrated that although Pearllena Griffin lived in a house which belonged to David Branch, the house was a rent house. Further, the evidence plaintiffs presented at trial, consisting solely of their own self-serving testimony and that of their mother, did not substantiate the allegations contained in plaintiffs’ petition. The defendants’ witnesses, including neighbors of the Branches and people in the community, also rebutted plaintiffs’ allegations. Additionally, plaintiffs’ legal father (Albert Griffin) never disavowed plaintiffs.

Because plaintiffs are entitled to a presumption of legitimate filiation, which has not been rebutted, under LSA-C.C. arts. 208 and 209, they are precluded from instituting an action to establish filiation to another man.

For the above reasons, the judgment of the trial court dismissing plaintiffs' suit is affirmed.

AFFIRMED.

SHORTESS, J.,

dissents from that portion of the opinion which overrules Succession of Levy but I concur in the result because the trial judge was not clearly wrong in holding that plaintiff failed to prove this filiation to David Branch.

PONDER, J., dissents for written reasons.

LOTTINGER and EDWARDS, JJ., dissent for reasons assigned by PONDER, J.

PONDER, Judge,

dissenting.

First of all I believe that the majority has seized upon an inappropriate case to overrule Succession of Levy, 428 So.2d 904 (La.App. 1st Cir.1983). Plaintiffs and appellants are seeking to establish filiation to David Griffin, not in his succession, but in that of his wife.

But waiving this uncertainty, I believe the majority to be wrong in its overruling of Levy. As I understand the rationale, the failure to follow Succession of Mitchell, 323 So.2d 451 (La.1975), Warren v. Richard, 296 So.2d 813 (La.1974) and IMC Exploration Co. v. Henderson, 419 So.2d 490 (La.App. 2d Cir.1982), writs denied 423 So.2d 1149, 1150 (La.1982), is based upon what is believed to be the legislative intent in recent amendments to C.C. arts. 208 and 209. The majority finds only an implication in Art. 209 that a child who enjoys legitimate filiation or is legitimated or formally acknowledged cannot institute a proceeding to establish filiation. The curtailment of remedies long denied and then allowed should not be denied again on an implication. The effect of the majority opinion is to make the presumption of C.C. Art. 184 virtually an irrebuttable one.

The interpretation given to Art. 209 by Succession of Levy, 428 So.2d 904 (La.App. 1st Cir.1983) was consistent with Art. 208 and with the humanitarian ideals given expression by the change in the jurisprudence governing the rights of illegitimates.

The unexpressed fear that a plethora of suits attacking titles will result from allowing Levy to continue to be effective is rendered invalid by the time limitations of Art. 209.

I cannot agree with the majority’s conclusion that the presumption of legitimate filiation to the husband of the mother has not been rebutted in view of the undisputed evidence of the absence of the husband in California from early 1955 for a period of ten years and of the testimony recounted below.

To prevail in their suit, plaintiffs have to prove, by a preponderance of the evidence, that David Branch was their actual father. I believe the trial court was clearly wrong in ruling that the plaintiffs failed to meet their burden of proof.

All the plaintiffs testified that during the lifetime of David Branch they had been informally acknowledged by him in a number of ways, including gifts of money, food, toys and clothes. In addition, he affirmed to others that the plaintiffs were his children. On several occasions when the plaintiffs were young children, they stayed weekends in the Branch home. They continued to visit in the Branch home and attend family gatherings on holidays and other occasions until Mr. Branch’s death. When the three older children were about nine or ten, Mrs. Branch called them all over to her house on a party occasion “to accept them” into her life.

The plaintiffs’ mother testified that when her husband, Albert Griffin, moved to California, she remained living in a house Mr. Branch owned. She had a continuous sexual relationship with him and paid him no rent. After the birth of the first three children, she moved a few blocks away but continued the sexual relationship at least until their fourth child was born.

Mrs. Griffin testified that although she and Mrs. Branch never discussed the children’s parentage directly, Mrs. Branch knew that her husband David was their father. Although she never visited in the Branch home, her children did so quite often, at the request of Mrs. Branch as well as their father.

