author: GUIDRY, Judge.

text:
    Donald GUILLOT, Plaintiff-Appellant, v. Landry P. GUILLOT, et al., Defendants-Appellees.
    No. 83-267.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.

      John T. Bennett, Marksville, for plaintiff-appellant.
    Maxwell Bordelon, Jr., David Lafargue, Darrel Ryland, Marksville, for defendant-appellee.
    Before GUIDRY, CUTRER and STOKER, JJ.
   GUIDRY, Judge.

Donald Guillot filed this suit seeking worker’s compensation benefits, penalties and attorney’s fees as the result of an accident which occurred on March 2, 1982, while plaintiff was driving a truck, during the course and scope of his employment with Landry Guillot. Originally named as defendants were Landry Guillot, plaintiff's regular employer; Sam Denova; and, Haynes Brothers Lumber Company (hereafter Haynes Brothers), plaintiff’s alleged statutory employer. Landry Guillot and Sam Denova filed third party demands for indemnity against Bradford National Life Insurance Company (hereafter Bradford National), as the alleged worker’s compensation insurer of Haynes Brothers, and against Haynes Brothers on the basis of the latter’s alleged agreement to procure worker’s compensation insurance on their behalf. Additionally, Haynes Brothers filed third party demands against Bradford National and National Savings Life Insurance Company (hereafter National Savings) for indemnity and for penalties and attorney’s fees, on the basis of employees group accident policies allegedly issued, and in effect, covering Donald Guillot’s injuries. Haynes Brothers also filed a third party demand against Landry Guillot for indemnity as the contractor or regular employer of Donald Guillot pursuant to LSA-R.S. 23:1061. Prior to trial on the merits, Haynes Brothers settled its claim against National Savings and this claim was thereafter dismissed.

After trial on the merits, the trial judge rendered judgment on the main demand in favor of plaintiff, Donald Guillot, and against Landry Guillot, Curnest Guillot and Haynes Brothers in solido, awarding temporary total disability at the rate of $160.00 per week from March 2, 1982 until October 14, 1982, and “partial and temporary disability” at the rate of $48.00 per week from October 14, 1982 until October 14, 1983, and all medical and travel expenses. The trial judge denied plaintiff’s demands for penalties and attorney’s fees. Pursuant to the stipulation of all parties to the suit, the trial judge dismissed all claims against Sam Denova. On the incidental demands, the trial judge granted judgment in favor of Landry and Curnest Guillot and against Haynes Brothers for indemnity and denied all other third party demands.

Appeals were taken by Donald Guillot and by Curnest and Landry Guillot. The other parties neither appealed nor answered the appeals.

Donald Guillot appeals the judgment of the trial court urging error in the trial court’s failure to find him totally and permanently disabled and entitled to penalties and attorney’s fees. Curnest and Landry Guillot appeal the judgment of the trial court insofar as it determines that the plaintiff is entitled to any worker’s compensation benefits and insofar as it dismisses their third party demand against Bradford National. The issues before this court on appeal are as follows:

(1) Did the trial court err in its award of worker’s compensation benefits to the plaintiff?
(2) Did the trial judge err in failing to award plaintiff penalties and attorney’s fees?
(3) Did the trial court err in denying the third party demand of Landry and Curnest Guillot against Bradford National?

FACTS

On November 13, 1981, pursuant to an application executed by Vicky Gauthier on behalf of Haynes Brothers and payment of $1,198.35 as premium, Bradford National issued an Employer’s Blanket Accident Group policy to Haynes Brothers, The policy was issued for a term of one month expiring December 13, 1981. Haynes Brothers made a second premium payment in the amount of $1,198.05 on December 16, 1981, which was within the 10 day grace period provided for in the policy thereby validly renewing the policy for a term of one month beginning December 13, 1981. The third and last premium payment was made on January 11, 1982 in the amount of $1,198.05., which payment renewed the policy for an additional one month period beginning January 13, 1982. On February 22, 1982, pursuant to an application executed by Haynes Brothers, National Savings issued a policy to Haynes Brothers providing the same type of coverage as the Bradford National policy.

On March 2, 1982, Donald Guillot, the plaintiff, was driving a truck in the course and scope of his employment with Landry and Curnest Guillot, hauling logs for Haynes Brothers. He was injured when the left front tire blew out on the truck he was driving causing him to lose control of the vehicle. The truck went into a ditch on the opposite side of the road, hit some trees and then flipped over. The cab of the truck was crushed by the trees and by the logs. Mr. Guillot’s left leg was pinned in the truck and he had to be pulled out. He was unable to stand due to severe pain in his left hip and right side. The plaintiff was taken home. The following day, March 3, 1982, suffering from severe pain in his left hip, right side and lower back, he attempted to seek medical attention at the hospital, but was turned away because of lack of verification of insurance. He returned to the emergency room on March 4, 1982, where he was seen by Dr. Bryan C. McCann. The diagnosis was low back strain, multiple contusions and abrasions. Pain and anti-inflamatory medications were administered and prescribed. He returned again on March 5, 1982 complaining of severe pain. On March-8, 1982, he was hospitalized and placed in pelvic traction. Plaintiff was discharged five days later. The diagnosis in the hospital discharge summary was again low back strain; prognosis was good. The plaintiff was seen on three more occasions in March by Dr. McCann and treated conservatively with pain medication and on March 22, 1982, he was referred to an orthopaedist, Dr. Ray J. Beurlot. He was seen by Dr. Beurlot on three occasions, March 29, April 12 and April 23, 1982. A CAT scan of the low back, ordered by Dr. Beurlot on March 29, revealed no atrophy of either thigh. Dr. Beurlot also ordered conservative treatment and an exercise program. Mr. Guillot was seen by Dr. McCann again on May 6, 1982 and on May 31, 1982, he was seen by another orthopaedist, Dr. T.E. Banks. Dr. Banks diagnosed possible pathology in the right hip and a possible disc lesion between L4 and L5 with nerve root pressure on the right and recommended hospitalization with a bone scan and possible myelogra-phy. On June 1, 1982, Mr. Guillot sustained a minor accident. While sitting in an old wooden chair at his brother’s house, the chair broke and he fell sitting. He returned to Dr. McCann, again complaining of pain. He continued to see Dr. McCann to the date of trial and continues to complain of pain especially in the lower back and right hip. He was last seen by Dr. Banks just prior to trial on October 6, 1982, which resulted in the same diagnosis and recommendations for hospitalization for bone scan and myelography.

Defendants, Haynes Brothers and the Guillots, were promptly notified by certified mail with return receipt requested of plaintiff’s demand for payment of worker’s compensation benefits. In addition, both received an accident claim form completed by Dr. McCann stating that plaintiff was permanently disabled for an undetermined period, and numerous periodic requests for payment of medical bills. Defendants have continuously refused to pay based on their contention that the other is liable.

TRIAL JUDGE’S AWARD OF WORKER’S COMPENSATION BENEFITS

Landry and Cumest Guillot contest the trial judge’s award of benefits contending that the plaintiff has failed to show by a preponderance of the evidence that he is disabled.

Plaintiff presented the only evidence at trial regarding his disability which consisted of his own testimony, the testimony of Dr. McCann and a medical report from Dr. Banks. Dr. McCann related the plaintiff’s complaints and his own findings to the accident and opined that he considered plaintiff disabled at the time of trial and agreed with Dr. Banks’ recommendation for further testing. The plaintiff testified that he has never done any kind of work other than heavy manual labor; his back has not improved any since the accident; and, he is presently unable to perform any kind of manual labor and has not worked since the accident. The above evidence which sufficiently established that plaintiff was disabled indefinitely was un-contradicted. In fact, Landry Guillot testified that he did not dispute the fact that plaintiff was disabled as a result of the accident. Accordingly, we find no manifest error in the trial judge’s finding that plaintiff is disabled as a result of the accident.

In his written reasons for judgment, the trial judge noted the concurrence of the two treating physicians in the diagnosis of a possible ruptured disc and made the following findings of fact:

“The plaintiff was completely disabled from the date of the accident, March 2, 1982, until October 14, 1982 and remains partially disabled. Plaintiff is yet under treatment and on medication. Plaintiff remains disabled to some extent.”

As mentioned at the outset of this opinion, the trial judge thereafter made the following award: $160.00 per week from the date of the accident, March 2, 1982, until October 14, 1982, and $48.00 per week for “partial and temporary disability” for an additional 52 weeks beginning October 14, 1982 (award based on 40 hour work week).

Plaintiff contends that this award constitutes error in that the worker’s compensation act does not allow an award for “partial and temporary” disability. Plaintiff further contends that the trial judge manifestly erred in failing to find that plaintiff was disabled from the date of the accident through trial and will continue to be disabled for an indeterminate period of time and to award benefits for total and permanent disability. We agree.

The record reflects that October 14, 1982 is significant only as the date of plaintiff’s last visit to Dr. McCann, one week before the trial date, October 22, 1982, at which time all of the evidence pertinent to the main demand and plaintiff’s disability was adduced. The trial judge concluded that plaintiff was totally disabled only until that date even though the record contains no evidence indicating any change in the plaintiff’s condition on that date. As noted by the trial judge, plaintiff was still under treatment at the time of trial and had not been released by his physician to return to work. In fact both physicians agreed that further hospitalization would be required. There is no evidence in the record which would suggest that plaintiff was not disabled at the time of trial. Rather, the preponderance of the medical and lay evidence supports the conclusion that plaintiff was totally disabled at the time of trial and the duration of such disability is uncertain. The trial court's conclusion to the contrary is manifestly erroneous. The proper award under such finding is for permanent total disability, reserving to the defendant the right to examine the plaintiff and revise the judgment after six months in the event the disability should terminate or lessen. Johnson v. Insurance Company of North America, 440 So.2d 1385 (La.App.3rd Cir.1983); Husband v. Insurance Company of North America, 284 So.2d 787 (La.App. 4th Cir.1973); Levine v. Liberty Mutual Insurance Co., 305 So.2d 665 (La.App. 3rd Cir.1974).

