author: CHEHARDY, Judge.

text:
    Patricia COURTNEY v. WINN-DIXIE LOUISIANA, INC.
    No. 83-CA-578.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 6, 1984.
    Rehearing Denied March 16, 1984.
    Writ Denied May 4, 1984.

      Gordon Hackman, Boutte, for plaintiff-appellant.
    Dan R. Dorsey, River Ridge, for defendant-appellee.

      Before CHEHARDY, GRISBAUM and DUFRESNE, JJ.
   CHEHARDY, Judge.

This appeal originates in the Twenty-Fourth Judicial District Court, Division “0”, wherein the trial court judge dismissed plaintiffs claim for damages pursuant to the jury’s finding of no negligence on the part of the defendant. Plaintiff now appeals.

Plaintiff filed suit seeking damages for personal injuries that she allegedly sustained as a result of two slip and fall accidents, both occurring at Winn Dixie stores. The first fall was on Wednesday, March 18, 1981 at approximately 3:30 p.m. Plaintiff was shopping in the defendant store at 3408 Williams Boulevard in Kenner, Louisiana when she allegedly slipped on a piece of green leafy matter on the floor in the produce aisle. Then on August 16, 1981, while shopping at the defendant store located in the Colonial Shopping Center, Har-ahan, Louisiana, plaintiff slipped in an accumulation of water and fell.

After a trial on the merits, plaintiff moved for a directed verdict which was denied and the case was then submitted to the jury. The jury returned a verdict of no negligence on the part of Winn Dixie by replying “no” to the first question of the jury interrogatories. In accordance with the jury interrogatories, the jury answered no further questions.

After a reading of the verdict, plaintiff moved for a judgment notwithstanding the verdict which was denied. A motion for a new trial was then denied and plaintiff has appealed, raising the following specifications of error: that (1) The trial judge erred in failing to correct a clearly wrong jury verdict on no liability and the trial judge was clearly wrong in failing to grant a motion for a directed verdict on liability and comparative negligence and, likewise, in failing to grant the motion for a new trial or judgment NOV; that

(2)The trial judge erred in failing to require the jury to answer specific interrogatories, asking it to return only a general verdict; that

(3) The trial judge erred in allowing evidence of plaintiffs prior fall, rather than limiting the evidence to plaintiffs prior condition; that

(4) The jury and trial judge erred in failing to award damages to plaintiff; that

(5) The trial judge erred in failing to render written reasons for his denial of the motion for new trial, JNOV, as well as special jury interrogatories; and that

(6) The trial judge erred in allocating costs against plaintiff rather than considering the equities as required by law.

This court in Carollo v. Shoney’s Big Boy Enterprises, 433 So.2d 803 (La.App. 5th Cir.1983), adopted the law as to slip and fall accidents as summarized in Smith v. Winn Dixie Stores of Louisiana, Inc., 389 So.2d 900 (La.App. 4th Cir.1980) at page 901:

“The jurisprudence reflects the view that upon proof that a foreign substance was on the floor at the time the plaintiff entered the store; that the plaintiff stepped on this foreign substance; and that it caused her to slip, fall, and suffer injury, the burden shifts to the defendant to go forward with the evidence to exculpate itself from the presumption that it was negligent. The defendant, as store owner, can carry its burden by establishing that it was free from fault and that it exercised reasonable care in protecting its customers from foreign substances on the floor. Reasonable care is exercised when the store owner takes reasonable protective measures, including periodic inspections, in order to keep the floors and aisles free of substances or objects that may cause customers to fall. If the evidence presented is sufficient to establish that the store owner has carried its burden, then the presumption of negligence will be rebutted and the defendant will be exonerated from liability. (Citations omitted)
“.... One other rule which must be considered here is that the storeowner is not the insurer of the safety of its customers and further that it does not have to keep its entranceways, aisles and passageways in perfect condition.” (Citations omitted)

This court, in Carollo, supra at page 805, went further to adopt the following rule expressed in Hanzo v. Travelers Insurance Co., 357 So.2d 1346 (La.App. 4th Cir.1978) at page 1349:

“.... What is relevant to each case ... is that a reasonable effort is made to insure the patron’s safety under the circumstances .... ” (Citations omitted)

With these rules in mind, we now address appellant’s specifications of error.

At the close of the evidence, appellant moved in accordance with LSA-C.C.P. article 1810(A) for a directed verdict as to Winn Dixie’s liability and for a finding that plaintiff was not contributorily negligent. Appellant so moved on the grounds that there had been no regular inspections by store employees. This motion was promptly denied October 1, 1982.

The court in Oppenheim v. Murray Henderson Undertaking, 414 So.2d 868 (La.App. 4th Cir.1982) affirmed a motion for directed verdict made by plaintiff in a trial by jury. As to the proper standard, that court pronounced and we adopt the following:

“The standard for granting a directed verdict (Art. 1810(A) of the Louisiana Civil Code Procedure) was set out in Campbell v. Mouton, 373 So.2d 237 (La.App. 3rd Cir.1979), whereby the court stated:
‘[The statute allows] the judge to conclude the litigation (in a jury trial) if the facts and inferences are so overwhelmingly in favor of the moving party that the court believes that reasonable men could not arrive at a contrary verdict.’
The court, in Campbell, further states that the standard of proof is to be based on the Federal standard and cites the language in Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir.1969) in enunciating the state standard to be used:
‘On motion for directed verdict and for judgment notwithstanding the verdict that Court should consider all of the evidence — not just that evidence which supports the non-mover’s case — but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the .motions (sic) is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury.’ ”

We cannot say the trial court erred in failing to grant plaintiff’s motion for directed verdict in light of the above standard. After reviewing the record, we conclude neither party enjoyed a strong or overwhelming position as to the facts which would justify the granting of such motion.

Plaintiff’s testimony at trial stood uncorroborated and her credibility was continually attacked. It was plaintiff’s testimony that her husband witnessed her first fall while her youngest daughter witnessed the second. Not only did these two eyewitnesses fail to appear, but plaintiff made no attempt whatsoever to have them appear and testify on her behalf. As to plaintiff’s husband, she explained on cross-examination that she had not seen him for approximately eight months. When questioned as to why she failed to have her daughter appear on her behalf, plaintiff replied, “I didn’t see any sense in bringing her, you know. This happened when she was ten years old. And I didn’t think she would do — you know, she would be needed.” Plaintiff’s failure to call either of these people as witnesses, both of whom were the only purported eyewitnesses, raises the inference that their testimony would not have corroborated her story. Corollo v. Shoney’s, supra. We believe this inference to be strong as there is no indication whatsoever that these witnesses were unavailable at the time of trial.

As to the first fall, March 18, 1981, plaintiff testified that the fall was caused by her slipping on some green leafy matter. She testified when she hit it, she slid on it, rolling it into a ball and leaving green skid marks. Her account had the leafy matter rolled into a cylinder four inches long and not quite as thick as her little finger, and the skid marks were eight to ten inches long. Additionally, plaintiff testified that there was other debris on the floor: pieces of paper, dirt and artificial grass.

In contrast to the testimony of the plaintiff is the testimony of two Winn Dixie employees, Joseph Liggio and Jack Hayes. Mr. Liggio was called to the scene immediately after the accident. Upon his arrival, he observed a skid mark on the floor. He testified that at first he did not see anything, but when he got down real close to the floor on his knees, he was able to observe a skid mark. In contrast to the testimony of the plaintiff, he stated that this skid mark was about three inches long. In further contrast to the testimony of the plaintiff, Mr. Liggio stated that the substance on the floor was a smear and not a rolled up leaf. He further stated that there was no other debris or leaves on the floor. Also in contrast to the testimony of the plaintiff is the testimony of Jack Hayes, Winn Dixie’s store manager. He testified that he observed no skid marks. Mr. Hayes went on to testify about Winn Dixie’s safety and inspection procedures in that it is their policy that all employees are to observe conditions on the floor and are to clean up immediately any spills that might occur.

Gary Duffy, the produce manager at the store where the March, 1981 accident occurred, testified that he spends a lot of time on the floor in the produce aisle and that he had inspected the floor just prior to plaintiff’s fall. According to his testimony, the floor had been inspected and was free of any substance. While loading potatoes, he learned from Mr. Liggio that the plaintiff had slipped and fallen. When he then looked at the spot where the plaintiff said she had slipped, he first noticed nothing on the floor. He then said that when he looked closer he noticed what looked like a piece of cabbage about the size of a dime. He testified that this piece of cabbage had not been there moments before when he inspected the area. Further rebutting the contention of the plaintiff that she slipped on anything on the floor is the statement that Mr. Duffy said that a piece of cabbage he observed on the floor did not appear to have been stepped or slipped on. In further contrast to the testimony of the plaintiff, he testified that there were no skid marks on the floor.