At Mr. Branch’s funeral, an obituary handout was prepared by a funeral home employee, passed out at the funeral, and read aloud to the congregation at the funeral. An obituary was published in the newspaper. Both stated that Mr. Branch was survived by his four children, the plaintiffs. The testimony of witnesses for the defense on this matter followed two courses: (1) they either did not notice the obituary and did not see the handout nor hear it being read, or (2) they noticed but did not think anything of it and said nothing about it to Mrs. Branch or anyone else. This testimony is plainly unbelievable and obviously concocted.

Mr. Johnny Smith, the executor of Mrs. Branch’s succession, testified that he had no knowledge of who provided the information for the handout and obituary. According to him, neither Mrs. Branch nor any of her relatives made any comment about or objection to either.

We believe the trial court erred in refusing to consider as evidence the events which took place after the death of Mr. Branch. At time of trial, C.C. art. 209 had been amended and the evidentiary restriction in 209(5) had been removed.

In addition to the above, David Griffin testified that both at the funeral and the wake, he and his siblings sat next to Mrs. Branch. No one made any objections to their sitting with the other relatives of Mr. Branch. His two sisters rode in the limousine with Mrs. Branch at the end of the funeral, while he and his brother rode in another limousine. One defense witness admitted seeing the plaintiffs sitting in the “family seat” at the funeral, but all the other defense witnesses claimed not to have noticed who sat with Mrs. Branch and who left in the limousines afterward.

Mr. Edward Gaines, the funeral organist, testified that he prepared the handout and obituary, at Mrs. Branch’s request. She reviewed the information he put in both and approved the inclusion of the plaintiffs as her late husband’s children. He included in the handout a poem written by David Griffin about his father.

At Mr. Branch’s final illness, it was undisputed that Mrs. Branch called David Griffin and asked him to take her husband to the hospital, assisted by Mr. Branch’s nephew. David subsequently spent quite a bit of time with Mr. Branch at the hospital, even taking a leave of absence from work at one point. The physician who admitted and attended Mr. Branch and an attending RN both testified that they assumed David Griffin was Mr. Branch’s son, as he brought Mr. Branch to the emergency room, signed consent forms for treatment and tests, and spent a substantial amount of time with Mr. Branch .at the hospital.

I believe also that the trial court erred in refusing to admit and consider as evidence the hospital records, which included the consent forms as well as references to David Griffin in the nurses’ notes. LSA-R.S. 13:3714 provides that a certified copy of hospital charts or records shall be received into evidence as prima facie proof of its contents.

I think that the trial court erred in refusing to admit into evidence the AFDC records of Pearllina Griffin, put in on proffer by the plaintiffs. The records contain a crucial report by a caseworker of her interview with Mr. Branch on September 20, 1957, in which Mr. Branch made the admission that he had been “going with” Pearlli-na Griffin since the spring of 1955, and that he was the father of her three children, Thelma, David and Daisy (John had not yet been born). At the time of trial, the interviewing caseworker could not be found, but the custodian of records for the office of Family Security, Department of Health and Human Resources for the Parish of East Baton Rouge, testified that the case records, including the interview report, were official records of the State of Louisiana. I see no impediment to admission of a certified copy of the records under the “public documents” exception to the rule against hearsay. See State v. Nicholas, 359 So.2d 965 (La.1978); alternatively, they can be admissible under the “business records” exception. See Ziemba v. City of New Orleans, 411 So.2d 697 (La.App. 4th Cir.1982). The records are admissible for a relevant and proper purpose, and I see no indicia of unreliability in the report containing Mr. Branch’s admission against interest, admitting paternity.

      . No father is named on the birth certificate of Thelma White.

      . LSA-C.C. art. 184 provides:
      “The husband of the mother is presumed to be the father of all children born or conceived during the marriage.”

      . LSA-C.C. art. 208 provides:
      "In order to establish filiation, a child who does not enjoy legitimate filiation or who has not been filiated by the initiative of the parent by legitimation or by acknowledgment under . Article 203 must institute a proceeding under Article 209.”

      . See Footnote 2 supra.

      . LSA-C.C. arts. 198 and 200.

      . LSA-C.C. art. 203.