Accordingly, that portion of the judgment of the trial court will be amended so as to award plaintiff permanent total disability benefits at the rate fixed by the trial judge.

PENALTIES AND ATTORNEY’S FEES

Plaintiff contends that the trial judge’s denial of his claim for penalties and attorney’s fees constitutes manifest error. In his written reasons for judgment, the trial judge failed to note reasons for the denial of this claim. The record reveals that plaintiff made timely demand for benefits and medical expenses on both his regular and statutory employers. As of the trial date, both had failed to make any payments for compensation or medical expenses, asserting as their only defense to payment the liability of the other. The evidence introduced at trial by both Haynes Brothers and Landry and Curnest Guillot pertained only to the issues of the incidental demands, i.e., the issue of liability vis a vis each other and failed to contradict any of the facts asserted by plaintiff’s demand. We have carefully reviewed the record and are unable to find any legal excuse for defendants’ failure to pay plaintiff compensation and medical expenses. The dispute between the statutory and regular employers as to which one owes compensation benefits is not a justifiable basis for withholding these benefits from the injured employee. See Fontenot v. Town of Kinder, 377 So.2d 554 (La.App. 3rd Cir.1979), writ denied, 379 So.2d 1102 (La.1980). Accordingly, we conclude that the trial judge’s denial of this claim constitutes manifest error. We consider an award of $4,000.00 to be a reasonable fee for plaintiff’s attorney’s work at trial and on appeal.

THIRD PARTY DEMAND OF LANDRY AND CURNEST GUILLOT AGAINST BRADFORD NATIONAL

Landry and Curnest Guillot contend that the trial judge erroneously held that the policy of insurance issued by Bradford National to Haynes Brothers was not in effect on the date of the accident. In this respect, they argue that Bradford National failed to prove a valid cancellation of the policy pursuant to LSA-R.S. 22:636.

Bradford, on the other hand, argues that the issue of cancellation is not a relevant aspect of this cause where the policy expired by virtue of its own terms and was simply not renewed, relying on Arceneaux v. Broussard, 319 So.2d 846 (La.App. 1st Cir.1975).

Bradford National issued policy No. 48283590 to Haynes Brothers, on November 13, 1981, which provided in pertinent part as follows:

“Date of Issue 11-13-81 Initial Premium $1,198.05 First Renewal Date 12-13-81
This policy is issued in consideration of the application of the policy owner, a copy of which is attached hereto and made part hereof, and of the payment in advance of the initial premium stated above which maintains this policy in force from the date of issue hereof to the first renewal date on which date the insurance granted hereunder shall terminate unless the policy is renewed as herein provided. The policy may be renewed for like consecutive periods, but only with the consent of the company, by the payment in advance of the determined premium as indicated in the Premium Schedule for each renewal period. The Company’s acceptance of each renewal premium shall constitute its consent to renew.”

From the above pertinent portions of the policy, it is clear that the first premium paid on behalf of Haynes Brothers was for a one month period beginning on November 13, 1981. The second premium payment made by Haynes Brothers was received by Bradford National subsequent to the December 13, 1981 renewal date, however payment was received on December 16, 1981 within the 10 day grace period provided for in the policy, thereby validly renewing the policy on December 13, 1981 for a one month period.

The third premium payment made by Haynes Brothers prior to the premium due date of January 13, 1982 further renewed the policy for a one month period beginning January 13, 1982. No further payments were ever made to Bradford National. We therefore find that the policy lasped and terminated at 12:00 noon on February 13, 1982, in accordance with the above quoted terms. The policy was not cancelled and the provisions of LSA-R.S. 22:636 are inapplicable. The trial judge properly dismissed the Guillots’ claim against Bradford National. Arceneaux v. Broussard, supra.

For the above and foregoing reasons, we amend the judgment of the trial court so as to award judgment in favor of Donald Guillot and against defendants, Landry Guillot, Curnest Guillot and Haynes Brothers Lumber Company, in soli-do, for workmen’s compensation benefits at the rate of $160.00 per week beginning March 2, 1982 and extending during the period of his disability, together with all medical and travel expenses incurred by the plaintiff as a result of his injury, with interest on each past due payment at the legal rate from date due until paid; for penalties under the provisions of LSA-R.S. 23:1201.2; and, for attorney’s fees in the amount of $4,000.00, all rights being reserved to the defendants to proceed under LSA-R.S. 23:1331.

The judgment of the trial court in all other respects is affirmed. Costs on appeal are assessed against Landry Guillot, Curnest Guillot and Haynes Brothers Lumber Company.

AMENDED IN PART; AFFIRMED IN PART; AND, RENDERED.

      . Although Curnest Guillot was not named as a party defendant in plaintiffs petition, at trial, counsel for plaintiff and counsel for Landry and Curnest Guillot stipulated that all of the pleadings filed on behalf of Landry Guillot would also be made effective for Curnest Guillot. Cur-nest Guillot does not raise as an issue on appeal the procedural propriety of the trial court’s decree insofar as it casts him in judgment.

      . It is unclear from the record whether Haynes Brothers was a party to the stipulation that all pleadings on behalf of Landry Guillot would be made effective for Curnest Guillot (see footnote 1), and whether such stipulation was meant to include the third party demand of Landry Guil-lot against Haynes Brothers. Nevertheless, we note that Haynes Brothers failed to appeal and that this portion of the judgment of the trial court in favor of Landry and Curnest Guillot against Haynes Brothers is final.


source: Caselaw Access Project

author: CUTRER, Judge.

license: Public Domain

text:
    Robert DEVILLIER, Plaintiff-Appellee, v. N.L. INDUSTRIES, INC., Defendant-Appellant.
    No. 83-301.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.

      Domengeaux & Wright, Richard Brous-sard, Lafayette, for plaintiff-appellee.
    Onebane & Associates, Barbara Villar and Graham Smith, Lafayette, for defendant-appellant.
    Before GUIDRY, CUTRER and STOKER, JJ.
   CUTRER, Judge.

Robert Devillier, Sr., brought suit to recover workmen’s compensation resulting from a back injury incurred while he was roughnecking on a rig operated by N.L. Industries, Inc. From a trial judgment awarding plaintiff disability “until further order” of the court, attorney’s fees and penalties, defendant appeals.

The issues presented on appeal are as follow:

(1) Whether the trial court erred in finding that plaintiff’s injury occurred in the course and scope of his employment with defendant;
(2) Whether the trial court erred in its conclusion that plaintiff was disabled and entitled to compensation benefits; and
(3) Whether the trial court erred in assessing attorney’s fees and penalties against defendant for its decision to discontinue compensation benefits to plaintiff.

For the reasons which follow, we affirm in part and reverse in part.

The plaintiff was working as a roughneck for the defendant in July 1981. Defendant had employed plaintiff on an intermittent basis for approximately three years; he had, however, worked continuously with defendant for approximately one year prior to his injury. On or about Saturday, July 18,1981, plaintiff was working on a rig near Lake Charles, Louisiana. While manually pulling a heavy section of pipe from the pipe rack up into the Vee door, plaintiff began experiencing pain in the lower left section of his back and leg. Although he completed working his twelve hour shift, the plaintiff complained of his pain that evening to the tool pusher, John Wyble. Plaintiff also worked the next day, Sunday, in pain, but on Monday, due to an increase in pain, he could not continue working. Wyble took the plaintiff to the Lake Charles Memorial Hospital, where the emergency room physician diagnosed plaintiffs injury as being an “acute sacroiliac strain” and gave plaintiff prescriptions for medication.

Plaintiff worked a tour of seven days on and seven days off, and his shift ended on Monday, so he returned to his home in Opelousas after the hospital visit. The following Monday, one day prior to his scheduled return to work, the plaintiff went to the Opelousas General Hospital to be examined before returning to his manual labor. There he was diagnosed as having sciatica and advised to return to work if he felt that he could. Plaintiff returned to his job on Tuesday and worked the evening shift in pain. This was plaintiffs last day to work for defendant. Due to the pain in his back, plaintiff again went to the hospital in Lake Charles where he was advised to see a specialist. The specialist, Dr. David Drez, Jr., examined plaintiff the same day and gave a diagnosis of lumbar muscular strain. Dr. Drez referred plaintiff to Dr. Frazer Gaar, an orthopedic surgeon in Opelousas, and an appointment was made for Monday, August 3rd. Plaintiff resided near Opelousas.

In the meantime, the plaintiff went to see Dr. Seldon Deshotel on July 30th. Plaintiff was given medication for his pain by Dr. Deshotel who called Dr. Gaar and persuaded him to see plaintiff the following day. Dr. Gaar examined the plaintiff on July 31st and admitted him into the local hospital for treatment. Against Dr. Gaar’s advice, plaintiff left the hospital after three days to return home.

On August 10, 1981, Dr. Gaar diagnosed plaintiff as having “symptomatic spondylo-lysis [defective vertebrae] with lumbar strain.” In order to better determine the extent of plaintiffs injury, Dr. Gaar ordered that tomograms be taken of the plaintiffs lower back. The tomograms were twice attempted between August 6th and 24th, but they were not satisfactorily completed because, according to the plaintiffs testimony at trial, due to pain, he could not remain in one position long enough for the tomogram tests to be completed.