Regarding the slip and fall plaintiff contends occurred in August, 1981, she testified that she slipped in a “big pile of water.” The testimony of the plaintiff as to the amount of water on the floor was contradicted by Sam Abate, Winn Dixie’s store manager at the time of this accident. In contrast to the statement of the plaintiff that there was a lot of water on the floor, he testified that the water was cleaned up with a few paper towels, inferring that there was not a lot of water on the floor. Further, there was no showing how the water got on the floor, how long it had been there, or where it had originated.

A motion for directed verdict would have been appropriate only if reasonable and fair-minded men in the exercise of impartial judgment could not have disagreed on the issue of defendant’s liability. In light of the testimony and evidence adduced at trial, we believe the trial court did not commit error in the denial of plaintiff’s motion for directed verdict. The liability issue presented relied upon whether Winn Dixie presented evidence sufficient to rebut the presumption of negligence, exonerating them from liability and the credibility of the witnesses which would determine whether a fall occurred in either accident. These are questions which the trial judge properly presented to the jury for resolution.

There is no reference whatsoever that a motion JNOV was ever made, orally or written. The only mention of such motion appears in the record (Volume 3, p. 274) as follows:

Request for Written Reasons for Judgment
Now comes plaintiff, through counsel, suggesting to the court under CCP 1917, plaintiff is entitled to the reasons for the denial of the Motion for a New Trial and the Motion for Judgment NOV, and that plaintiff requests the full reasons for denial of the Motion for New Trial and the failure of the court to give special jury interrogatories.

Other than the above reference, there is no evidence to substantiate appellant’s claim that such motion was ever made.

Appellant timely filed her motion for new trial on the peremptory basis that both the jury’s verdict and the signed judgment were clearly contrary to the law and evidence. LSA-C.C.P. article 1972(1). A hearing was held November 8, 1982; and on March 21, 1983, the trial court rendered judgment denying the motion, being of the opinion that the law and the evidence were in favor of the defendant as determined by the jury.

As explained earlier in our treatment of the trial court’s denial of the directed verdict motion, we agree with the trial court that the law and evidence both favor defendant. Accordingly, we find nothing in the record indicative of the slightest abuse by the trial judge in denying plaintiff’s motion.

Plaintiff, in accordance with LSA-C.C.P. article 1811(A), requested a special verdict in the form of a special written finding upon each issue of fact. Instead, the jury was given interrogatories in conformity with the mandatory requirements of LSA-C.C.P. article 1811(B). Appellant now asserts that the trial court’s failure to give the interrogatories she requested was error.

LSA-C.C.P. articles 1811 and 1812 are within the discretion of the trial judge. Brown v. Lykes Bros. S.S. Co., Inc., 422 So.2d 213 (La.App. 4th Cir.1982); Mulkey v. Aetna Casualty & Surety Co., 210 So.2d 897 (La.App. 1st Cir.1978). In the present case, the trial judge did submit special verdict interrogatories in accordance with LSA-C.C.P. article 1811(B). Appellant has failed to demonstrate and we can find no abuse of discretion in the trial judge’s decision not to give interrogatories as to each issue of fact.

Plaintiff filed a motion in limine to exclude evidence relating to an injury plaintiff received as a result of an earlier 1979 slip and fall accident. Although counsel acknowledged that medical evidence could be admitted to show plaintiff had a documented medical condition that could have been aggravated, he argued that because plaintiff had sustained two separate falls in Winn Dixie stores, the fact of an earlier fall would tend to prejudice the jury against her. This motion was denied.

During cross-examination, defense counsel questioned Dr. Nadell, an orthopedic surgeon, as to what sort of accident necessitated the 1979 cervical fusion. Plaintiff objected, but the question was allowed. The question and Dr. Nadell’s response are as follows:

“Q. Was it in ’79. Did she give you a history as to how that happened?
A. I believe she was pumping gas or something like that and she slipped and fell back and hit her breast and knee and ankle and neck and lumbar spine. Now that’s as far back as I go.”

Appellant has the burden of showing error. Ratcliff v. Levin, 175 La. 49, 143 So. 1 (1932). Appellant has failed to present to this court how the possible prejudicial effect of such testimony outweighed its relevance. Without determining whether this testimony should have been excluded, we find no error as we fail to see how this evidence, when compared to the record in its totality, had any substantial bearing on the verdict reached by the jury. Parker v. South La. Contractors, Inc., 370 So.2d 1310 (La.App. 1st Cir.1979).

Appellant next argues that under LSA-C.C.P. article 1917 the trial court should have complied with her request for written reasons for judgment, as well as for the denial of the motion for new trial, JNOV, and request for special jury interrogatories. The failure of the trial court to comply, appellant alleges to be error. We disagree.

As to the judgment, LSA-C.C.P. article 1917 requires the court to comply with a request to give written finding of fact, but in cases “other than those tried by a jury_” LSA-C.C.P. article 1917 is inapplicable in the instant case.

As to appellant’s motions under LSA-C.C.P. articles 1810, 1810.1 and 1811, we know of no statutory duty compelling the court to furnish such written reasons. Further, the appellant has failed to furnish any compelling reason why this court should encumber the trial court with a jurisprudential duty to do so. Accordingly, we find no merit to appellant’s alleged error.

Appellant also contends the trial judge erred in allocating costs against her rather than considering the equities as required by law. Appellant argues that LSA-C.C.P. article 1920 grants the trial judge discretion to allocate as he may consider equitable.

LSA-C.C.P. article 1920 is as follows:

“Unless the judgment provides otherwise, costs shall be paid by the party east, and may be taxed by a rule to show cause.
“Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.”

On review, a trial judge’s assessment of costs can only be reversed by this court upon a showing of abuse of discretion. Purcell v. State Farm Insurance Company, 417 So.2d 16 (La.App. 4th Cir.1982). We must note, however, that while it is the general rule to tax the party cast in judgment, the trial judge may assess the costs of a suit in any equitable manner. In some situations, the best interests of justice are served by casting the prevailing party with all costs. Indeed, in Stevens v. Allstate Insurance Co., 428 So.2d 834 (La.App. 5th Cir.1983), we affirmed a judgment in favor of Allstate, but assessed defendant with all costs of the jury trial. This court, through Judge Charles Grisbaum, Jr., at page 835 reasoned:

“... [w]e noted that La.C.C.P. art. 1920 permits a trial court to render judgment for costs against any party as it may consider equitable. We further recognize the wide discretion the trial judge has in these matters. Considering the overall circumstances of this case, we find no abuse has been shown.” (Citations omitted)

When considering the overall circumstances of this case (specifically that appellant is single, has one dependent, has not been employed for two and a half years prior to suit, that both the initial suit and subsequent appeal were filed in forma pauperis, and that it was defendant who requested the jury trial), we find the trial court’s discretion in assessing costs was abused. We find that equity, under the facts of this case, requires the prevailing appellee to pay all costs of the jury trial.

Accordingly, for the reasons expressed above, the jury’s verdict finding no negligence on the part of Winn Dixie is affirmed; however, that part of the judgment casting all costs against plaintiff is hereby reversed and all costs are assessed to defendant.

AFFIRMED IN PART; REVERSED IN PART.


source: Caselaw Access Project

author: GULOTTA, Judge.

license: Public Domain

text:
    Ruth Meisel, Wife of and Leon MEISEL v. NATAL HOMES, INC., et al.
    No. CA-1099.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1984.
    Richard D. Faulkner, New Orleans, for plaintiff-appellee.
    Michael A. Lombard, Metairie, for defendant-appellant.
    Before GULOTTA, GARRISON and LO-BRANO, JJ.
   GULOTTA, Judge.

In this action by homeowners for defective construction of their residence, the sole issue confronting us is whether an agent of the defendant building company is personally liable.

Plaintiffs Ruth and Leon Meisel sued Natal Homes, Inc. and Ronnie Natal for damages from various construction defects in a home purchased from Natal Homes, Inc. After trial on the merits, the court rendered a $5,078.00 judgment in favor of the Meisels together with $2,650.00 attorney’s fees and against both defendants in solido. We affirm that part of the judgment rendered against Natal Homes Inc. We reverse and set aside that part holding Ronnie Natal individually liable to the plaintiffs.

Although not contesting the liability of the defendant corporation or the quantum of damages, Ronnie Natal appeals the judgment insofar as it casts him personally liable. According to Natal, he bears no individual responsibility to plaintiffs because he acted at all times in the capacity of agent for the corporate defendant, and his status was clearly and unequivocally made known to them.

Ronnie Natal was vice-president of Natal Homes, Inc. during the relevant time period. He received a weekly salary as the company’s “superintendent”, but owned no stock in the corporation.

In the March 14, 1979 agreement to purchase the lot and home, Ronnie Natal signed: “Ronnie Natal V.P. Natal Const. Co. Inc.” A blueprint of the residence bore the inscription “NATAL HOMES”. Meisel testified that he purchased the home from “Natal Homes, Inc.”

Plaintiffs subsequently signed an act of sale with Natal Homes, Inc. A statement of closing costs, dated June 29, 1979, in connection with the passing of title, likewise bore the inscription “Natal Homes, Inc.”