      . LSA-C.C. art. 209 provides:
      "A. A child not entitled to legitimate filiation nor filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must prove filiation as to an alleged living parent by a preponderance of the evidence in a civil proceeding instituted by the child or on his behalf within the time limit provided in this article.
      B. A child not entitled to legitimate filiation nor filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must prove filiation as to an alleged deceased parent by clear and convincing evidence in a civil proceeding instituted by the child or on his behalf within the time limit provided in this article.
      C. The proceeding required by this article must be brought within one year of the death of the alleged parent or within nineteen years of the child’s birth, whichever first occurs. This time limitation shall run against all persons, including minors and interdicts. If the proceeding is not timely instituted, the child may not thereafter establish his filiation.
      D. The right to bring this proceeding is heritable.”

      . For similar view, see Developments in the Law, 1980-1981 — Persons, 42 La.L.Rev. 403 (1982).

      . Art. 185. Presumption of paternity, date of birth
      "A child born less than three hundred days after the dissolution of the marriage is presumed to have been conceived during the marriage. A child born three hundred days or more after the dissolution of the marriage is not presumed to be the child of the husband.
      Art. 186. Presumption of paternity, negation

        "The husband of the mother is not presumed to be the father of the child if another man is presumed to be the father.”
      Art. 187. Action in disavowal, burden of proof
      "The husband can disavow paternity of a child if he proves by a preponderance of the evidence any facts which reasonably indicate that he is not the father.”
      Art. 188. Husband’s loss of right to disavowal
      "A man who marries a pregnant woman and who knows that she is pregnant at the time of the marriage cannot disavow the paternity of such child born of such pregnancy. If another man is presumed to be the father, however, then the provisions of Article 186 apply. The husband also cannot disavow paternity of a child born as the result of artificial insemination of the mother to which he consented."

      . LSA-C.C. art. 209 provides:

        "A. A child not entitled to legitimate filiation nor filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must prove filiation as to an alleged living parent by a preponderance of the evidence in a civil proceeding instituted by the child or on his behalf within the time limit provided in this article.

        "B. A child not entitled to legitimate filiation nor filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must prove filiation as to an alleged deceased parent by clear and convincing evidence in a civil proceeding instituted by the child or on his behalf within the time limit provided in this article.
      "C. The proceeding required by this article must be brought within' one year of the death of the alleged parent or within nineteen years of the child’s birth, whichever first occurs. This time limitation shall run against all persons, including minors and interdicts. If the proceeding is not timely instituted, the child may not thereafter establish his filiation.
      "D. The right to bring this proceeding is heritable.”

      . LSA-C.C. art. 208 provides:
      "In order to establish filiation, a child who does not enjoy legitimate filiation or who has not been filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must institute a proceeding under Article 209.”

      . C.C. art. 209(B) (added to by Act 720 of 1981), increasing the plaintiffs’ burden of proof in a filiation proceeding as to an alleged deceased parent by requiring "clear and convincing evidence”, was not effective until Sept. 11, 1982 and thus is not applicable to the instant suit.

      . In effect only from July 23, 1980 to Sept. 11, 1981, C.C. art. 209(5) provided, in pertinent part, that:
      "5. Proof of filiation must be made by evidence of events, conduct, or other information which occurred during the lifetime of the alleged parent.... ”

      . LSA-R.S. 13:3714 provides:
      Whenever a certified copy of the chart or record of any hospital in this state, signed by the administrator or the medical records librarian of the hospital in question, is offered in evidence in any court of competent jurisdiction, it shall be received in evidence by such court as prima facie proof of its contents, provided that the party against whom the record is sought to be used may summon and examine those making the original of said record as witnesses under cross-examination.


author: WATKINS, Judge.

text:
    BICKHAM PETROLEUM CORPORATION v. CONTINENTAL OIL COMPANY (CONOCO, INC.)
    No. 83 CA 0873.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.
    Chas. M. Cassidy, Franklinton, for plaintiff.
    R. Bradley Lewis, Bogalusa, for defendant.
    Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