After bi-weekly trips to Dr. Gaar, and the receipt of therapy, plaintiff was discharged by Dr. Gaar on September 9, 1981. At that time Dr. Gaar felt that the initial lumbar strain was resolved, although the spondylolysis defect remained. The plaintiff was still complaining of pain and weakness in his left leg, and he did not feel he could return to the manual labor required of a roughneck. Dr. Gaar stated that this might “very well be true,” and he suggested that plaintiff “seek a lighter type occupation.”

After plaintiff was discharged from Dr. Gaar’s care, defendant asked him if he wished to see another physician. The plaintiff indicated that he did and, on September 29, 1981, was sent to Dr. Fred Webre, an orthopedist who limits his practice to evaluations and recommendations. However, when Dr. Webre refused to reveal his examinations’s findings to plaintiff, plaintiff employed an attorney to assist him.

Dr. Webre felt that plaintiff had fully recovered from his injury and could return to work. He also felt that, if plaintiff returned to his roughnecking, the latter might suffer low back pain, but not of an “incapacitating nature.” Dr. Webre stated that he could not explain plaintiff’s back pain unless it could be plaintiff’s overweight as he was 5 feet 6 inches tall and weighed 229 pounds.

On October 7th, plaintiff was notified by defendant that, pursuant to Dr. Gaar’s report, they would no longer pay his compensation. Accordingly, no further compensation was paid plaintiff.

On October 12, 1981, plaintiff was examined by Dr. E.K. Ventre, a general practitioner in Opelousas. Dr. Ventre opined that the plaintiff had “strongly suggestive evidence of injury to the lumbar spine and possible nerve root involvement.” He explained that this meant a disc injury. He was of the opinion that the plaintiff could not return to his duties. He recommended further diagnostic studies be performed.

Plaintiff next sought treatment from Dr. Stuart Phillips, an orthopedic surgeon in New Orleans. Dr. Phillips first examined plaintiff on October 29, 1981. It was Dr. Phillips opinion that plaintiff, in addition to spondylolisthesis, had evidence of a nerve injury at a higher level, possibly a ruptured disc at the L3-4 level, since this level supplied the quadriceps muscle which appeared inactive because of the atrophy detected. Dr. Phillips stated that, in order to insure the exact cause of plaintiffs problems, a complete diagnostic workup should be conducted, including tomograms and myelograms; he further said that the patient was totally disabled from performing manual labor.

Plaintiff was seen again on December 9, 1981, and May 20, 1982; by the latter date Dr. Phillips observed that the plaintiffs symptoms had increased. He recommended that a CAT scan or myelogram be performed. Dr. Phillips stated that, as of May 20, 1982, plaintiff was totally disabled from occupations requiring “repetitive lifting, bending and stooping.”

Between plaintiffs visits to Dr. Phillips, he was seen once more on February 19, 1982 by Dr. Webre. Noting the plaintiffs continued complaints of pain, Dr. Webre’s report was consistent with his September 29th examination, except he noted plaintiffs diminished sensation on the back of his left foot. Observing that the plaintiff did have some mechanical problem but detecting no evidence of nerve root impingement in the lower extremities, Dr. Webre concluded that plaintiff had “no objective evidence of impairment to function of his back that would prevent him from returning to work.”

At the request of defendant on August 2, 1982, plaintiff saw Dr. E.J. Dabezies, a professor of orthopedics at the L.S.U. Medical Center in New Orleans. Dr. Da-bezies’ examination revealed no abnormalities other than a depressed left patella tendon reflex. He could detect no objective evidence of a ruptured disc, but suggested a CAT scan to resolve the conflict of diagnosis.

Dr. Phillips examined plaintiff on August 30, 1982, three days prior to the day of trial. By deposition he said that plaintiffs condition had remained unchanged and that surgery would probably be required before plaintiff could return to even a sedentary job.

The appropriate standard of review to be applied by the appellate court in reviewing the trial court’s finding of fact is set forth in the case of Crump v. Hartford Acc. & Indem. Co., 367 So.2d 300 (La.1979):

‘On appellate review, the trial court’s factual findings of work-connected disability are entitled to great weight. They should not be disturbed where there is evidence before the trier of fact which, upon the latter’s reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s findings, unless clearly wrong. The reviewing court should not disturb reasonable evaluations of credibility and reasonable inferences of fact by the trial court, even though the reviewing court is of the opinion that other evaluations and inferences are as reasonable.
“ ‘See: Cadiere v. West Gibson Products Company, 364 So.2d 998 (La.1978); Aleman v. Lionel F. Favret Co., Inc., 349 So. 2d 262 (La.1977); Gradney v. Vancouver Plywood Co., Inc., 299 So.2d 347 (La.1974). See also Canter v. Koehring [Co.], 283 So.2d 716 (La.1973).
“ ‘As noted by these decisions, the reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.’ ”

With these standards in mind we examine the issues herein.

WHETHER PLAINTIFF WAS INJURED IN THE COURSE AND SCOPE OF HIS EMPLOYMENT

The defendant contends that plaintiffs account of his injury was not supported by the testimony of his co-workers. Additionally, defendant alleges that the histories of plaintiffs injury, as recorded by the various examining physicians, contained inconsistencies and does not support the trial court’s finding that the plaintiff was injured while acting in the course and scope of his employment. We disagree.

Addressing defendant’s allegations of inconsistencies, the trial court noted that there was much testimony supporting plaintiff’s account that his injury occurred while he was handling the sections of pipe on defendant’s rig. Our careful review of the record supports this finding. We have previously set forth the circumstances under which this accident occurred; the fact that plaintiff reported the accident to his superior the same day and the subsequent actions of the tool pusher in assisting plaintiff. Also, the histories of the various doctors are consistent as to how the accident happened with some variation as to the exact date; whether July 19th or July 20th. The plaintiff’s testimony at trial was unequivocal and was not made questionable by a purported discrepancy.

In sum, the trial court’s finding that plaintiff was injured while working for defendant is fully supported by the evidence.

DISABILITY

In his reasons for judgment the trial court, after reviewing the medical evidence, concluded as follows:

“The Court concludes that the plaintiff was originally hurt; and, cannot now return to the same work. The two plaintiff doctors say, in their opinion, there is a disc. One defense doctor says he is cured, but cannot or should not return to the same work. The other defense doctor says he thinks the man is fully recovered, but also wants a CT scan and/or myelogram. (The latter does say he has his opinion of no disability, but that tests are necessary, not to confirm his diagnosis, but to resolve the difference of medical opinions.)”

The trial court’s ruling is fully supported by the record.

At the time of plaintiff’s accident, he was 46 years of age and had roughnecked in the oilfields for approximately 12 years without having sustained any time loss injury. After the accident the preponderance of the evidence reflects that plaintiff’s disability is such that he cannot perform the heavy and strenuous duties of a roughneck. This disability will continue for an indefinite time in the future.

The physicians were not able to determine the exact cause of the disability, i.e., whether it was an aggravation of an existing condition or a ruptured disc. It is not necessary that plaintiff establish the exact medical diagnosis of his condition which causes disability.

Where there is proof of an accident and the following disability without any intervening cause, it is presumed that that accident caused the disability. It is not necessary to determine the exact cause of the disability. This presumption is re-buttable. The effect is to shift the burden to the defendant. Johnson v. Travelers Insurance Co., 284 So.2d 888 (La.1973).

As we consider the lay testimony and the medical evidence presented, the defendant has not overcome the above presumption. The trial court was not clearly wrong in its award based on total permanent disability.

PENALTIES AND ATTORNEY’S FEES

Defendant alleges that the trial court erred in awarding plaintiff penalties and attorney’s fees on the basis of defendant’s alleged arbitrariness and capriciousness in terminating his compensation benefits on October 7, 1981. Defendant seeks avoidance of the penalty assessments, alleging its justifiable reliance upon the reports of Drs. Gaar, Webre and Dabezies. We agree with this position.

As we review the medical evidence we conclude that the trial court was clearly wrong in its determination that the defendant was arbitrary in its termination of compensation payments to plaintiff on October 7, 1981.

Defendant terminated payments on that date based upon a report by Dr. Gaar, the treating physician. This physician stated that plaintiff had recovered from his lumbar strain incurred in the accident. He stated, however, that plaintiff may have pain in performing heavy work but such pain would be due to a pre-existing spinal condition.

Plaintiff expressed a desire for more medical evaluation. As a result defendant sent plaintiff to Dr. Webre. Dr. Webre found that plaintiff had fully recovered and could return to work as a roughneck.

Thereafter, plaintiff was examined by Drs. Ventre and Phillips who both found that plaintiff had a possible herniated disc and was totally disabled.

Faced with this conflict of medical opinion, defendant did not cease its investigation. It sent plaintiff back to Dr. Webre and later had him examined by Dr. Dabez-ies. Dr. Webre again found that plaintiff recovered from his back injury and was able to return to work. Dr. Dabezies came to the same conclusion.

The defendant had a reasonable basis for terminating payments when it received the report of Dr. Gaar. This physician was plaintiff’s treating physician. This position was further supported by Dr. Webre’s report. In addition, after Drs. Phillips and Ventre reported that plaintiff was still disabled due to a possible disc injury, the defendant promptly had plaintiff re-examined by Dr. Webre and examined by Dr. Dabezies to obtain their further diagnosis as to the existence of disability. After a favorable report from these latter physicians, we conclude that defendant acted reasonably and had good cause not to resume payments of workmen’s compensation benefits. The trial judge was clearly wrong in ruling that the defendant was arbitrary in its termination of payments. See Hall v. Houston General Ins. Co., 377 So.2d 561 (La.App. 3rd Cir.1979), writ den., 379 So.2d 10 (La.1980).