During construction and after moving into the home, plaintiffs orally complained to Ronnie Natal of a number of defects. Their dissatisfaction was expressed in a July 14, 1979, letter addressed to “Natal Homes, Inc. State Contr. Lie. 9151”, with the salutation “Dear Ronnie”. In this letter, the Meisels took exception to the workmanship at the residence and stated “... to this time we are holding your company responsible, for damages and interest .... ” (Emphasis ours)

Plaintiffs subsequently complained to the Better Business Bureau, which attempted to have the parties arbitrate their differences. An “Arbitration Agreement” drafted by the BBB lists “Natal Homes, Inc.” and “Leon Meisel” as the parties. Arbitration never took place, however, and the instant litigation followed.

To avoid personal liability to a third person, an agent has the burden of proving he contracted not individually but as an agent, by disclosing his capacity and his principal’s identity to the other party. LSA-C.C. Arts. 3012 and 3013: Duckworth-Woods Tire Service, Inc. v. Smith & Johnson (Shipping), Inc., 430 So.2d 207 (La.App. 4th Cir.1983); Ruckman v. Mashburn, 428 So.2d 531 (La.App. 4th Cir.1983); and Regency Elec., Inc. v. Verges, 360 So.2d 252 (La.App. 4th Cir.1978). Express notice of the agent’s status and the principal’s identity is unnecessary, however, if acts and circumstances surrounding the transaction demonstrate affirmatively that the third person should be charged with notice of the relationship. Duckworth-Woods Tire Service, Inc. v. Smith & Johnson (Shipping), Inc., supra; Ruckman v. Mashburn, supra; J.T. Doiron, Inc. v. Lundin, 385 So.2d 450 (La.App. 1st Cir. 1980).

Applying these precepts to the instant case, we conclude that Ronnie Natal successfully carried the burden of proving his status as a corporate agent.

Significantly, Natal signed the agreement to sell the property to the Meisels as a corporate “vice president”, thereby expressly revealing his status as an agent. From this signature alone, the Meisels should have realized they were dealing with a construction company and not the individual acting as its representative.

Assuming no express disclosure took place, however, the circumstances of the dealings between the parties provided sufficient indicia of Natal’s agency status to put the Meisels on notice. Aside from the agreement to purchase, the house plans of the residence bear the inscription of Natal Homes. Perhaps the most telling circumstance, however, is the Meisels’ own letter of complaint to Natal Homes, Inc., in which they stated, “... we are holding your company responsible_” This evidence, coupled with Natal’s undisputed testimony that he owned no stock in the corporation and was acting as its compensated vice-president, leads us to conclude that the trial judge erred in holding Natal individually liable to plaintiffs.

We are not persuaded by plaintiffs’ argument that Natal’s promises to correct the defects in the home constituted a “personal guarantee” obligating him individually. Although plaintiffs testified that Natal had repeatedly assured them that he would take care of the problems, it is apparent from the context of the complaints and Natal’s responses that he was speaking in his role as corporate agent and executive officer of Natal Homes, Inc. We do not interpret his assurances to rectify the defects as his personal guarantee of individual performance. Nor can we say his attempts to satisfy plaintiffs constituted deliberate deception or fraud. See Automatic Coin Enterprises v. Vend-Tronics, 433 So.2d 766 (La.App. 5th Cir.1983). Under these circumstances, he is not personally liable.

The Meisels further argue that the corporate defendant is “apparently without assets” and that Natal individually should not be permitted “to hide behind” the “judgment proof” corporation to avoid liability. Significantly, however, the record does not indicate the financial status of the corporate defendant, nor is its solvency relevant to the legal question involved in this appeal. Although we are sympathetic to the frustration a victorious plaintiff might feel in obtaining a “paper judgment”, the insolvency of a corporate defendant does not provide a legal basis for holding its agent personally liable, where the plaintiffs have notice of the agent’s status and he conforms to it at all times.

Accordingly, the judgment, insofar as it casts Ronnie Natal liable individually to plaintiffs, is reversed and set aside. In all other respects, the judgment is affirmed.

REVERSED IN PART; AFFIRMED IN PART.

      . See also LSA-C.C. Arts. 3035 and 3039, dealing with suretyship.


author: GARRISON, Judge.

text:
    Jack FISHMAN v. Harriet Howard Wife of/and Joe HOWARD, State Farm Mutual Automobile Insurance Company and Maryland Casualty Insurance Company.
    No. CA 0285.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 17, 1984.

      Marvin C. Grodsky, New Orleans, for plaintiff-appellant.
    Robert J. Neal, New Orleans, for defendant-appellee.
    Before GARRISON, BARRY and BYRNES, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court granting to plaintiff damages in the amount of $15,000.00 under plaintiffs underinsured motorist coverage with Maryland Casualty Company. The trial judge provided the following written reasons for judgment:

“Maryland’s policy was issued on August 16, 1977, before the effective date of Act 623 of 1977. Although the policy period commenced September 13, 1977, after the effective date of the Act, the policy was a contract between the parties when issued, and could not be effected by subsequent legislation. Consequently the stacking prohibition of Act 623 is not applicable and the limits should be stacked.
The u.m. selection form admits of no interpretation other than the insured’s intent to purchase limits of 6/io thousand as in fact the policy provided.
All bills incurred for treatment contemplated within one year have been paid, and nothing further is due under the medical payments coverage of the policy.
Since the quantum of damages (sic) exceeds the insurance limits of $115,-000.00 judgment will be rendered against Maryland in the sum of $15,000.00”

From that judgment, which we reverse, plaintiff appeals.

FACTS

In 1974, Mr. Fishman had a policy of automobile insurance with Maryland Casualty Co. The policy provided for limits of $300,000.00. In September of 1974, Fish-man’s insurance agent sent him the form at issue in this case. Thereafter two additional vehicles were added to the policy, which was renewed at each subsequent anniversary date and through the date of the accident.

On December 2, 1977, plaintiff’s vehicle was “rear-ended” by a vehicle driven and owned by Harriet Howard. In conjunction therewith, plaintiff filed suit against Harriet Howard and her insurer, State Farm Mutual Automobile Insurance Co., as well as his U/M carrier, Maryland Casualty Co. Prior to trial, Harriet Howard and State Farm settled with plaintiff. Accordingly, the case went to trial solely against Maryland Casualty.

On appeal, plaintiff raises the following specifications of error:

1. The court erred in finding that “the uninsured motorist selection form admits of no interpretation other than the insured’s intent to purchase limits of 5/io thousand”.
2. The court erred in finding that the uninsured motorist selection form was unquestionable in light of plaintiff’s testimony.
3. The court erred in applying retroactively the 1975 amendment to LSA-R.S. 22:1406 which made uninsured motorist rejections or selections of lower limits applicable to subsequent renewals.
4. The court erred in finding that no further medical payments are due under the policy for treatment of injuries sustained in the accident but for which bills were not issued until after December 2, 1978, under a one-year limit contained in the policy.

I. The U.M. Selection Form

Plaintiffs insurance agent sent plaintiff the following form:

At the time that the form was sent, there was no “x” in the “5/10” box as presently appears above. Mr. Fishman signed the blank form and returned it to his agent. The agent put the “x” in the box next to the “5/10” limits.

Plaintiff did not check any of the boxes or otherwise indicate a choice to select liability limits higher, lower, or equal to the $300,000 policy that he maintained on his vehicle. The agent also dated the form “9/13/74”.

The trial court found that the form evidenced a clear intent of plaintiff to select lower limits. We do not agree. First it should be noted that there is no check, “x” or other evidence of selection on any of the three main subdivisions on the form. Secondly, Mr. Fishman made no selection.

Act No. 154 of 1974 amending R.S. 22:1406 provided as follows:

“Section 1406. Specific duties of casualty and surety insurance division
D. (1) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underin-sured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom; provided, however, that the coverage required under this section shall not be applicable where any insured named in the policy shall reject the coverage or selects lower limits.
(2) For the purposes of this coverage the term uninsured motor vehicle shall, subject to the terms and conditions of such coverage, also be deemed to include an insured motor vehicle when the automobile liability insurance coverage on such vehicle is less than the amount of damages suffered by an insured and/or the passengers in the insured’s vehicle at the time of an accident, as agreed to by the parties and their insurers or as determined by final adjudication.” (emphasis added)

In the instant case, Fishman neither selected nor rejected. By the terms of the Act, as well as by Maryland’s own recitation on the form, the policy must be deemed to have been issued with UM coverage equal to “the limits of bodily injury liability provided by the policy.”

We further note that the form at issue is clearly ambiguous and as such should be construed against Maryland. Accordingly, we find that the trial court committed an error of law on this issue.

II. Retroactivity

In light of our discussion on the above issue, the question of retroactivity is no longer an issue and will not be discussed.

III. Liability

Although neither side has briefed this issue, this Court, after thorough examination of the record before us realizes that there has been no evidence presented on the question of negligence/liability. Mr. Fishman’s testimony deals with the form, medical aspects, and quantum, but there is no testimony on how, where or by whose fault the accident occurred. Neither Harriet Howard, Joe Howard, or Lionel Royal were called to testify.