Bickham Petroleum Corporation, appellant, brought the present action against Continental Oil Company (Conoco), appel-lee, to recover for alleged shortages in deliveries of gasoline by Conoco to Bick-ham, a jobber, between January 1, 1978 and January 31, 1979. However, the attempt to establish the alleged shortages was made solely through a comparison, by introduction of evidence, of the bills of lading made by Conoco and the sales slips made by Bickham as jobber in selling the gasoline (some of which, incidentally, was sold to the general public). However, some of the sales slips were missing, and the attempt made by Mrs. Elizabeth Bickham Ott, appellant’s bookkeeper, to explain the failure to produce all the sales slips was obviously without merit. She claimed sales slips for items other than gasoline were withheld deliberately from evidence, but yet over 500 slips reflecting sales other than for gasoline were introduced in evidence. The evidence showed that Bick-ham’s bookkeeping was not in accord with generally accepted accounting practices and apparently was very substandard. As a result, Bickham failed to establish that there was a shortage by a preponderance of the evidence. The trial court so found, assigning written reasons for judgment which we annex hereto, and we cannot say the finding of the trial court was clearly wrong or manifestly erroneous. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The appellee, Conoco, answered the appeal seeking damages for a frivolous appeal. However, in view of the extreme length and complexity of the record, we cannot say the appeal was frivolous. Capital Bank and Trust Co. v. Lacey, 411 So.2d 562 (La.App. 1st Cir.1982).

The judgment of the trial court is affirmed, at appellant’s cost.

AFFIRMED.

APPENDIX

BICKHAM PETROLEUM CORP.

vs

CONTINENTAL OIL COMPANY

PILED: _

NUMBER: 46,851

22ND JUDICIAL DISTRICT COURT

PARISH OF WASHINGTON

STATE OF LOUISIANA

DEPUTY CLERK

REASONS FOR JUDGMENT

Petitioner seeks to recover from defendant the price of petroleum products purchased by petitioner and allegedly not delivered by defendant. Petitioner operates a petroleum bulk plant in Franklinton, Louisiana and had a jobber’s franchise agreement with defendant for the delivery of petroleum products. Under this agreement, petitioner purchased regular, unleaded and premium gasoline and diesel fuel from defendant.

Prior to May, 1978, defendant delivered all the unleaded gas to petitioner while petitioner’s own trucks would transport the other fuel purchased by petitioner from the refinery.

Shortly before May, 1978, petitioner entered into an agreement with representatives from defendant whereby all of the petroleum products would be brought to petitioner in defendant’s transports under a “key-stop” arrangement. The first delivery of petroleum products under this agreement occurred in May, 1978 with the last delivery made sometime in February, 1979.

Under this key-stop agreement, defendant’s transports would deliver gas to petitioner at night. Defendant’s transport driver would pick up a meter ticket, often referred to as a bill of lading or GOSI, from the terminal where he originally got the petroleum product. After the driver dropped this product in petitioner’s tanks, a copy of this GOSI would be left for petitioner. In order to insure that defendant’s transport driver did not overflow petitioner’s tanks, it was the procedure for defendant’s drivers to measure petitioner’s tank before the petroleum was dropped with a stick in order to verify that there was enough room in the tank to accommodate that particular petroleum drop. This measuring process was not for control, but rather merely to insure that petitioner’s tanks were not overflowed by the petroleum drop.

Petitioner took an inventory of its stock in early January of 1979 and thought there was a 400-gallon shortage. Upon investigation in February, 1979, a representative of defendant discovered the shortage herein sued for.

In defense of this action, defendant filed an exception of no cause of action, alleging ex-delecto prescription of one year and an exception of prescription of one year based in contract. Defendant also claims petitioner has not satisfied the burden of proof imposed on it to recover on this claim. For purposes of this opinion, the exceptions of no cause of action and prescription are pretermitted.

The burden is on petitioner to establish its case by a preponderance of the evidence. A preponderance of evidence exists when the proof taken as a whole shows that the fact sought to be proved is more probable than not. Petitioner used circumstantial evidence at the trial of this matter to prove its case. Since petitioner based its case on circumstantial evidence, in order to carry the burden of proof, the circumstantial evidence must lead to the exclusion of other reasonable hypotheses with a fair amount of certainty. Maryland Casualty Company v. Trahan, 384 So.2d 819 (La.App. 4th Cir., 1980).