We shall reverse the portion of the trial court judgment awarding penalties and attorney’s fees.

For these reasons the portion of the trial court judgment awarding plaintiff penalties and attorney’s fees is reversed and set aside. In all other respects the trial court judgment is affirmed.

The costs of this appeal shall be paid one-half by plaintiff, Robert Devillier, and one-half by defendant, N.L. Industries, Inc.

AFFIRMED IN PART; REVERSED IN PART.

      . We interpret this as a judgment for payments due for total permanent disability.

      . "Sciatica" is defined as being pain felt along the course of the sciatic nerve and can be in the lower back, buttocks, hips or adjacent areas.


author: DOMENGEAUX, Judge.

text:
    Charles SCHEPP, Plaintiff-Appellant, v. OLIN CORPORATION, Defendant-Appellee, Bechtel, Inc., and Industrial Indemnity Insurance Company, Intervenors-Appellants.
    No. 83-309.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.
    Rehearing Denied Feb. 29, 1984!
    Writs Denied April 13, 1984.

      Raleigh Newman, Lake Charles, for plaintiff-appellant.
    Scofield, Bergstedt & Gerard, J. Michael Veron, Lake Charles, for defendant-appel-lee.
    Plauche, Smith & Nieset, Michael J. McNulty, III, Lake Charles, for intervenor-appellee-appellant.
    Before DOMENGEAUX, DOUCET and LABORDE, JJ.
   DOMENGEAUX, Judge.

This appeal involves two cases which were consolidated at trial and remain as such on appeal, and evolve from an alleged accident which occurred on April 19, 1979. In case, La.App., 445 So.2d 1286, plaintiff sued his employer Bechtel, Inc. and its workers’ compensation carrier, Industrial Indemnity Insurance Company, for workers’ compensation benefits. In this case, No. 83-309, appellant Charles Schepp filed suit against Olin Corporation in tort, based upon strict liability for conducting an ultrahazardous activity. Mr. Schepp’s employer, Bechtel, Inc., and its workers’ compensation carrier, Industrial Indemnity Insurance Company, intervened • to recover the workers’ compensation benefits which were paid to plaintiff, in the event of Schepp’s success in the tort case. Intervenors allege that if Schepp was entitled to recover from Olin, then Bechtel and Industrial Indemnity were entitled to recover with preference and priority any compensation benefits previously paid; and were entitled to a credit for any future compensation benefits to the extent of any award.

The two cases were consolidated for trial; the tort case was tried before a jury, the workers’ compensation suit and intervention was a bench trial. After a bifurcated trial on the merits, the jury determined that Olin Corporation was not liable and therefore denied recovery to plaintiff. Schepp was ordered to pay two-thirds of the costs of the tort proceeding; Bechtel and Industrial were ordered to pay one-third of the costs (which included the expert witness fees). The trial judge ruled that Schepp was entitled to receive workers’ compensation benefits plus legal interest, for an accidental injury which he sustained in the course and scope of his employment. Bechtel and Industrial were ordered to pay all costs in the compensation proceeding, but plaintiff was denied penalties and attorney’s fees.

Schepp, Bechtel, and Industrial Indemnity appealed from the jury verdict rendered in favor of Olin Corporation in the tort suit. In their appeal Bechtel and Industrial Indemnity also seek a reduction in court costs. Schepp devolutively appealed from the workers’ compensation judgment, seeking penalties and attorney’s fees which the trial judge denied. Bechtel and Industrial Indemnity answered that appeal, alleging that no work accident disability had been proven. We will consider both cases herein, but will render a separate opinion in, La.App., 445 So.2d 1286.

FACTS

On April 19,1979, plaintiff was employed as a material expediter by Bechtel. As a material expediter, his duties consisted of securing and supplying materials as needed by the other Bechtel workers. He was assigned to a construction project at the Olin Corporation plant west of Lake Charles. The construction site within the Olin plant was located near the TDI complex.

Mr. Schepp testified at trial that while retrieving a certain type of pipe in the “lay down” (supply) yard, he bent down and then felt a “jolt.” He stated that he felt weak, his eyes and lungs began to burn. He statéd that he started to gag and could not catch his breath. He further testified that he passed out; when he regained consciousness he crawled to a warehouse and then went to the Bechtel first aid station where he received help. The safety representative for Bechtel, Kirby E. White, Jr., called a nurse for Mr. Schepp. Mary Lou Goodwin, a registered nurse who was employed by Olin in the medical department at the time of the incident, came to Mr. Schepp’s aid. He complained of numbness and shortness of breath; his blood pressure reading was extremely high. Mr. White then telephoned for an ambulance which brought Mr. Schepp to the emergency room at St. Patrick’s Hospital in Lake Charles.

Dr. Fritz Lacour examined him'and determined that he was suffering from a pulmonary problem. Doctor Lacour assumed Mr. Schepp’s illness was caused by an inhalation of a toxic substance. Mr. Schepp was treated at the hospital and released several days later.

In his written reasons for judgment on the worker’s compensation claim, the trial judge relied upon the testimony of three physicians who have examined and treated Mr. Schepp during the past four years. The trial judge concluded that Mr. Schepp:

“is suffering from a severe asthmatic condition which causes shortness of breath and wheezing sounds in his chest and that there are marked obstructive defects in his lungs. The physical condition of the claimant can not be cured medically and he is effectively prevented from following his usual occupation, or in fact, any other reasonable gainful occupation.”

The trial judge applied the provisions of the workers’ compensation statutes and rendered judgment for Mr. Schepp, finding him partially disabled and therefore entitled to receive weekly compensation of 66% per cent of the difference between the wages he was earning at the time of the injury and any lesser wages earned in any week of gainful occupation for wages, for a period of 450 weeks. The defendants were to receive credit for payments already made at the time of trial. The judgment also included reimbursement for medical expenses incurred by Mr. Schepp. Costs were assessed against defendants; legal interest on past due installments was to accrue from the due date until paid.

Mr. Schepp claimed that the actions of the defendants, Bechtel and Industrial Indemnity, were arbitrary and capricious in the non-payment of his workers’ compensation benefits. However, the trial judge determined that the defendants’ actions were not without probable cause because the case involved questions of liability and responsibility. Therefore, penalties and attorney’s fees were denied.

The jury verdict held that Olin Corporation, in its plant operation, was not the cause of Mr. Schepp’s accident. In response to submitted interrogatories, the trial jury unanimously found that the plaintiff was not “injured as a result of a chemical or gas exposure at the Olin Corporation plant on April 19, 1979.”

ISSUES

Appellant Schepp alleges that the trial judge erred in denying penalties and attorney’s fees for the workers’ compensation judgment against Bechtel and Industrial Indemnity.

Mr. Schepp further alleges that the jury verdict in the case against Olin Corporation is manifestly erroneous.

Bechtel and Industrial Indemnity allege the tort suit judgment directly conflicts with the workers’ compensation judgment. The appellants further allege that the conclusions of the trial judge and jury should be reconciled and that the decision of the jury should be reversed, entitling appellants to recover on their petition of intervention. Bechtel and Industrial Indemnity argue that the court costs which were assessed against them (⅛ for the tort proceeding and all costs for the workers’ compensation proceeding) were imposed erroneously and should be reduced.

WORKERS’ COMPENSATION

The trial judge was correct in his finding that the medical testimony established that appellant Schepp is suffering from a severe lung ailment. The trial judge was also correct in finding that Mr. Schepp’s pulmonary problem was a result of an injury sustained while in the course and scope of his employment. Guidry v. Serigny, 378 So.2d 938 (La.1979), on remand, 385 So.2d 295 (La.App. 1st Cir.1980), writ denied, 386 So.2d 355 (La.1980). Mr. Schepp’s unexpected and unforeseen condition was produced suddenly and violently on April 19, 1979, with objective signs of injury. The requirements of La. R.S. 23:1021 and La.R.S. 23:1031 therefore were fulfilled. Self v. Riverside Companies, Inc., 382 So.2d 1037 (La.App. 2nd Cir.1980), writ denied, 385 So.2d 793 (La.1980).

In our review of the record, the evidence supports a finding that Mr. Schepp was disabled due to a severe pulmonary condition. Since he sustained a com-pensable work injury he is entitled to workers’ compensation benefits. However, due to the substantial question of liability at issue, the trial judge found that Bechtel and Industrial Indemnity were justified with regard to discontinuing compensation payments. LeBlanc v. Commercial Union Assurance Company, 349 So.2d 1283 (La.App. 1st Cir.1977), writ denied, 351 So.2d 174 (La.1977). Therefore, we find that the trial court properly rejected the employee’s demand for statutory penalties and attorney’s fees in the workers’ compensation proceeding.

We further find that the trial court did not err in rendering the judgment taxing costs (including expert witness fees fixed in the judgment) against the employer and its compensation insurer in this proceeding. Cullivan v. Fish Engineering & Construction Company, Inc., 354 So.2d 597 (La.App. 3rd Cir.1977), writ not considered, 355 So.2d 254 (La.1978); Credeur v. McManus, 175 So.2d 863 (La.App. 3rd Cir.1965). La.R.S. 23:1317 provides that:

“[cjosts may be awarded by the court in its discretion ....” There has been no abuse of that discretion and the judgment will not be disturbed on appeal. White v. E.A. Caldwell Contractors, Inc., 276 So.2d 762 (La.App. 3rd Cir.1973).