The only “testimony” dealing with the negligence/liability aspects is found in statements by the attorneys, prior to the time when the first witness, Mr. Fishman, was called:

“MR. THOMPSON:
My name is Jim Thompson representing Harriet Howard, Joe Howard and State Farm. And Mr. Birdsall is here representing Lionel Royal and it has been agreed upon between the parties that we have reached a compromise settlement of this case in the amount of $40,000 to be paid by State Farm Mutual Automobile Insurance Company in exchange for a complete receipt and release, releasing Harriet Howard, Joe Howard and State Farm as well as a complete motion to dismiss with prejudice. And the documents will be forthcoming in the near future. Thank you, sir.” (Tr. p. 2)
“Mr. Neal:
Defendants will stipulate that on December 2nd, 1977, Mr. Jack Fishman was operating a 1969 Cadillac owned by him when this vehicle was struck in the rear approximately 3:30 p.m. on Interstate 10 Highway near the Cleveland Avenue exit. I think that would suffice as far as the facts were concerned.” (Tr. p. 3).
“Mr. Neal:
It is further stipulated between counsel for the purposes of this record that Mr. Fishman has settled his case with the primary liability carrier, that is, the carrier of Harriet Howard.
Mr. Grodsky:
That being State Farm.
Mr. Neal:
Which is State Farm Mutual Automobile Insurance Company and has settled with that Company for their full policy limit of $100,000. Further, I would like at this time to offer and introduce and file into evidence a certified copy of the policy of insurance issued to Jack Fishman marked for identification as Maryland No. 1.” (Tr. p. 4).

It has repeatedly been held that a settlement or compromise is not an admission of liability. Belanger v. Employers Mut. Liab. Ins. Co. of Wise., 159 So.2d 500, (La.App. 1st, 1963) writ denied 162 So.2d 8, 245 La. 949 (1964); Broussard v. State Farm Mut. Auto. Ins. Co., 188 So.2d 111 (La.App. 3rd, 1966) writ denied 190 So.2d 233, 249 La. 713, (1966) cert. denied 386 U.S. 909, 87 S.Ct. 855, 17 L.Ed.2d 783. Launey v. Thomas, 379 So.2d 27 (La.App. 3rd, 1979) writ denied 381 So.2d 1233 (1980); Herbert v. Ordoyne, 388 So.2d 407 (La.App. 1st, 1980). The written compromises later filed into the record of this matter do not admit liability or negligence.

State Farm, the insurer of Harriet Howard and Joe Howard denied liability in its answer filed January 31, 1979. Additionally, Maryland Casualty Co. generally denied liability, specifically alleged that the sole and proximate cause of the accident was the negligence of Jack Fishman, alternatively alleged that Fishman was eontributo-rily negligent, and lastly asserted a third-party demand against the Howards and their insurer. Finally, on July 10, 1980 Maryland’s motion to dismiss with prejudice its third-party demand against the Howards and State Farm was granted.

The trial judge impliedly ruled on the question of negligence because his award of $15,000.00 presupposes a finding of negligence for which liability attaches. Other than Mr. Neal’s statement at page 2 of the transcript quoted above, there is no evidence on which a finding of negligence could be based. Thus, it falls upon this court to determine if Mr. Neal’s statement is an admission of liability. We find that it is not such an admission by its plain import.

In the absence of any proof, we can only conclude that the trial court committed an error of law in assuming liability.

Accordingly, this issue will be remanded to the trial court for further evidence or a stipulation on this issue.

Because the medical payments provision of the policy is independent of any negligence assessment, we will address that issue next.

IV. Medical Expenses

Plaintiff argues that the trial court erred in failing to award damages for medical expenses charged or billed after December 2, 1978. Plaintiff’s policy contained the following provision:

“Coverage C — Medical Payments: To pay all reasonable expenses incurred within one year from the date of the accident for necessary medical, surgical, x-ray and dental services, including prosthetic devices, and necessary ambulance, hospital, professional nursing and funeral services.” (Emphasis added)

In the instant case, plaintiff consulted Dr. John E. Linder four days after the accident for pains in the left leg, buttocks, neck and lower back, diagnosed as acute cervical-thoracic-lumber sprain and a possible ruptured disc. He was treated by Dr. Linder with ultrasonic therapy, analgesics, muscle relaxants, and home heat treatments through February 15, 1978. At the time of discharge, plaintiff still experienced occasional pain. Dr. Linder further stated that he told plaintiff that intermittent pain would occur as plaintiff is elderly and degenerative arthritis changes are normal in someone his age. No x-rays were ordered while plaintiff was under Dr. Linder’s care.

On July 2, 1979, plaintiff, who was still suffering from pain in the left leg, consulted Dr. Nick J. Accardo who diagnosed asceptic necrosis at the head of the left femur. Dr. Accardo testified that while the range for manifestation of asceptic necrosis may be as long as from two months to two years, it is normally manifest within three months of the accident, although symptoms indicating that “something” is wrong will occur immediately. Dr. Accardo testified that he believed the symptoms of asceptic necrosis were manifest from the date of the accident, although he did not wish to criticize the diagnosis of another doctor. Dr. Accardo further testified that plaintiff suffered from severe as-ceptic necrosis which would not benefit from conservative treatment. Accordingly, he recommended a surgical total hip replacement, which was performed on August 22, 1980. The language contained in plaintiff’s policy is the exact same language found in Valladares v. Monarch Insurance Co., 282 So.2d 569, 572 (La.App. 4th, 1973). In Valladares, this court found that an expense was “incurred” within one year from the date of the accident where:

(1) the injury manifests itself within one year of the accident,
(2) the insurer is aware of the nature of the injury,
(3) the insured approaches a physician and obtains a diagnosis and recommended course of treatment prior to the expiration of one year from the date of the accident, and,
(4) the treatment cannot successfully be completed within the one year period.

Maryland argues that no medical payments are owed under Valladares and its progeny because:

“(1) appellant complained of left leg pain when seen by Dr. Lindner, therefore it is possible the injury manifested itself within one year, however,
(2) the only injury Maryland was aware of was a soft tissue injury to the back treated by Dr. Lindner and Dr. Lindner was not aware of the nature of the leg injury,
(3) the diagnosis and recommended surgery was not until 17 months following the accident, and,
(4) had Mr. Fishman consulted a specialist timely, in all likelihood the diagnosis would have been made within one year whether the surgery would have been performed within one year or not.” (Maryland’s Brief, P. 9-10)

We do not agree. Maryland tentatively concedes that the injury manifested itself within one year. Based upon Dr. Acear-do’s testimony, we agree on that point.

On point number two, Maryland argues that it was not aware of the nature of the injury, as it believed the injury was a soft tissue one. We note that neither the injured party nor his physician at that time knew the true nature of the injury. Accordingly,- there was no one with that knowledge to inform Maryland. We find that criteria number two under Valladares, does not require an exact diagnosis. The purpose of this provision is to give notice to the insurance company that an injury exists, where such notice is practical. In the instant case, Maryland was notified that an injury existed and was given the diagnosis available at the time. We find that criteria number 2 was met in light of the facts as they existed at the time of notification.

Criteria number 3 under Valladares is “the insured approaches a physician and obtains a diagnosis and recommended course of treatment prior to the expiration of one year from the date of the accident.” In the instant case, plaintiff approached Dr. Lindner, obtained a diagnosis, and recommended course of treatment. Unfortunately, the diagnosis and course of treatment prescribed were not exactly “on target.” This court realizes that the practice of medicine is an art and not a science. We further recognize that symptoms may indicate a number of possible different diseases or injuries and that diagnosticians sometimes face a difficult task in isolating which condition does in fact exist and which symptom is only masking another symptom or condition.

In the instant case, the diagnosis obtained was not correct, however we do not think that a plaintiff-layman should be held to the same standard of knowledge as a diagnostician. Plaintiff met the requirements of criteria number 3, however the diagnosis obtained was incorrect.

Maryland argues “had Mr. Fishman consulted a specialist timely” a correct diagnosis would have been made within a year. Based on Dr. Accardo’s testimony that Mr. Fishman’s asceptic necrosis existed as a result of and from the time immediately after the accident, Maryland’s argument is probably a fairly accurate factual supposition. There is, however, no requirement that plaintiff consult a specialist in addition to the treating physician he had already consulted. Dr. Linder told plaintiff that although his treatment was completed, plaintiff would continue to suffer intermittent pain and plaintiff had a right to rely upon his physician’s judgment. It is incumbent upon the treating physician to recommend consultation with a specialist, where in the exercise of his professional judgment, the treating physician deems it necessary. We further note that any communications between plaintiff and Dr. Lindner are subject to the physician-client privilege and as such are personal defenses to the plaintiff which may not be raised by the insurer.