Walter Adams, a certified public accountant, after viewing petitioner’s sales journal, sales tickets and bills of lading or GOSI, testified that there was a shortage of 100,-104 gallons of petroleum products from June 1, 1978 through January 31, 1979. Calvin Brasfield, an accountant employee of Conoco, after examining petitioner’s sales tickets and the bills of lading or GOSI, determined there was a shortage of 102,015 gallons of petroleum products. Mr. Brasfield’s report covers a period from May, 1978 to February, 1979.

Petitioner alleges that representatives of defendant promised to make good any shortage which might occur under the key-stop arrangement. The record establishes that representatives of defendant asserted that defendant would make up all short-’ ages resulting from the fault of defendant’s employees.

Testimony establishes that petitioner’s bookkeeping procedures were not in accordance with regular accounting procedures. Petitioner had no daily or weekly reconciliations between its physical inventory and the amount shown on its records to have been bought and sold. This reconciliation was not performed until the end of 1978 or in early January of 1979. Although petitioner took monthly inventories, it did not reconcile its books on a monthly basis. Although petitioner measured the amount of petroleum product in its tanks on a daily method, these readings were only used to see if more gas was needed and then discarded. Petitioner had no internal accounting controls.

The record establishes that petitioner must have issued approximately 10,000 sales invoices covering products sold by it from January, 1978 through January, 1979. Petitioner relies on these invoices to establish the amount of petroleum products sold in order to arrive at the shortage. However, 413 of these sales tickets are missing. One of petitioner’s employees testified that she attempted to pull from the sales tickets introduced into evidence all tickets covering products other than gas. This testimony was offered to explain why some sales invoices were missing. However, this Court notices that over 500 sales tickets which did not reflect sales of fuel were in the sales invoices actually introduced in evidence. This Court is not satisfied that all of the sales tickets reflecting the sale of fuel are accounted for. This Court finds that a large number of these sales tickets are missing.

Several different drivers delivered this petroleum to petitioner. Lengthy testimony was presented concerning the procedures used by defendant in receiving petroleum from the refinery and dropping it into petitioner’s tanks. This Court can not find that the procedure used by defendant in receiving and delivering this petroleum was faulty.

In light of these missing sales tickets, this Court is not satisfied that petitioner has shown its loss. In addition, the record establishes that any petroleum actually lost could as easily have been stolen after delivery of these products to petitioner as before delivery. Petitioner had no internal accounting controls. Its bookkeeping procedures were so poor that this Court could not determine the cause of the alleged petroleum loss. Accordingly, this Court finds that the circumstantial evidence offered by petitioner fails to carry the burden of proof imposed upon it.

The expert fee of Walter Adams, CPA, is set at $300 and taxed as court costs. Court costs are to be paid by petitioner.

This Court will sign a judgment in accordance with these reasons when one is presented to it.

Franklinton, Louisiana this 17th day of January, 1983.

/s/ John W. Greene

JOHN W. GREENE, Judge

Division “D”


author: CRAIN, Judge.

text:
    Bruce Edward WESTLEY v. PRESSURE SERVICES, INC., Patco Rental Tools, Northwestern Insurance Company.
    No. 83 CA 0903.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.
    Clare Jupiter, New Orleans, for plaintiff and appellant.
    Joseph J. Weigand, Jr., Donna L. Cobb, Houma, for defendants and appellees.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

This is an appeal taken by Bruce Edward Westley (Westley) from a judgment of the trial court denying his claim for worker’s compensation benefits.

Westley injured his back on December 14, 1981, while helping another employee load a heavy adapter spool onto a truck. At the time of the accident, Westley was employed by Pateo Rental Tools (Pateo). Westley immediately reported the injury to his employer.

On December 28, 1981, Westley was seen by Dr. Gary Guidry, of Landry, Gary and Guidry, orthopaedists. Doctor Guidry diagnosed a lumbosacral strain and recommended lighter work duties. He also sent Westley to physical therapy. Westley was examined again on January 6, 1982, by Dr. Richard Landry, an associate of Dr. Gui-dry. Dr. Landry noted moderate muscle spasm and ordered a CAT (computerized axial tomogram) scan. Westley was seen again by Dr. Guidry on January 13, 1982. Dr. Guidry, after reviewing the CAT scan, noted a minimal bulge at L-5 which he did not feel was a herniated disc. He concluded the examination on this date was normal and advised Westley to return to his regular work duties. Dr. Guidry also noted that he felt Westley had sustained no permanent partial physical impairment as a result of this accident and injury.