LIABILITY

La.C.C. Art. 2317 sets forth the standard governing the imposition of an absolute duty to discover the risks presented by things in one’s custody. Plaintiff claims that Olin Corporation failed to take adequate precautions in preventing a gas or chemical leak from its TDI plant, and that its negligent operation of the process plant caused his injury. The trial jury specifically concluded that Mr. Schepp was not injured by a chemical or gas exposure.

Fritz Lacour, M.D., was the plaintiff’s physician and the first medical doctor to examine plaintiff on April 19,1979. Doctor Lacour qualified as an expert in general and industrial medicine. He testified, under direct examination, that Mr. Schepp’s condition was attributable to gas exposure. However, Doctor Lacour admitted, under cross-examination, that Mr. Schepp had suffered symptoms (including shortness of breath and chest pains) since 1977, when Doctor Lacour began treating him for a variety of pulmonary disorders.

In November, 1980, Mr. Schepp sought the advice of a pulmonary specialist. Jana Kaimal, M.D., diagnosed Mr. Schepp’s pulmonary complaints as asthma. Doctor Kaimal treated Mr. Schepp over a period of time; treatment included hospitalization for testing and diagnosis and also for high blood pressure. Doctor Kaimal testified that asthma is a somewhat common allergic disorder and can be the result of an almost infinite number of causes.

At defendant’s request, Mr. Schepp was examined by Hans Weill, M.D., another pulmonary specialist, associated with Tulane University Medical Center. In his deposition submitted into evidence, Doctor Weill stated that the plaintiff’s chief symptoms, i.e., wheezing, raling, and shortness of breath, strongly indicated an asthmatic condition which pre-existed the date of the alleged exposure to gas.

Additionally, testimony given by Bechtel’s safety representative, Kirby E. White, Jr., indicates that Mr. Schepp's symptoms were more consistent with a heart attack rather than exposure to a lethal gas. Mr. White testified that Mr. Schepp’s principal complaints were shortness of breath and numbness in his arm. Mr. White stated that the usual symptoms of exposure to lethal gas were not complained of by-Mr. Schepp at the time of the alleged incident, i.e., teary, blurring, red eyes; skin irritations, and vomiting.

Further testimony corroborated Mr. White’s statement. When Mr. Schepp arrived at St. Patrick’s Hospital, he reported to the emergency room nurse that he had experienced chest pains just two days before.

Further testimony was rendered by the operations superintendent at the time of the alleged incident, John T. Griffing, who explained the plant records extant on the day of April 19, 1979. The records contained operator’s logs and gas release logs which document accidental releases of gas or chemical occurring at the plant. Mr. Griffing stated that the record did not contain every incident of an accidental leak, but that the logs attempted to report such incidents with as much detail and accuracy as possible.

The jury heard many hours of testimony, studied documentary evidence, and decided that Mr. Schepp was not exposed to any lethal gas or chemical on April 19, 1979.

Olin Corporation is engaged in the manufacture of chemicals, in particular phos-gene gas (made from Carbon monoxide and chlorine), used at the process plant in the production of urethane foams and coatings.

“Liability for ultrahazardous activities * * * involves different considerations than liability under C.C. Art. 2317 for creating or maintaining a thing which presents an unreasonable risk of harm. There are some activities in which the risk may be altogether reasonable and still high enough that the party ought not undertake the activity without assuming the consequences. Such activities include pile driving, storage of toxic gas, blasting with explosives, crop dusting with airplanes, and the like, in which the activity can cause injury to others, even when conducted with the greatest prudence and care. 2 F. Harper and F. James, The Law of Torts, § 14.4 (1956); W. Prosser, The Law of Torts § 78 (4th ed. 1971).
For these particular activities, Louisiana courts have imposed an absolute liability (as contrasted to the strict liability previously discussed), which virtually makes the enterpriser an insurer. The enterpriser, whether or not negligent in any respect, causes the damage, and the injured party recovers simply by proving damage and causation.
In these cases of absolute liability (or liability without proof of negligence or other fault), liability is imposed as a matter of policy when harm results from the risks inherent in the nature of the activity. The steps taken by the enterpriser to protect others from the inherent risks of the activity are not relevant to the determination of liability.”

Kent v. Gulf States Utilities Company, 418 So.2d 493 (La.1982).

Absolute liability will not be imposed when the injured party fails to establish that the risks inherent in the nature of processing lethal chemicals resulted in the harm complained of. The jury concluded that plaintiff did not sustain his burden of proving damage and causation. Therefore, no liability was imposed on the enterpriser. Kent v. Gulf States Utilities Company, at 498.

Our duty as an appellate court has been set forth in Canter v. Koehring Company, 283 So.2d 716 (La.1973). The Supreme Court announced:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.”

At 724.

In Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), the Court explained its previous language and elaborated on the standard to be followed by intermediate appellate courts.

“That standard requires that this Court not disturb the factual findings of the trial court (whether judge or jury) in the absence of manifest error. We also understand that our duty is to review the entire record to determine if there is manifest error in the ultimate conclusion reached by the trial court.
‘Therefore, the appellate review of fact is not completed by reading so much of the record as will reveal a reasonable factual basis for the finding in the trial court; there must be a further determination that the record establishes that the finding is not clearly wrong (Manifestly erroneous).’ Arceneaux v. Domingue, id. at p. 1334.
We will not substitute our own evaluations or preferences for that of the fact trier unless those of the fact trier are clearly wrong.”

Molenaar v. McGill Manufacturing Company, Inc., 410 So.2d 869, 871-872 (La.App. 4th Cir.1982). We find no error in the trial court’s determination. The trial court committed no error in dismissing plaintiff’s suit against Olin Corporation, nor did it err in assessing costs against plaintiff and inter-venors, proportionately.

DECREE

For the above and foregoing reasons, the judgment of the trial judge and the judgment of the trial jury are affirmed.

. Appellate costs in this case are assessed one-half (⅛) to Charles Schepp and one-half (½) to Bechtel and Industrial Indemnity.

AFFIRMED.

      . TDI is an abbreviation of toluene diisocya-nate, the major ingredient for the manufacture of urethane pumps, which is produced by Olin Corporation. Phosgene gas is the reactant that is combined with the organic component of TDI.

      . The parties stipulated that Bechtel and Industrial Indemnity were to be credited $1,974.00 for compensation payments made. The parties also stipulated that plaintiff incurred medical bills which amounted to $3,957.69.

      . La.C.C. Art. 2317 provides in pertinent part:
      "We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. * * * * ”


text:
    Charles SCHEPP, Plaintiff-Appellant, v. INDUSTRIAL INDEMNITY INSURANCE COMPANY, et al., Defendants-Appellees.
    No. 83-310.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.
    Rehearing Denied Feb. 29, 1984.
    Writs Denied April 13, 1984.
    Raleigh Newman, Lake Charles, for plaintiff-appellant.
    Scofield, Bergstedt & Gerard, J. Michael Veron, Lake Charles, for defendant-appel-lee.
    Plauche, Smith & Nieset, Michael J. McNulty, III, Lake Charles, for intervenor-appellee-appellant.
    Before DOMENGEAUX, DOUCET and LABORDE, JJ.
   DOMENGEAUX, Judge.

For the reasons stated in Schepp v. Olin Corporation, 445 So.2d 1280, (La.App. 3rd Cir.1984), handed down this day, the judgment of the trial judge is hereby affirmed. Costs on appeal are assessed one-half (½) against appellant, Charles Schepp, and one-half (Vz) against Bechtel and Industrial Indemnity.

AFFIRMED.


text:
    C & A TRACTOR COMPANY, Plaintiff-Appellee, v. HOLLAND AMERICAN INSURANCE COMPANY, et al., Defendants-Appellants.
    No. 83-321.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.
    Rehearing Denied Feb. 29, 1984.
    Writ Denied April 23, 1984.

      Provosty, Sadler & deLaunay, Albin A. Provosty, Alexandria, for defendants-appellants.
    James Lee and John Bennett, Marksville, La., for plaintiff-appellee-appellant.

      McLure & McLure, John G. McLure, Alexandria, William Yarno, Marksville, for defendant-appellee.
    Before GUIDRY, CUTRER and STOKER, JJ.
   CUTRER, Judge.

This appeal arises out of a suit for damages due to a fire loss of some harvesting equipment (combine).

C & A Tractor Company (C & A), a farm equipment dealer in Marksville, Louisiana, filed suit against Holland American Insurance Company (Holland) seeking to recover the damages due to the fire loss of a combine. C & A, in the alternative, sought recovery from Edgar Coco Agency (Coco) and its errors and omissions insurer, St. Paul Fire & Marine Insurance Company (St. Paul).

Holland denied coverage. Holland filed a third party demand against Elton Bernard, alleging that, if Holland should be cast in judgment, it should have judgment against Bernard, the farmer who had possession of and was using the combine at the time of loss.

Upon trial of the case, the jury made a finding as follows:

“2. In favor of plaintiff, C & A Tractor Company and against defendants, Edgar Coco Insurance Agency and St. Paul Fire and Marine Insurance Company, its insurer, in solido, in the full sum of $62,126.32 plus costs.

Pursuant thereto, judgment was rendered in favor of C & A and against Coco and St. Paul for $62,126.32. The suit was dismissed as to Holland along with Holland’s third party demand against Bernard. Coco and St. Paul appealed. C & A also appealed and answered the Coco and St. Paul appeal contending that it is entitled to judgment against Coco and St. Paul or, if not, it should have judgment against Holland.