Accordingly, we find the policy covers plaintiff’s later surgeries and expenses in conjunction with and related thereto, but for a bill for $490.00 from Dr. Dorsey W. Dysart as is discussed below. Accordingly we find that plaintiff is owed $22,-510.00 in medical payments.

V. Dr. Dysart’s Bill

Dr. Dorsey W. Dysart was consulted by plaintiff on January 23, 1979 for neurological evaluations. Dr. Dysart was not called as a witness at the trial. There is scant evidence of Dr. Dysart contained in the record. Accordingly, this court does not know whether plaintiff was referred to Dr. Dysart by Dr. Accardo in conjunction with the surgery or whether the consultation is related to the instant accident in any way whatsoever. Due to the lack of evidence contained in the record, we find that plaintiff failed to prove that Dysart’s bill was “incurred” as required under Valla-dares, above.

VI. Attorney’s Fees and Penalties on Maryland’s Failure to Pay

A. Failure to Pay under Medical Coverage (C)

R.S. 22:657(A) provides as follows:

“A. All claims arising under the terms of health and accident contracts issued in this state, except as provided in Subsection B, shall be paid not more than thirty days from the date upon which written notice and proof of claim, in the form required by the terms of the policy, are furnished to the insurer unless just and reasonable grounds, such as would put a reasonable and prudent business man on his guard, exist. The insurer shall make payment at least every thirty days to the assured during that part of the period of his disability covered by the policy or contract of insurance during which the insured is entitled to such payments. Failure to comply with the provisions of this Section shall subject the insurer to a penalty payable to the insured of double the amount of the health and accident benefits due under the terms of the policy or contract during the period of delay, together with attorney’s fees to be determined by the court. The district court of the parish where the insured lives or has his domicile shall have jurisdiction to try such cases.”

Plaintiff argues that under the above quoted statute, he should be awarded penalties and attorney’s fees.

Maryland’s interpretation of its policy in light of the Valladares criteria was a valid one, which we might add was very well presented. Although this court did not agree with Maryland’s argument, it was a valid argument. If this court had agreed, then under its policy Maryland would have only owed Dr. Lindner’s bill of $375.00, which had already been paid. Although Maryland's policy provision has been previously interpreted, it has not been interpreted in the context of an erroneous diagnosis. The insurer has a right to rely on its defenses and Maryland had a right to test its interpretation before this court when there is no prior interpretation dealing with an erroneous diagnosis. Accordingly, we cannot conclude that Maryland acted arbitrarily, capriciously, and unreasonably in failing to pay for the additional medical bills under Coverage C of the Medical Payments Provision.

B. Failure to Pay Under Uninsured Motorist Coverage (G) and

R.S. 22:658, Quantum; Stacking

Because of this court’s prior finding on the negligence/liability aspect, it would be inappropriate to discuss this issue, as well as the issues of quantum and stacking.

For the reasons discussed, the judgment of the district court is reversed and the case is remanded for further proceedings not inconsistent with the findings herein.

REVERSED AND REMANDED.

      . Act 154 of 1974 was approved by the Governor on July 9, 1974.

      . Upon seeing the name "Lionel Royal” this court realized that from the record before us, we had no knowledge of who Lionel Royal was or how he was connected to the instant case. He was neither a party nor a witness and his name was not mentioned in any other place in the entire record.

        Upon examining the front page of' the first volume of testimony, this court noticed the language "Consolidated with No. 78-00480.” No motion or order to consolidate was contained in the record before us. Upon its own motion, this court ordered the record in Civil District Court Case No. 78-00480 and discovered the following.
      Lionel Royal was a guest passenger in the vehicle driven by Jack Fishman. Additionally, Royal was an employee of Fishman’s Cottman Transmission franchise. Apparently Fishman and Royal were on a business errand when the accident occurred. Royal’s petition failed to allege that his injuries were the result of Fish-man’s negligence, hence Fishman was dismissed as a party defendant. Additionally, the petition failed to assert a cause of action against Cott-man and Cottman was also dismissed as a party defendant leaving only the Howards and their insurer, and Maryland Casualty Co., Mr. Fish-man’s U.M. insurer. The two cases were consolidated prior to trial and Lionel Royal’s suit was compromised prior to the time when the first witness took the stand, as quoted above. On August 5, 1980 a joint motion to dismiss by Lionel Royal and Maryland on the basis of settlement was granted in No. 78-00480.
      Upon our independent examination of the record in Case No. 78-00480, we find no admission of or stipulation to liability and no evidence on the question of negligence.

      . The trial judge who handled this matter is an astute judge and this court fears that perhaps an informal agreement to stipulate to or admit liability was made and was inadvertently omitted from the record. We note that a number of exhibits were lost and had to be stipulated to in this court.

      . Counsel for plaintiff further states in his brief that some seven months later, plaintiff was readmitted to the hospital for repositioning and recementing of the implanted prosthesis.

      . Plaintiff and defendant stipulated plaintiff’s medical bills to be $23,000.00. $23,000.00-$490.00 = $22,510.00.


author: CULPEPPER, Judge Pro Tern.

text:
    Caleb SHORTS, et al., Plaintiffs-Appellees, v. Andrew DANIEL, et al, Defendants-Appellants.
    No. 16011-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 21, 1984.

      Watson & Watson by Philip B. Watson, Jr., St. Joseph, for plaintiffs-appellees.
    Sturgeon, Gore & Gremillion by John Sturgeon, Ferriday, for defendants-appellants.
    John D. Crigler, St. Joseph, for any unknown Heirs of Mose Gwinn.
    Before MARVIN and JASPER E. JONES, JJ., and CULPEPPER, J. Pro. Tern.
   CULPEPPER, Judge Pro Tern.

In this suit for declaratory judgment to have six plaintiffs declared to be the owners of immovable property located in Ten-sas Parish, eleven defendants appeal an adverse judgment. The pivotal issue presented in this appeal is whether as a matter of law, the defendants are entitled to participate in a succession through the legal fiction known as “representation”. Finding no error in the trial court’s ruling for the reasons hereinafter assigned, we affirm.

FACTS

The factual posture of this case is not in dispute. Mose Gwinn and Ann Lewis Gwinn were married on April 25, 1901 in Tensas Parish, Louisiana. No children were born of the marriage, and Mose Gwinn had no other children. However, Ann Lewis Gwinn was the mother of two children, Haywood Daniels and Henry Daniels, both of whom were born prior to her marriage. There is no evidence that Ann Lewis Gwinn was married to the father of her children, who both predeceased their mother, Henry without issue, and Haywood with four children, namely, Andrew Daniel, Annie Lee Daniels, Josephine Daniels James Meredith and Mary Daniels Williams.

By deed dated September 23, 1929, and October 3, 1929, Mose Gwinn, while married to Ann Lewis Gwinn, acquired the following property from S.M. Seaton:

All that portion of Sec. 34, Township 11 North, Range 11 East lying North and West of Fox Lake, containing 123.00 acres, more or less, said land being a part of the OSCELOLA Plantation and fully described by plat of survey of same made by J.W. Babbitt, Registered Engineer, in Aug., 1929, which said plat was recorded on November 4, 1929 in Notarial Book “W”, page 22.

Ann Lewis Gwinn died intestate, domiciled in Tensas Parish, Louisiana in 1962. Mose Gwinn died intestate on July 3, 1966. Mose Gwinn was one of six children of the marriage of Martin Gwinn and Keziah Hays. Jim Gwinn and Gertrude Gwinn Honeywood, his brother and sister, predeceased him without issue. Another sister, Fannie Gwinn, and her issue predeceased him as did another sister, Mamie, who died without issue.

His remaining sister, Rosie Gwinn Cooper, (aka Rosa Gwynne Cooper) predeceased him on October 6, 1963. She had been married one time to Abraham Cooper. Although she and her husband separated prior to the birth of her four children, there is no evidence of a divorce or the death of Abraham Cooper prior to the birth of these children, who are Caleb Shorts and Irene McKinney, now living; Annie Bell Robinson, who predeceased her mother on May 8, 1961, leaving one child, Moses Strange; Beatrice Robinson, who also predeceased her mother and was the mother of one child, Roosevelt Turner, who died without issue; and Nathaniel Shorts, who died June 10, 1979, leaving three children, Nathaniel Shorts, Jr., Mateal Shorts Porchay and Mamie Shorts Kennedy, all issue of his marriage to Lizzie Johnson.

The relationships between all of the above named individuals are more fully depicted on the diagram set forth below:

TRIAL COURT’S RULING

After considering all of the evidence, the trial court found that after the death of Ann Lewis Gwinn, Mose Gwinn continued in possession of the entirety of this land and its improvements which had belonged to the community of acquets and gains existing between them thereby tacitly accepting the succession of his wife. The trial court further found that while it was established that Abraham Cooper was not the biological father of the children of Rosie Gwinn Cooper, these children were presumed to be his under the provisions of La.C.C.Art. 184 as it applied at the time of their births. From these facts, the trial court concluded that Mose Gwinn inherited his wife’s portion of the community property to the exclusion of the descendants of her natural children and that the sole heirs of Mose Gwinn were the plaintiffs, whom it declared to be the owners of the property in question.