Westley returned to work and worked continuously until March of 1982 when he was fired for reasons unrelated to his injury. Westley was subsequently hired by Cloverlay Rental Tools as a dispatcher.

On May 10, 1982, Westley was seen by Dr. John Watermeier. From the history Dr. Watermeier suspected a lumbar strain with a suggestion of lumbar neuritis. He recommended that Westley be hospitalized in the near future for diagnostic studies. Westley was given analgesic medication and an exercise program to use at his home. He was allowed to continue his job as a dispatcher.

Dr. Watermeier did not see Westley again until October 6, 1982. At this time Westley informed Dr. Watermeier that his condition had not improved and that he still had severe back pain with radiation into both legs. Dr. Watermeier recommended that Westley should not perform heavy labor.

Dr. Watermeier saw Westley again on November 1, 1982. Westley was given an injection of cortisone and was told to return in one week to review a CAT scan which Westley had recently obtained at the suggestion of Dr. Watermeier.

On November 15, 1982, Dr. Watermeier reported that the CAT scan indicated a bulging disc. He recommended Westley stop working and be admitted to the hospital for a discogram, nerve block and possible surgery. In a deposition taken on January 31, 1983, Dr. Watermeier stated it was his opinion that the need for hospitalization and possible surgery was caused by a work related accident.

Westley has not worked since November 15, 1982. Westley and his wife testified at trial that he wanted to undergo the tests recommended by Dr. Watermeier, but could not afford it. He filed suit for worker’s compensation on December 3, 1982. Trial on the merits was held February 14, 1983.

After trial on the merits, the trial judge took the matter under advisement and issued reasons for judgment April 6, 1983. In those reasons, the trial judge stated that:

While the medical testimony is somewhat contradictory the testimony and evidence presented fails to substantiate the fact that the Plaintiff sustained an injury which was the cause of any disability. No lost time from employment was proven and there was testimony to the fact that the Plaintiff worked at his regular job after the accident and performed his normal duties.
Since no disabling injury was proven the Court does not have to reach the issue of employer/employee status. However, it is noted that the evidence presented at the time of the trial was not sufficient to sustain the allegation that the Plaintiff was working for the Defendant.

Judgment was rendered May 20, 1983, dismissing the suit at Westley’s cost. It is from this judgment that Westley appeals alleging one assignment of error. Specifically, Westley alleges the trial court erred in finding that he failed to carry his burden of proving that he suffered a disabling injury arising out of and in the course and scope of his employment with PATCO.

The employee in a worker’s compensation proceeding has the burden of establishing the disability and its causal relation with the employment accident by a preponderance of the evidence. Allor v. Belden Corporation, 393 So.2d 1233 (La.1981).

The fact that Westley suffered a work related accident was undisputed. However, the trial judge concluded Westley failed to prove that he had suffered an injury which was the cause of any present disability.

A trial court may accept or reject an opinion expressed by a medical expert, depending on what impression qualifications, credibility, and the testimony of an expert makes on the court. Woods v. Petroleum Helicopters, Inc., 415 So.2d 978 (La.App. 1st Cir.1982).

Dr. Guidry, on behalf of himself and Dr. Landry, testified essentially that it was their opinion Westley had not sustained permanent partial physical disability as a result of the PATCO accident. Dr. Water-meier stated in his deposition that it was his opinion that Westley’s possible disability was caused by the accident. It was not improper for the trial judge to resolve this conflict in testimony in favor of Dr. Gui-dry.

In deciding whether an employee has proven his claimed disability, the totality of the evidence, medical and lay, must be considered. Woods v. Petroleum Helicopters, Inc., 415 So.2d at 982. It is the trial judge’s function to determine the weight which is to be accorded the medical and the lay testimony. Woods v. Petroleum Helicopters, Inc., 415 So.2d at 983.

The trial judge apparently believed the lay testimony of Gary Fitch, a co-employee, to the effect that Westley worked at his regular job after the accident and performed his normal duties. The trial judge also took notice of the fact that Westley failed to prove any loss time from employment from the time of the accident until November, 1982, when Dr. Watermeier advised him to stop working.