This appeal presents two issues:

(1) Whether Holland’s existing “floater policy” with C & A provided coverage of the combine at the time of the loss; and
(2) If Holland’s policy provided no coverage, whether Coco and its errors and omissions insurer, St. Paul, was liable under the facts and circumstances presented.

HOLLAND’S COVERAGE

In February 1981, C & A obtained a new combine from the Sperry New Holland (Sperry) manufacturer. The items had an invoice price of $62,126.32. C & A had a “floor plan” arrangement with Sperry, wherein the combine was consigned to C & A for nine months. During the nine months period, Sperry provided casualty insurance on the equipment. After that period of time, C & A was required to pay Sperry for the combine and to acquire its own insurance coverage if it desired. The combine was scheduled to come off the consignment agreement at the end of November 1981.

In August 1981 (while the combine was still insured by Sperry), C & A, through its manager, Rick Rozas, began negotiations with Bernard, a long-standing customer, for the sale of the combine to Bernard. Bernard was a soybean farmer and harvest time was approaching. In October an agreement between Rozas and Bernard was reached as to price. The combine and header were delivered to Bernard’s farm on October 24, 1981.

As to payment of the purchase price, Bernard told C & A that he would make arrangements with the Cottonport Bank to pay the purchase price around December 1, 1981, which would be after harvest. C & A contacted the Bank and was informed that, barring some unforeseen catastrophe, Bernard’s farming finances at the Bank would be in such a position that a loan could be made for the payment.

On this same date the parties signed a purchase order which contained a notation “purchaser will postdate a check 11/15/81.”

After this conversation and on the same day, Rozas asked Bernard to sign the postdated check (November 15th) for the purchase price. Bernard had felt that, weather permitting, he may be able to finish harvest by that time. Weather and equipment problems caused Bernard to be delayed on his harvest until late December.

C & A waited until late November to present the check for payment. The check was returned as “N.S.F.” C & A’s visit to the district attorney to file charges on the check was unsuccessful as this was a postdated check. After the postdated check was returned, C & A borrowed money from the Cottonport Bank and paid Sperry for the combine.

On December 10th, “Rick” Rozas, realizing that the Sperry insurance coverage had expired, instructed his secretary, Dorothy Pointer, to call Coco to obtain insurance coverage on the combine in question. “Rick” Rozas testified that, after the postdated check bounced, he considered that C & A still owned the combine and that is the reason he became concerned about coverage.

Holland had created a special insurance package for the members of Deep South Equipment Dealers’ Association. This coverage, called a “floater policy,” included casualty protection for the dealer’s inventory stock. C & A was a member of the association and had previously purchased such a policy from Coco. The policy covered C & A’s inventory stock up to the amount of $75,000.00.

Dorothy Pointer, C & A’s secretary and bookkeeper, called Coco and talked to Henrietta Bordelon who had been attending to the C & A account. Ms. Pointer told Ms. Bordelon that they wanted to obtain coverage on the combine in question. She gave Ms. Bordelon the serial numbers and price of the combine. Ms. Bordelon told her that she would add the combine to C & A’s existing “floater policy” and increase the amount of coverage.

The combine was added to C & A’s “floater policy” and on December 25th, Rozas received word that the combine had been destroyed by fire while being used by Bernard. Coco was notified of the loss that same day and again Coco assured Rozas that the loss was covered by Holland. Later, Holland refused to pay for the loss on the ground of no coverage.

Holland’s “floater policy” contained the following exclusion:

“2. This policy does not cover:
* * * * sfc *
(b) Property sold by or under encumbrance to the Insured or property leased or rented by the Insured to others after it leaves the custody of the Insured or an employee of the Insured (but this exclusion shall not apply to property in the custody of a carrier for hire for the purpose of delivery at the risk of the Insured);”

This provision would clearly exclude coverage to the combine if a sale had been confected between C & A and Bernard. The question then arises as to whether such a sale took place.

The necessary elements of a sale are set forth in LSA-C.C. articles 2439 and 2456. According to these articles, ownership and the risks attendant with that ownership pass to the purchaser of a movable as soon as there is an agreement between the seller and the purchaser regarding the object of the sale and the price to be paid, even if the object has not been delivered to the purchaser or if the price has not been paid. We have previously set forth the circumstances surrounding the transfer of this combine to Bernard in October 1981. The parties agreed upon the thing (combine) and the price. When this occurred, sale was complete under our law. The sale was made on credit. A credit sale is evidenced by the fact that a postdated check was given by Bernard and the information obtained by C & A from the Cottonport Bank as to Bernard’s ability to obtain funds after harvest.

In a credit sale in this state, the seller does not retain title to the property. The ownership is transferred to the buyer and the seller is afforded a vendor’s lien by law. Ownership vested in Bernard in October 1981, and, as such, the “floater policy” previously issued by Holland to C & A to provide coverage to its inventory stock, provided no coverage on this combine. Holland was correctly dismissed from the suit.

C & A’s contention, that Holland’s policy should have been reformed to provide coverage, is without merit. Under the facts of this case, as will be discussed later in this opinion, there was never any intention of the parties to extend the policy to a non-owned combine.

LIABILITY OF COCO AGENCY

As to the duties of an insurance agent, this court has stated:

“The law is well settled that an insurance agent, who undertakes to procure insurance for another, owes an obligation to his client to use reasonable diligence in attempting to place the requested insurance and to notify the client promptly if he is unable to do so. The client can recover from the agent the loss he sustains as a result of the failure to procure such coverage if the agent’s conduct warrants the assumption by the client that he is so covered. Stacy v. Petty, 362 So.2d 810 (La.App. 3 Cir.1978); Karam v. St. Paul Fire & Marine Insurance Company, 281 So.2d 728 (La.1973).”

Trahan v. Bailey’s Equipment Rentals, Inc., 383 So.2d 1072, 1076 (La.App. 3rd Cir.1980), writ den., 390 So.2d 1342 (La.1980), and 391 So.2d 455 (La.1980).

As we examine the facts in this case we conclude that Coco used reasonable diligence to provide the requested insurance.

Ms. Pointer had been working with C & A for six years as a bookkeeper and secretary. She was well acquainted with the routine business affairs of C & A. She testified that, at the time she called Ms. Bordelon at Coco for coverage of the combine, she considered C & A as being the owner of the combine since the postdated check had bounced and Bernard had made no payment otherwise on the combine. Her testimony in this regard was as follows:

“Q. So, then, as far as you were concerned when you called her, C & A Equipment Company owned the combine?
“A. In my mind, yes, whether it’s on consignment or in paid inventory. As long as it’s on the lot, I consider it owned by C & A.
“Q. All right. Did you consider it owned by Elton Bernard?
“A. No, sir.
“Q. Did you consider it owned by anyone else?
“A. No, sir."

As to the conversation with Ms. Borde-lon, Ms. Pointer could not recall the details but did remember that she gave Ms. Borde-lon the serial number and price of the combine. She also stated that she told Ms. Bordelon that a customer had “finances pending.”

C & A was owned by “Buster” Rozas and operated by his son, “Rick.” “Buster” Rozas operated several businesses around the Marksville area. He testified that he * would assist his son occasionally in the operation of C & A. He stated that they were anxious to sell the combine in question as it had been on their lot for several months. He was well acquainted with Elton Bernard who was a regular customer of C & A. After finding that Bernard was interested in the combine, he entered into the negotiations with Bernard. The price had been agreed upon by Bernard and “Rick” Rozas. “Buster” Rozas then entered the picture when the financing of the combine took place.

“Buster” Rozas went to the Bank with Bernard to discuss Bernard’s prospects of getting a loan to pay for the machine when Bernard’s harvest was completed. The Bank official told them that he felt that when harvest was completed they would be able to loan Bernard the money to pay for the machine. Rozas stated that he did not feel real comfortable with the Bank’s response and, after he and Bernard went back to C & A’s office, a discussion ensued in regard to the postdated check. Bernard felt that, with this additional combine, he could complete his harvest around December 1st. After further discussion it was agreed that the check would be dated November 15th. After a deposit of the check in late November and a return of N.S.F., “Buster” Rozas became concerned about insurance coverage. He testified very candidly that he pulled the “biggest boner of all” when he accepted the postdated check.

He stated that after the check bounced, “I figured the combine was mine and I’m talking about C & A Tractor.” He then told his son to see that coverage was obtained on behalf of C & A.

“Rick” Rozas testified that this was the first time he had used a postdated check as a procedure for payment. He admitted that, on December 10th, when he instructed Ms. Pointer to call Coco for coverage, he considered C & A to be the owner of the combine.

We have pointed out the fact that “Buster” Rozas, “Rick” Rozas and Ms. Pointer all considered C & A to be the owner of the combine, at the time Ms. Pointer called Ms. Bordelon to provide coverage. This testimony supports Ms. Bordelon’s statement that she was told by Ms. Pointer that the combine was inventory stock and thus owned by C & A at the time of the call.