SPECIFICATION OF ERROR

While assigning no specific errors, it is defendant’s contention that upon the death of Ann Lewis Gwinn, her community interest in the property passed to them by virtue of the provisions of La.C.C.Art. 915:

When either husband or wife shall die, leaving neither a father nor mother nor descendants, and without having disposed by last will and testament of his or her share of the community property, such undisposed of share shall be inherited by the surviving spouse in full ownership. In the event the deceased leave descendants, his or her share in the community estate shall be inherited by such descendants in the manner provided by law. Should the deceased leave no descendants, but a father and mother, or either, then the share of the deceased in the community estate shall be divided in two equal portions, one of which shall go to the father and mother or the survivor of them, and the other portion shall go to the surviving spouse, who, together with father or mother inheriting in the absence of descendants, as provided above, shall inherit as a legal heir by operation of law, and without the necessity of compliance with the forms of law provided in this chapter for the placing of irregular heirs in possession of the successions to which they are called.

In support of their position, they cite the case of Brooks v. House, 168 La. 542, 122 So. 844 (1929), which held that the acknowledged illegitimate children of the wife born before her marriage and not issue of the husband, inherit her share of the community property to the exclusion of the surviving husband. They argue that “descendants” as utilized in La.C.C.Art. 915 is not limited to legitimate children but as contemplated within the definition of legal heirs in La.C.C. Art. 887, includes “children and other lawful descendants”. Further cited in support of their position are La. C.C. 917 and 918, both of which modified the term “descendants” with the term “lawful”, all of which according to defendants indicates that the use of the word descendants is a much broader term than that contemplated by La.C.C. Art. 3556(8):

8. Children. — Under this name are comprehended, not only the children of the first degree, but the grandchildren, great-grandchildren, and all other descendants in the direct line.
Natural children, even though recognized, make no part of the children properly so called, unless they have been legitimated.

Based on the foregoing interpretation, defendants argue that they, as the descendants of Haywood Daniels, are entitled to be adjudicated owners of an undivided one-half interest in the property in question. We do not agree.

This is an action for a declaratory judgment. La.C.C.P. Art. 1871 et seq. The burden of proof in such actions is stated in pertinent part in La.C.C.P. Art. 3654:

When the issue of ownership of immovable property or of a real right therein is presented in an action for a declaratory judgment, * * * the court shall render judgment in favor of the party:
(1) Who would be entitled to the possession of the immovable property or real right therein in a possessory action, unless the adverse party proves that he has acquired ownership from a previous owner or by acquisitive prescription; or
(2) Who proves better title to the immovable property or real right therein, when neither party would be entitled to the possession of the immovable property or real right therein in a possessory action.

In the present case, neither side has alleged nor argued that they are in possession. However, the evidence shows that Nathaniel Shorts had corporeal possession until shortly before his death in 1979, and that since that time and until this suit was filed one Preston Lane, has had an agricultural lease from the Shorts to whom he has paid rent. Thus, the plaintiffs are in possession, LSA-C.C.P. Articles 3658 and 3666, and would prevail in a possessory action. And, defendants have the burden under LSA-C.C.P. Article 3654(1) to prove they acquired ownership, not just a better title, either from a previous owner or by acquisitive prescription. In this case both sides claim ownership by titles traced to a common author, Ann Lewis Gwinn, so she is presumed to be the previous owner, LSA-C.C. Article 532. As against plaintiffs who are in possession, defendants have the burden to prove acquisition of ownership traced to Ann Lewis Gwinn.

Defendants seek to establish their ownership of the property because they are the descendants of an acknowledged illegitimate child of Ann Lewis Gwinn. It is clear under the present state of the law, that acknowledged illegitimates have been accorded certain rights of inheritance. Succession of Brown, 388 So.2d 1151 (La.1980). However, these rights have been limited to those rights which accrued after the effective date of the 1974 Louisiana Constitution, January 1, 1975. Succession of Clivens, 426 So.2d 585 (La.1982).

Because the date of the death of Ann Lewis Gwinn was prior to the effective date of the 1974 Constitution, the law in effect at the time of her death determined who inherited her interest in this property. See Succession of Clivens, supra, Succession of Davis, 126 La. 178, 52 So. 266 (1910). Because the only manner in which defendants could have acquired an interest in this property was through the legal fiction known as “representation”, the issue becomes whether or not irregular heirs were entitled to participate by representation in a succession in 1962. We conclude that they were not.

In Hawkins v. Williams, 146 La. 529, 83 So. 796 (1920), the court stated:

Though the Code recognizes the relation between natural children and the parent who has acknowledged them, and recognizes the relation between or among natural brothers and sisters, it does not recognize a relation between grandparents and natural grandchildren, or between grandparents and the children of their natural children. The rule that, under the designation “children,” are included the more remote direct descendants, does not apply to natural children. That is explained in the second paragraph of the definition No. 8, in article 3556 of the Code, explaining the terms used in the Code, viz:
“8. Children. — Under this name are comprehended, not only the children of the first degree, but the grandchildren, great-grandchildren, and all other descendants in the direct line.
“Natural children, even though recognized, make no part of the children properly so called, unless they have been legitimated.”
“Representation,” as defined in article 894 of the Code, “is a fiction of the law, the effect of which is to put the representative in the place, degree and rights of the person represented.”
But this fiction of the law, called “representation,” is dealt with only in the eight articles (894 to 901, inclusive) comprising a separate section (section 2) of chapter 2, treating only “Of Legal Successions,” or successions devolving upon legal or legitimate relations, in title 1, “Of Successions.” That title is divided into 13 chapters, which are subdivided into sections; thus: Chapter 1 treats “Of the Different Sorts of Successions and Heirs: and (by article 875), divides them into three classes: (1) “Testamentary Successions; (2) Legal Successions; and (3) Irregular Successions.” Chapter 2 treats “Of Legal Successions,” those falling to lawful descendant, ascendant, or collateral relations, and is divided into five sections, viz.: (1) General Rules; (2) Of Representation; (3) Of Successions Falling to Descendants; (4) Of Successions Falling to Ascendants; and (5) Of Successions Falling to Collaterals. And chapter 3 treats only “Of Irregular Successions,” or successions descending to or from acknowledged illegitimate children, or to a surviving husband or wife, or to the state.
The arrangement, therefore, of the subjects dealt with under the title “Of Successions” leaves no doubt that this fiction of the law, called “representation” does not apply to irregular successions.
The reason why representation is not allowed in irregular successions, but only in legal successions, is very plain. The right of possession, or seisin, of an estate, under articles 940, 941, 942, 943 and 944, is acquired only by legal heirs, testamentary heirs, instituted heirs, and universal legatees, not by irregular heirs. The doctrine, le mart saisit le vif, has no application to irregular successions. An irregular heir, a natural child or survivor, husband or wife, inherits only a right of action to be judicially recognized as an heir and to obtain possession of the estate. And no one can transmit a right of action before having acquired it.

See also Succession of Tyson, 186 La. 516, 172 So. 772 (1937); Succession of Fernandez, 163 La. 362, 111 So. 787 (1927).

For the foregoing reasons, the trial court was correct in concluding that the defendants were not entitled to represent their deceased ascendant in the succession of Ann Lewis Gwinn at the time of her death. Consequently, they proved no title to or interest in this property.

Insofar as the plaintiffs’ claim to the property is concerned, they prevail first because they are in possession, and defendants have failed to prove their ownership. Moreover, under the terms of La.C.C. Art. 915 in effect in 1962, a surviving spouse inherited as a legal heir by operation of law, without the necessity of formal compliance with the provisions relating to the placing into possession of irregular heirs. Himel v. Richard, 374 So.2d 714 (La.App. 1st Cir.1979); La.C.C. Art. 915, supra. The trial court correctly found that from the date of the death of Ann Lewis Gwinn until his death, Mose Gwinn continued in possession of the entirety of the land and improvements which had belonged to the community of acquets and gains and tacitly accepted her succession. La.C.C. Art. 988 et seq. Acceptance of a succession is a question of fact. Barnsdall Oil Co. v. Applegate, 218 La. 572, 50 So.2d 197 (1950). The trial court did not err in,determining that Mose Gwinn, as surviving spouse of Ann Lewis Gwinn, inherited her undivided one-half interest in the property by operation of law and tacitly accepted her succession.

Each of the plaintiffs claim their ownership to the property as legitimate descendants of the sister of Mose Gwinn, Rosie Gwinn Cooper. See La.C.C. Arts. 902 and 912. The trial court applied the presumption of La.C.C. Art. 184 as it existed at the time of the births of these children and found that this presumption was not defeated by the fact that these children were not the biological children of Abraham Cooper. Under the facts presented by this case, this finding was not in error. See Lewis v. Powell, 178 So.2d 769 (La. App.2d Cir.1965); Feazel v. Feazel, 222 La. 113, 62 So.2d 119 (1952); George v. Bertrand, 217 So.2d 47 (La.App.3d Cir.1969); Succession of Fuselier, 325 So.2d 296 (La. App. 3d Cir.1975).