It is well established that on appellate review, the trial court’s factual findings as to disability are entitled to great weight and are not to be disturbed in the absence of manifest error. Woods v. Petroleum Helicopters, Inc., 415 So.2d at 983.

Upon review of the record, we find the trial judge did not commit manifest error in finding that Westley failed to show he sustained an injury with PATCO which was the cause of any claimed present disability.

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

AFFIRMED.

SHORTESS, J., dissents. Plaintiffs problem started with the accident and have progressed until he can’t work. His physician says he is disabled and wants to perform more tests. I think he should have the tests.

      . Westley was originally hired by Pressure Services, Inc. In mid-December, 1981, Pateo Rental Tools was split from Pressure Services, Inc. Thereafter, Westley claims he worked for Pateo Rental Tools.

      . As of January, 1983, Cloverlay had no employees.

      . Dr. Guidry testified at trial. The trial judge’s reliance on his testimony is governed by the manifest error rule. Dr. Watermeier testified by deposition. The manifest error standard is not applicable to testimony presented by deposition. Gould v. State, Louisiana Department of Corrections, 435 So.2d 540 (La.App. 1st Cir.1983), writ denied, 438 So.2d 1107 (La.1983).


author: SAVOIE, Judge.

text:
    Eugene DAWSON v. STATE of Louisiana, Through the DEPARTMENT OF CORRECTIONS.
    No. 83 CA 0920.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.
    Frank Dickinson, III, Baton Rouge, for plaintiff-appellant Eugene Dawson.
    Joseph E. Kopsa, Baton Rouge, for defendant-appellee State of Louisiana, Through Dept, of Corrections.'
    Before COVINGTON, C.J., and COLE, and SAVOIE, JJ.
   SAVOIE, Judge.

Plaintiff, Eugene Dawson, an inmate at the Louisiana State Penitentiary at Angola, appeals the dismissal of his suit against the State of Louisiana, through the Department of Corrections, for work-related injuries he sustained at the penitentiary.

Plaintiff was the operator of a blanking machine at the Tag Plant on January 6, 1977, when he injured two fingers on his left hand while trying to repair the machine.

The blanking machine is used to cut sheet aluminum in designated sizes to be used for license plates. It is powered by electricity and compressed air. Electrical power to the blanking machine is controlled by a switch located on a wall approximately 20 to 30 yards from the machine. Once the electricity is turned on, an inmate pushes the foot pedal to activate the machine. This causes a blade to fall, cutting the sheet aluminum being fed into the machine. With the foot pedal down, the blade goes up and down at intervals so that the proper license plate size is cut.

On the day of the accident, plaintiff placed a weight on the foot pedal to activate the cutting process. He was feeding the sheet aluminum when the machine jammed, causing a bolt in the machine to break. Plaintiff removed the weight from the foot pedal, pulled the broken bolt and was in the process of inserting a new bolt when the shaft fell, crushing his fingers.

A hearing was held before a commissioner of the Nineteenth Judicial District Court. After reviewing the hearing record, each party’s brief, and the commissioner’s recommendation, the trial judge found the machine to be defective. He further found that plaintiff was contributorily negligent and that such negligence was a bar to recovery. Accordingly, plaintiff’s suit was dismissed at his cost. Plaintiff appeals the judgment.

On appeal, plaintiff alleges that the district court erred:

(1) when it decided that plaintiff was contributorily negligent and such negligence barred his recovery; and
(2) in not granting judgment for plaintiff and not awarding damages for his physical damage, pain, and suffering, and loss of future wages.

The decision of the trial court in this case was based on a review of the record which is comprised of the transcript of testimony and evidence taken at the commissioner’s hearing. No new evidence was presented for the trial court’s consideration.

The general rule for appellate review of facts, manifest error as espoused in Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), is not applicable in this type of case. The basis for the Arceneaux rule is that the trial court (trier of fact) had the opportunity to observe the demeanor of the witnesses as they testified. Since the trial judge decided this case on the record, this court is in as good a position to evaluate the credibility of the witnesses and to resolve conflicts as was the trial judge. When evaluating a record rather than live testimony, we must determine as a fund-mental function of a reviewing court, the sufficiency and preponderance of the evidence. See Gould v. State of Louisiana, through the Department of Corrections, 435 So.2d 540 (La.App. 1st Cir.1983), writ denied, 438 So.2d 1107 (La.1983).