Ms. Bordelon testified that, when she received the call from Ms. Pointer, she made notes on a memorandum sheet in order to properly fill the request of C & A. This memorandum was kept in C & A’s file and introduced into evidence in the case. Ms. Bordelon’s testimony pertaining to this memorandum was as follows:

“Q. Okay. Now, Mrs. Bordelon, Mr. Bennett showed to Mr. Coco a xerox copy of a document. Do you have a memo in your possession that would reflect anything concerning your conversation of December 10, 1981 with Mrs. Pointer?
“A. Yes, I have the original.
“Q. Now, would you look at that. Is there anything written on it?
“A. A full description of the combine and the parts.
“Q. Excuse me, a minute. Answer my question first. Anything written on it?
‘A. Yes.
“Q. All right. Now, you’re looking at — are these things written on both sides of it?
“A. Yes, there is.
“Q. All right. What side are you looking at?
“A. The description of the combine.
“Q. Whose writing is that?
‘A. It’s mine.
“Q. When did you make that writing?
‘A. When I got the message on 12-10.
“Q. Where did you get the information that is on that piece of paper?
‘A. From Dorothy at C & A Tractor.
“Q. Now, there — what is at the top?
‘A. It says 1980 TR-70 and then she changed it to an 85 combine.
“Q. What appears next?
“A. This paid inventory.
“Q. Where did the two words paid inventory come from?
“A. Dorothy.
“Q. What does paid inventory mean to you?
“A. It’s equipment that the insured owns.
“Q. What comes next?
“A. The value.
“Q. What comes under that?
‘A. Owned by C & A Tractor.
“Q. Who gave you the value?
‘A. Dorothy.
“Q. Who said owned by C & A Tractor?
‘A. Dorothy.
“Q. What comes next?
‘A. Increase value of floater.
“Q. And, then, what comes after that?
“A. Serial number.
“Q. All of that is your writing?
“A. Yes, uh-huh.”

Ms. Pointer, as we have previously said, could not recall the details of the conversation with Ms. Bordelon.

We have detailed the testimony of these parties which leads us to the conclusion that Ms. Bordelon was informed that the combine was “inventory stock” and owned by C & A when the request for coverage was made by Ms. Pointer. Having been informed as such by C & A, she added the combine to C & A’s existing “floater policy” and the limits of coverage were increased later to $140,000.00. By adding the combine to the “floater policy,” coverage would have existed if the combine was inventory stock and owned by C & A. Ms. Bordelon, after discussing the request with Andre Coco, fulfilled the request of C & A according to the facts as related to her by Ms. Pointer. The assumption by “Buster” Rozas, “Rick” Rozas and Ms. Pointer that the combine was still owned by C & A when the request for coverage was made on December 10, 1981, was error which led to the lack of coverage. Ms. Bordelon was given no information that would have led her to believe that any other type of coverage should be provided.

Ms. Bordelon stated that, if she had been told that Bernard was the owner at the time, with C & A as lien holder, she could have placed the coverage with another insurance company, listing Bernard as owner and C & A as lien holder. Since she received no such information she added the combine to the “floater policy.”

We are fully aware that a jury finding should not be overturned unless it is found that the jury was clearly wrong in its finding. We have thoroughly examined the record and have concluded that Ms. Borde-lon and Andre Coco used reasonable diligence in fulfilling the request according to the facts given by C & A. Unfortunately those facts were erroneous and C & A had no coverage at the time of the loss. The lack of coverage, however, cannot be attributed to any lack of diligence by Coco.

We conclude that the jury was clearly wrong in its conclusion that Coco and its insurer are liable for the loss in this case. We must reverse the trial court judgment in this regard.

For these reasons, the portion of the trial court judgment awarding C & A Tractor Company $62,126.32 against Coco Insur-anee Agency and St. Paul Fire & Marine Insurance Company is hereby reversed and dismissed. In other respects the trial court judgment is affirmed.

The costs of the trial court and this appeal shall be paid by plaintiff, C & A Tractor Company.

REVERSED IN PART; AFFIRMED IN PART.

      . We shall discuss the details of this conversation later in this opinion.

      . LSA-C.C. art. 2439 provides:
      "The contract of sale is an agreement by which one gives a thing for a price in current money, and the other gives the price in order to have the thing itself.
      "Three circumstances concur to the perfection of the contract, to wit: the thing sold, the price and the consent."
      LSA-C.C. art. 2456 provides:
      "The sale is considered to be perfect between the parties, and the property is of right acquired to the purchaser with regard to the seller, as soon as there exists an agreement for the object and for the price thereof, although the object has not yet been delivered, nor the price paid.”

      . Louisiana does not recognize the common law concept of the "conditional sale" of a movable, whereby the seller retains title until the price has been paid. Succession of Dunham, 408 So.2d 888 (La.1981); Haymon v. Holliday, 405 So.2d 1304 (La.App. 3rd Cir.1981).

      . LSA-C.C. art. 3227 provides:
      "He who has sold to another any movable property, which is not paid for, has a preference on the price of his property, over the other creditors of the purchaser, whether the sale was made on a credit or without, if the property still remains in the possession of the purchaser.
      "So that although the vendor may have taken a note, bond or other acknowledgment from the buyer, he still enjoys the privilege.”

      . “A. Yes, Mr. Bernard met me at the C & A Tractor place and we met with Rick and like I say, I had never gotten into, this deep into any deal, and I guess maybe I pulled the biggest boner of all. I think it was at my suggestion that I accepted a post dated check. I wanted to post date it fifteen days. He asked for twenty-one days and I had to settle for that.”

      . "Buster” Rozas' testimony supports the fact that the memo was part of C & A’s file. He testified that on the day of the loss, he was discussing the situation with Andre Coco and that he noticed the memorandum slip in Coco’s file.


author: STOKER, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Geraldine FRUGE, Defendant-Appellant.
    No. CR83-333.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.
    Writ Denied March 23, 1984.

      Stewart Thomas, Jennings, Richard P. Ieyoub, Lake Charles, for defendant-appellant.
    W. Gregory Arnette, Jr., Dist. Atty., W.J. Riley, III and Jacquelyne Heinen, Jennings, for plaintiff-appellee.
    Before GUIDRY, CUTRER and STOKER, JJ.
   STOKER, Judge.

Defendant, Geraldine Fruge, was indicted for the crime of theft in excess of five hundred dollars, a violation of LSA-R.S. 14:67. She was tried before a six person jury which found her guilty as charged. The trial judge sentenced her to five years at hard labor.

Defendant appeals on the basis of seven assignments of error; error No. 1 concerns the sufficiency of evidence, errors Nos. 2 through 4 concern specific errors committed during the course of the trial and also the conduct of the prosecutor, errors, Nos. 5 through 7 concern the sentencing proceedings and the sentence itself. We affirm her conviction and remand for resen-tencing.

PACTS

Geraldine Fruge was employed by the City of Jennings, Louisiana as a bookkeeper for the City Clerk’s office from approximately July of 1979 to June of 1980. Her duties included counting and reconciling the daily cash receipts, posting these amounts in the daily cash journal, and preparing the daily bank deposit slips. She was responsible for seeing that the money received, the entries in the daily cash journal and the bank deposits corresponded.

An audit of the fiscal year of July 1,1979 through June 30, 1980 revealed discrepancies between revenues and bank deposits. The auditors discovered, through a reconstruction and review of the books, a pattern in which on various days during the audit period there would be $100, $200 or $300 discrepancies between actual revenues and bank deposits.

A conservative estimate by one of the auditors put the total shortage between actual revenues and bank deposits at approximately $9,000.

ASSIGNMENT NO. 1

Defendant urges that the evidence presented was not sufficient to sustain her conviction of theft under LSA-R.S. 14:67 because it did not exclude every reasonable hypothesis of innocence. The State’s case against defendant consisted primarily of circumstantial evidence.

The proper constitutional standard for appellate review of the sufficiency of the evidence to support a criminal conviction is that enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). For circumstantial evidence to convict, “it must exclude every reasonable hypothesis of innocence”. LSA-R.S. 15:438. The Jackson standard is applicable in cases involving both direct and circumstantial evidence. State v. Smith, 441 So.2d 739 (La.1983); State v. Sutton, 436 So.2d 471 (La.1983). According to Sutton:

“An appellate court reviewing the sufficiency of evidence must resolve any conflict in the direct evidence by viewing the evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime.”

Viewing the overall evidence in this manner, we find that there was sufficient evidence for the jury to conclude that Mrs. Fruge was guilty beyond a reasonable doubt.

Establishment of the State’s case involved essentially two aspects (1) to prove that a theft of money occurred and (2) to prove that defendant was the thief. (See State v. Pittman, 368 So.2d 708 (La.1979) concerning the elements of the crime of theft.) To prove that a theft of money occurred, the State relied on the testimony of two CPA’s who performed the actual audit for the City of Jennings. By reconstruction and review of the City’s books and records the CPAs discovered discrepancies between actual revenues and bank deposits. Amounts of money actually received by the City were never deposited at the bank. The discrepancies consisted of a pattern of shortages in actual revenues. Entries were made to make the books appear to be balanced indicating a cover up. These shortages were in round numbers of $100, $200 and $300 and occurred every few days. In their opinion, these shortages were explainable only as thefts.

To prove defendant was the thief, the State relied on the testimony of her former co-workers. This testimony revealed that defendant was in the unique position of knowing whether money was missing. Defendant, as bookkeeper, was responsible for counting and reconciling the daily cash receipts, posting these amounts to the daily cash journal and preparing the daily bank deposit slips. Defendant never reported any of the shortages discovered by the auditors. Additionally all the CPA’s who testified as experts, both for the State and for the defense, agreed that due to the weak internal controls within the City’s accounting system that defendant, as bookkeeper, was in a good position to steal City funds.