Accordingly, plaintiffs, as the only legitimate descendants of the collateral relations of Mose Gwinn, have proven their ownership of the property in question.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed at the cost of appellants.

JUDGMENT AFFIRMED.

      . The plaintiffs are Caleb Shorts, Irene McKinney, Nathaniel Shorts, Jr., Mamie Kennedy, Ma-teal Porchay, and Moses S. Strange. They are also defendants in rcconvcntion but will be referred to throughout this opinion as "plaintiffs” for the sake of brevity.

      . The defendants are Annie Lee Daniels, Andrew Daniels, Josephine Daniels James Meredith, Lonnie Jean Williams Hill, Eddie Abron Williams, Delores Williams Johnson, Noclla Marie Williams Hayes, Curtis Lee Williams, Virgie Mae Williams Henderson, Euredell Williams, and Cardella Williams. They are also plaintiffs in reconvention by virtue of their reconventional demand seeking to be declared owners of an undivided one-half interest in this property but will be referred to throughout this opinion as "defendants” for the sake of brevity.

      . By Act 919 of the 1981 session of the Louisiana legislature, the Preliminary Title and Chapters 1, 2, and 3 of Title I of Book III of the Louisiana Civil Code, containing Articles 870 through 933, relative to kinds of succession and intestate succession were revised, amended and reenacted; and a new preliminary title and chapters were substituted. This act provides that it only applies to the rights and obligations of persons whose date of death is after December 31, 1981. Consequently, all Civil Code Articles referred to in this opinion are the articles which were in effect prior to this legislative change.

      . La.C.C. Arts. 902 and 912 provided:
      Art. 902. Legitimate children or their descendants inherit from their father and mother, grandfathers or other ascendants, without distinction of sex or primogeniture, and though they may be born from different marriages.
      They inherit in equal portions and by heads, when they are in the same degree, and inherit by their own right; they inherit by roots, when all or part of them inherit by representation.
      Art. 912. If a person dies, leaving no descendants nor father nor mother, his brothers and sisters, or their descendants, inherit the whole succession to the exclusion of the ascendants and other collaterals.

      . La.C.C. Art. 184 provided:
      The law considers the husband of the mother as the father of all children conceived during the marriage.


author: CULPEPPER, Judge Pro Tem.

text:
    Dr. Richard C. BAKER, Plaintiff-Appellee, v. Claude SCOTT and Fannie P. Scott, Defendant-Appellant.
    No. 16015-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 21, 1984.

      Cook, Yancey, King & Galloway by Sidney E. Cook, Shreveport, Campbell, Campbell & Johnson by James M. Johnson, Min-den, for plaintiff-appellee.
    McConnell & Associates by Charles E. McConnell and James S. Harris, Springhill, for defendant-appellant.
    Before PRICE and FRED W. JONES, JJ., and CULPEPPER, J. Pro Tem.
   CULPEPPER, Judge Pro Tem.

This proceeding was initiated as a suit on an open account filed by Dr. Richard C. Baker on November 6, 1979 against Mrs. Claude Scott for dental services in the sum of $7,458 and 25% attorney’s fees. Mrs. Scott answered denying liability and filed a reconventional demand for damages for dental malpractice. Dr. Baker filed an exception of prescription as to the reconven-tional demand, and this exception was referred to the merits. After a trial on the merits, the trial judge dismissed Dr. Baker’s suit on an open account, overruled Dr. Baker’s exception of prescription and rendered judgment in favor of Claude Scott and his wife, Fannie P. Scott on their recon-ventional demand against Dr. Baker and his liability insurer, Federal Insurance Company, in the sum of $13,374.50. Mr. and Mrs. Scott appealed, seeking an increase in the award. Dr. Baker answered the appeal, contending the trial judge erred in overruling the exception of prescription, and in the alternative that the district court erred in finding liability on the part of Dr. Baker and also erred as to the amount of the award.

The issues on appeal are: (1) Did the trial judge err in overruling Dr. Baker’s exception of prescription as to the reconventional demand? (2) Did the trial judge err in finding Dr. Baker guilty of dental malpractice? (3) Is the award excessive or inadequate?

In excellent written reasons which we accept as our own except for the amount of the award, the trial judge has carefully analyzed the evidence, found the facts and correctly applied the law as follows:

Evidence shows that Dr. Baker, who was a practicing dentist in Minden, first performed professional services for Mrs. Scott in 1974 when he fitted a bridge in the upper front portion of her mouth. In April, 1979, Mrs. Scott was experiencing difficulties with the bridge and she consulted Dr. Baker. He determined that the bridge had worn through and was beyond saving and the parties agreed that Dr. Baker would proceed to replace it. Dr. Baker also determined that extensive work needed to be done to her lower teeth.

The upper work was completed on April 19, 1979. Mrs. Scott later returned to Dr. Baker’s office to discuss the lower teeth. Dr. Baker testified that he told her she would need fifteen units of crown and bridgework in the lower mouth. Price and method of payment were apparently agreed upon and on or about May 18, 1979, the preliminary work was done. On June 7, 1979, the crown and bridgework were fitted. Dr. Baker Testified (sic) that he felt that the margins on these crowns looked too bulky so he used a temporary cement and told Mrs. Scott to return in three days. Mrs. Scott denies that Dr. Baker told her to return. There is no evidence which suggests that Dr. Baker undertook to do any additional work, and his letter dated November 29, 1979 concerning his statement does not mention anything about her missing any appointments. In addition, Dr. William M. Hall, who examined her later, testified that none of the work done by Dr. Baker was of a temporary nature.

On June 23, 1979, Dr. Baker had an accident, and he has not practiced dentistry since that date. While Mrs. Scott returned to Dr. Baker’s office after the June 7th date, and was treated for pain by another dentist in Dr. Baker’s office, she has not seen Dr. Baker since June 7, 1979.

Mrs. Scott testified that she has had difficulty and has experienced much pain since shortly after Dr. Baker performed his work. She was not able to obtain relief from Dr. Baker’s office. She also saw Dr. J.H. Connell in Minden, and on February 26, 1980, she consulted Dr. William M. Hall. When she first contacted Dr. Hall, she saw him in his capacity as President of the Northwest Louisiana Dental Society to lodge a complaint against Dr. Baker. She testified that she began to realize in September or October of 1979 that there was something wrong with the work done by Dr. Baker. When she first saw Dr. Hall, she also sought relief from the pain she continued to experience. Dr. Hall explained to Mrs. Scott what she should do to lodge the complaint. He also advised her that she needed to consult a dentist. He did not accept her as a patient until May 21, 1980.

Dr. Hall testified extensively about the condition of Mrs. Scott’s mouth and the work performed by Dr. Baker. It was his conclusion and the Court is of the opinion that the evidence clearly establishes that Dr. Baker’s work was substandard. If Dr. Baker had properly performed his work the condition of Mrs. Scott’s mouth after that work would have been such that her teeth would be free from decay, she would have good occlusion, the crown and bridgework would fit properly and her gums would be healthy. In fact, her teeth had much decay, poor occlusion, open margins, ill fitting and loose bridgework, and she had a generally unhealthy mouth. Evidence also establishes that Dr. Baker extracted four teeth that could have been saved.

Dr. Perry Hollembeak, another expert witness, also examined Mrs. Scott after the work done by Dr. Baker. He said that her mouth was in a mess. Dr. Baker’s work was unacceptable, and the- only way to correct it was to remove what was done and restore the crowns and bridgework. He said that Mrs. Scott’s problems were due to the manner in which Dr. Baker performed the work. In his opinion the cost of such work would be $8,000.00. Dr. Hollembeak saw Mrs. Scott only one time and he did not have the benefit of Dr. Baker’s X-rays.

Dr. Jack W. Gamble, an oral surgeon, was called as a witness for Dr. Baker. He testified that he examined Mrs. Scott and that she had many crowns with extended margins which aggravated her peridontal condition. He would not necessarily attribute decay under the crowns to Dr. Baker’s work because he said that it was possible for teeth to decay under crowns even if the dentist had done his work carefully. He was of the opinion, however, that the work done by Dr. Baker needed to be replaced.

The evidence establishes that the work performed by Dr. Baker was below the standard of care ordinarily exercised by dentists in the area. The work he did for Mrs. Scott was not done correctly and was of no benefit to her. He is not entitled to recover any amount from her for the work he performed and his demands should be rejected.