An employer has an obligation to provide its employees with a reasonably safe place to work. La.R.S. 23:13. The Department of Corrections owes prison inmates a similar duty to provide machinery and equipment which are safe for the tasks inmates are required to perform. Bridgewater v. State, through the Department of Corrections, 434 So.2d 383 (La.1983), and Gould v. State, through the Department of Corrections, supra.

It is clear from the record that the blanking machine, which has since been replaced, would occasionally jog up and down several times with the foot pedal off. The record reveals that this would occur several times a week. Further, the record is silent as to any attempt by the Department of Corrections to correct this malfunction. Both the hearing officer and the trial court found that the machine was defective. We agree with that conclusion.

Contributory negligence is defined as conduct which falls below the standard of care to which one should perform for one’s protection. Contributory negligence is determined by reasonableness of behavior under the circumstances. Bridgewater, supra.

Considering the circumstances of this case, we note the following facts. Plaintiff had worked with this machine from 1973 until January, 1977, without receiving any formal instructions on operation, repair or safety procedures. At the time of the accident, he was subject to the normal restraints of an inmate worker. When the machine broke, he attempted to repair it as was expected of the inmates. He knew of the machine's tendency to jog up and down, but did not turn the electrical power off at the wall switch. The power was turned off only when the inmates left for lunch and at the end of the day. The machine was also powered by an air compressor which furnished power to several other machines. In attempting the repair, plaintiff received assistance from his supervisor who neither turned the power off nor instructed plaintiff to turn it off.

From the foregoing facts, we find that plaintiff was not contributorily negligent. Plaintiff, in attempting to repair the machine, acted in the manner expected of him as an inmate. Any different actions would have subjected him to the displeasure of his superiors. We find unpersuasive the State’s contention that the accident would have been avoided had plaintiff turned the electrical power off at the wall switch since that would not have disengaged the air compressor which also powered the machine. Under those circumstances, we cannot find that plaintiff was contributorily negligent.

The hearing officer in this matter, Commissioner Norbert Rayford, made the following findings as to damages:

“Plaintiff testified that he experienced pain from the injury for about a month afterwards; that he had two (2) operations on his hand; that there is soreness and tenderness even now where the joint was fused; that he missed about a month to four (4) months of work and [sic] two (2) cents per hour; that he was put on light duty status after the accident but doing the same work; that he was a manual laborer before coming to prison; that he could not make a complete fist with the left hand; and, that he could lift weights under fifty (50) pounds and use tools without difficulty.
“Dr. Rave Fletes, the medical doctor at Angola, testified that plaintiff should have had no pain after the operation of fusion; however, that plaintiff complained of pain and there will be slight pain from the scar tissue around the digital nerve.
“The awarding of damages here is basically up to the discretion of the Court. A recommendation might be:
“Past pain and suffering. $2,500.00
“Future pain and suffering. 1,000.00
“Loss [sic] wages. 20.00
“Future wages . .00
“Physical damage. 5,000.00
“Total . $8,520.00
“These figures are based, respectively, upon the fact that plaintiff no doubt experienced pain at the time of the injury and during the operations; that there is and will be slight pain around the scar tissue; that plaintiff missed about four (4) months of work (he was working at time of the accident and no reason was presented that he would not have continued had the accident not occurred); plaintiff is still able to perform manual labor without difficulty and the injury should not affect his future earning capacity; and, that he does have partial loss of the fingers with resulting disfigurement.”

We find no error as to the commissioner’s findings on damages and adopt same as our own. Further, we accept Commissioner Rayford’s recommendations as to the amount of the award.

For the above and foregoing reasons, the judgment of the trial court is reversed and judgment is hereby rendered in favor of plaintiff, and against the State of Louisiana, through the Department of Corrections, in the amount of $8,520.00, together with interest from date of judicial demand. Costs are to be borne by the State of Louisiana, through the Department of Corrections, in the amount of Six hundred sixty-six and 22/ioo ($666.22) Dollars.

REVERSED AND RENDERED.