Considering Mrs. Scott’s claim against Dr. Baker, the record reveals that her re-conventional demand was filed on June 10, 1981. The evidence shows that Dr. Baker began his work in early April, 1979 and last saw her on June 7, 1979, so the question of prescription is an issue and has been raised by exception. L.R.S. 9:5628 provides that a claim such as this must be brought within one year of the date of the act or from the date of the discovery of the alleged act. It was stipulated at the trial that Mrs. Scott’s request for review [by a medical review panel under LSA-R.S. 40:1299.47] was filed on August 11, 1980. This is more than one year after the act, but within one year from the time that the evidence shows she discovered that there was something wrong with Dr. Baker's work. She testified that somewhere in Setpember (sic) or October, 1979, she began to believe that the work done by Dr. Baker was defective. Dr. Hall testified that when he saw her in February, 1980, Mrs. Scott knew her teeth hurt and that she had had them worked on and that was about the extent of it. The Court is satisfied that the request for review was filed within one year from the time that she had knowledge of the existence of facts that would have entitled her to bring a malpractice action, and that this request for review interrupted prescription and accordingly, the exception of prescription should be overruled.

Mrs. Scott is entitled to damages from Dr. Baker. Counsel for Dr. Baker argues that she has sustained no damages. He argues and the evidence shows that in April, 1979, when she consulted Dr. Baker, she needed extensive dental work costing a total of $6,648.00 and that when she consulted Dr. Hall in February, 1980, what was needed was the removal and replacement of the work done by Dr. Baker. Dr. Hall estimated the cost to be $7,550.00. Since she has not paid Dr. Baker, counsel argues, and the same work needs to be done, all she needed to do in February, 1980 was to have the work done by a dentist of her choice.

However, the evidence shows that the condition of Mrs. Scott’s mouth deteriorated because of the work done by Dr. Baker. In reaching this conclusion, considerable weight is given to the testimony of Dr. Hall. Dr. Baker’s own witness, Dr. Gamble, had no real dispute with Dr. Hall’s conclusions. Evidence shows that some of the decayed areas in Mrs. Scott’s teeth, which Dr. Baker had treated, had rampant overwhelming decayed areas when Dr. Hall examined her, whereas in those decayed areas which Dr. Hall did not treat, the decay had advanced, but not very much. There were decays under the crowns, there were many open margins, crowns were placed in such tight contacts with so little space between them that there was no room for gum tissue to exist in a healthy state between them, and they could not be properly cleaned. Consequently, the Court is of the opinion that the evidence shows that there was a deterioration of her dental health due to the work done by Dr. Baker. Dr. Hall testified' that Dr. Baker pulled four bottom teeth which did not need to be pulled. Dr. Hall had the benefit of Dr. Baker’s X-rays. His conclusion was not disputed by Dr. Gamble, who as mentioned above, testified for Dr. Baker. Two additional teeth, anchor teeth for the lower bridge, that Dr. Baker had put crowns on, were decayed and abcessed when Dr. Hall first examined her. Dr. Hall later performed root canals on these two teeth, but they were eventually lost. The loss of these two teeth cannot be attributed entirely to Dr. Baker because the evidence does not establish that they would have been lost even had they been treated earlier, but there can be no doubt but that they did substantially deteriorate because of the ill fitting and improperly prepared crowns. So counsel is not correct when he argues that Mrs. Scott sustained no loss. When Dr. Baker performed his work the condition of Mrs. Scott’s mouth was such that fixed bridgework could be placed in her mouth. Now, largely because of his improper work, she can no longer have a fixed bridge, but will have to have a removable one.

It is true that she needed extensive work when she first saw Dr. Baker in April, 1979, and Dr. Baker is not liable in damages for the condition of her mouth prior to his treatment. He is also not responsible for further deterioration of her condition after she became aware of the fact that, as Dr. Hall told her in February, 1980, she needed to see a dentist. However, Dr. Baker is responsible to her to the extent that her already poor condition deteriorated because of his treatment. He is also responsible for the considerable pain and suffering she has sustained up to the time she knew that more bridge and crown work needed to be done.

The evidence shows that Mrs. Scott has suffered considerable pain and distress and that her eating and sleeping have been affected. She has also lost four teeth, which while decayed and not perfectly healthy, were salvagable. Other teeth, particularly the two teeth described on November 22 and 27, which were eventually lost, deteriorated substantially, and as stated above, she can no longer be fitted with fixed bridgework in her lower mouth.

In the opinion of the Court, she is entitled to damages for pain and suffering and for the loss of teeth, and for the deterioration of the condition of her mouth due to the work performed by Dr. Baker in the amount of $12,500.00.

She is also entitled to the expenses she has incurred in receiving dental treatment which she would not have incurred had the work been properly performed, the evidence showing such expenses to be $874.50.

Accordingly, there should be judgment herein in favor of Mrs. Scott in the amount of $13,374.50 together with legal interest and costs.

As regards the issue of prescription, Dr. Baker contends on appeal that since he last treated Mrs. Scott on June 7, 1979, and the request for a medical review panel was not filed until August 11, 1980, this claim had already prescribed at the time a request for a review panel was filed, so the claim was already prescribed and could not be suspended by the filing of the request for review. The trial judge has answered this argument in his written reasons quoted above, where he points out that Mrs. Scott did not discover the defective work by Dr. Baker until September or October of 1979. On appeal, Dr. Baker argues that Mrs. Scott did not exercise reasonable diligence in trying to ascertain the existence of the malpractice. The trial judge did not expressly address the reasonable diligence issue, but it is obvious from his conclusion that he found Mrs. Scott had used reasonable diligence. Our review of the evidence convinces us that following completion of Dr. Baker’s work in June of 1979, Mrs. Scott did have pain and discomfort and returned to Dr. Baker’s office on August 8, 1979, for a prescription for pain. However, Mrs. Scott was justified in thinking that her pain and discomfort resulted from the massive amount of dental work performed by Dr. Baker and she was reasonable in that belief until September or October of 1979, when she began to think that the work done by Dr. Baker was defective.

As to the liability issue, the evidence abundantly supports the finding of the trial judge that Dr. Baker was guilty of malpractice.

The most serious issue in this case is the amount of the award. We have no difficulty in concluding the award is not excessive, but the plaintiff argues persuasively that it is inadequate. It is contended that of the $12,500 awarded by the trial judge for pain, suffering, loss of teeth and deterioration of the condition of her mouth due to the defective work performed by Dr. Baker, $7,550 will be required to pay another dentist to remove and replace the work done by Dr. Baker, which means that the remainder of only $4,950 is in effect the award for general damages. Plaintiff cites Garrison v. State, Through Department of Highways, 401 So.2d 528 (La.App. 2d Cir.1981), where as the result of an automobile accident a young lady 14 years of age sustained bruises on both legs below the knees with superficial scarring and had two chipped front teeth. The trial judge awarded a total of $10,000. This court reduced the award from $10,000 to $4,000, of which apparently $1,000 was for the knee injuries and $3,000 was for the two chipped teeth. Plaintiff argues that by comparison her injuries resulting from Dr. Baker’s negligence were much greater than those in Garrison.

Plaintiff also cites Delery v. Schneider, 410 So.2d 857 (La.App. 4th Cir.1982), where the court of appeal reversed the trial court’s finding of plaintiff’s contributory negligence and awarded plaintiff $10,000 in general damages for oral injuries, including several broken teeth, bruises and cuts on the lip and inside her mouth, requiring 30 visits to her dentist, four extractions, gold bridges and the prescription of antibiotics and pain pills for a period of over seven months.

Plaintiff cites Johnigan v. State Farm Mutual Automobile Insurance Company, 345 So.2d 1277 (La.App. 3d Cir.1977), where plaintiff suffered injuries to his left side and lower back in addition to the loss of two teeth. Of the total award of $8,000, approximately $4,000 was for the loss of two teeth, which would be $2,000 per tooth.

In the present case, Mrs. Scott, who was 49 years of age in 1979 when she went to see Dr. Baker, already had severe dental problems. Of her 16 upper teeth, six were missing, eight were decayed and only two were in good condition. Of her lower teeth, three were missing, four were in such bad condition as to need root canals and all the rest except two were badly decayed. She had abcesses and was having much pain. However, the trial judge found, and the evidence shows, that as a result of Dr. Baker’s negligent treatment, the condition of Mrs. Scott’s mouth deteriorated faster, principally because he ground off the enamel for crowns which did not fit or soon became loose resulting in exposure of the soft portions of the teeth which decayed rapidly. The trial judge found Dr. Baker pulled four teeth which could have been saved and that two more were later lost due to his treatment. This is a total of six teeth lost due to Baker’s negligence. Also, because of the improper work, Mrs. Scott can no longer have a fixed bridge, but will have to have a removable bridge. As a result of the improper work, Mrs. Scott has suffered much pain in the past and will suffer much more in the future.

Under all the circumstances, we conclude the award should be increased to a sum which will provide Mrs. Scott with $15,000 in general damages over and above the $7,550 which the evidence shows will be necessary to remove and replace the work done by Dr. Baker. This is the lowest sum which the trial judge could have reasonably awarded. Thus, we will increase the award by the sum of $10,050, making the total award $23,424.50.

For the reasons assigned, the judgment appealed is amended to increase the total award from the sum of $13,374.50 to the sum of $23,424.50. Otherwise, the judgment is affirmed.

AFFIRMED AS AMENDED.