To be more specific concerning the evidence which the jury heard, but without detailing each transaction and the evidence evidencing the transactions, we will give the following summary. All of the transactions occurred over a period of approximately nine months. During the period defendant was not the only city employee who had access to the cash register used in receiving city revenues in the form of taxes, fees and various charges. These other employees were in a position to take money from the cash register and pocket it. However, defendant had control of the system and was in a position to know at the end of each day if there were any shortages. However, her records failed to disclose any of the shortages which, in increments generally of $100, $200 or $300, occurred on the average of four or five times a month to equal over $9,000. This amounts to an average of approximately $1,000 per month.

The cash register in question was equipped with what was referred to as an internal or permanent tape. Defendant had no access to this tape. A duplicate of the permanent tape was available to defendant at the end of each day. (Both tapes were referred to as “Z-out tapes,” but as explained one was not available to defendant but the other was available to her on a daily basis at the end of each day.) The Z-out tape permitted defendant to compare the total sums rung up in a given day with the amount of cash and checks on hand at the end of the day. If the count showed more or less in cash and checks than the total shown on the daily Z-out tape, standard procedure called for a search for the error or discrepancy. Minor discrepancies of a few cents or dollars were tolerated.

Errors resulting in discrepancies could arise from errors in transactions such as overrings or underrings, giving the wrong change to a customer, receiving less than the amount supposed to be paid or checks being missing.

An overring or underring is the result of human error in either punching an amount in excess or less than the amount received. For example, if $132 was received but the operator hit the “two” key instead of the “one” key, the machine would ring up $232. If the overring was not noticed at the time, the total of funds in the cash register would show up $100 short when compared with the Z-out tape total.

In reconciling matters at the end of each day (or the following morning), any errors found would be noted on the daily Z-out tape for the day so as to bring the record reflected by the Z-out tape in accord with the receipts of revenues entered in the City’s books. The City’s books contained columns for overages and shortages. For any day in which there was a discrepancy between the total indicated by the daily Z-out tape and actual receipts on hand which could not be reconciled, it was defendant’s duty to enter the amount of the discrepancy in the appropriate column as an overage or shortage. The actual receipts were then deposited in various banks and savings and loan accounts by the City Clerk. The bank deposit slips were made up by defendant and given to the City Clerk.

The discovery of the shortages involved in this case came to light when the City’s auditors found that the daily totals in the City’s books frequently showed incorrect totals. Significantly the daily Z-out tapes for the period in question were missing although the daily Z-out tapes for the periods before and after this period were preserved and were available. The auditors resorted to the internal or permanent cash register Z-out tapes to reconstruct what the daily totals shown on the daily Z-out tapes would have been. A consistent pattern of revenues exceeding deposits was disclosed and these were, as has been noted, generally in even hundred dollar amounts. In running the totals in the City’s cash receipts journal the auditors found that the totals were incorrect. As incorrectly shown, the cash receipts journal entries (totals) agreed with the deposits, but the totals reconstructed from the internal Z-out tapes did not. Thus it appeared that, by entering incorrect totals in the City’s cash receipts journal, the journal was made to agree with the deposits.

Presented with the above facts the jury was confronted with a pattern extending over the nine-month period in which there were frequent and numerous shortages in even hundred-dollar amounts. The shortages were not reflected on the cash receipts journal, but were covered by incorrect totals apparently designed to cover up the shortages. Also it was defendant who made the entries and it was she who reconciled the receipts with the totals shown on the daily Z-out tapes. Assuming that someone other than defendant did take cash from the register, defendant would know of it when she checked up on a daily basis. She could have protected herself by reporting significant shortages and by entering the shortages in the journals. In such a case, erroneous total entries'would not have been necessary in order to have the totals in accord with the deposits.

On the basis of evidence reflecting the pattern outlined above the jury could have found defendant guilty as charged under the standard laid down in Jackson v. Virginia, supra. The evidence, direct and circumstantial, supports the jury’s finding that defendant was guilty beyond a reasonable doubt. This assignment is without merit.

ASSIGNMENT NO. 2

Defendant urges that the trial court erred by improperly limiting the scope of the examination of various expert witnesses. In her brief, the defendant contends that the trial judge did not allow defense counsel to cross-examine expert witnesses pertaining to shortcomings in the accounting system used by the City at the time defendant was employed by the City. Defense counsel claims that by this testimony he could have shown that the accounting system was so complicated and deficient, that errors could easily have been made by defendant, as bookkeeper, thus establishing a reason for the shortages. This testimony was excluded because these experts had evaluated the City’s accounting system at a time prior to the period for which defendant was indicted. Defendant claims that the rulings of the trial judge excluding this evidence was an abuse of discretion which seriously prejudiced her right to a fair trial.

Although defendant refers to “cross-examination” in her brief, the record indicates that the only time the trial judge limited this type of testimony was during the direct examination of defendant’s own expert witnesses. In either case, defendant’s assignment is without merit.

The record indicates that defense counsel was allowed to cross-examine at length the State’s experts (the CPAs who performed the audit of the City’s books during the time defendant was employed by the City) regarding the complexities and the shortcomings of the City’s accounting system during that time period.

The record also indicates that defense expert witnesses (CPAs who had audited the City’s books for periods prior to and after the time defendant was employed by the City,) were allowed to testify concerning the shortcomings of the City’s accounting system during the periods that they audited the City’s books. They were also permitted to give their opinions, as experts, on the shortcomings of the accounting system during the period defendant was employed by the City.

Defendant even admits in her brief that the experts for both the State and defense were permitted to testify concerning the shortcomings of the City’s accounting system. This assignment is without merit.

ASSIGNMENTS NOS. 3 AND 4

By these assignments defendant urges that during her case in chief the trial judge caused and permitted prejudicial delay by (1) permitting the State to repeatedly make and argue groundless objections to questions posed to defense witnesses and (2) failing to rule promptly on these objections. The jury was removed on numerous occasions when these objections were made. Because the evidence was very complicated, demanding a coherent and orderly presentation to the jury, defendant claims that these allegedly needless interruptions and delays prevented her from obtaining a fair trial.

A trial judge is given wide discretion in controlling the conduct and orderly process of trial. His rulings in this respect will not be reversed absent an abuse of discretion. State v. Passman, 345 So.2d 874, 875 (La.1977); LSA-C.Cr.P. art. 17.

The record indicates that the trial judge did remove the jury several times during defendant’s case in chief. This happened when the State objected to defense experts’ testimony concerning shortcomings in the City’s accounting system for the year during which defendant was employed by the City. The basis for the objections were that the experts had no personal knowledge of shortcomings during this period.

The trial judge alone is vested with the responsibility of determining the admissibility of evidence. In each instance, the jury was removed so that the judge could properly rule on the admissibility of this evidence without prejudicing the jury. Under these circumstances, and especially in view of the complexities of proof in a case such as this, we find no abuse of discretion.

While the State may have been over-zealous in making objections, there is neither evidence that the jury was influenced by the interruptions complained of nor that they contributed to the verdict. No prejudice has been shown which would warrant a reversal. This assignment is without merit.

ASSIGNMENTS NOS. 5, 6, & 7

These three assignments of error concern defendant’s sentence. Defendant urges that the trial judge erred in (1) failing to give due weight and consideration to the findings and recommendations contained on the presentence investigation report, (2) failing to comply with the requirements of LSA-C.Cr.P. art. 894.1 and (3) imposing an excessive sentence.

The trial judge sentenced defendant to five years at hard labor. In the words of the trial court the reasons given for sentence were (1) “those that are set forth in 894.1A” (2) "... that the Defendant still maintains that she did not take this money ...” (3) “... there’s no question in the Court’s mind as to your guilt. This was a systematic taking, amounted to $100.00, $200.00, $300.00, almost every other day ...” and (4) “It is also the history of this Court that jail or penitentiary time is given for embezzlement without exception, ...”. No other reasons were given by the judge.

The presentence investigation report concluded with recommendations from the Mayor of Jennings, the present City Clerk, the City Attorney and the investigation officer who prepared the report. They all agreed that defendant should receive a suspended sentence and be placed on probation. Restitution and counseling were also recommended. The report indicates that defendant is forty-five years old and a lifelong resident of Jennings. She is married and has four children, the youngest of whom is twelve and still lives at home. Another daughter, dying of cancer, has left with her whereabouts unknown and defendant is taking care of that daughter’s two young children. Although defendant has no prior criminal record, adult or juvenile, she admits to taking money from a former employer but states the money was repaid the following week. She reports having had two “nervous breakdowns” for which she was treated twenty three years ago. She attends church regularly and has taught religion for ten years.

A sentence within statutory limits may still violate defendant’s constitutional right against excessive punishment. A trial court is given wide discretion in imposing a sentence within statutory limits and such a sentence should not be set aside as excessive absent an abuse of discretion. State v. Bing, 410 So.2d 227 (La.1982).

The considerations listed in C.Cr.P. art. 894.1 provide a method for particularizing sentences of individual defendants. Where the trial judge imposes a sentence without adequate compliance with the mandatory requirement of C.Cr.P. art. 894.1 (that he state the considerations and the factual basis for his sentence), the sentence imposed may be vacated and the case remanded for resentencing in the event that the reasons for an apparently severe sentence in relation to the particular offender and the actual offense committed do not appear in the record. State v. Cox, 369 So.2d 118 (La.1979).

Although a trial judge is not bound by the presentence report, the recommendation should be seriously considered in light of the findings contained within it. State v. Bing, supra.

The defendant received a favorable presentence report recommending probation and restitution. We find that the trial judge failed either (1) to give due weight and consideration to the presentence report or (2) to justify this failure. Also the trial judge failed to adequately comply with the requirements of C.Cr.P. 894.1.

Furthermore, we find disturbing the trial court’s statement that it is the history of the Thirty-first Judicial District Court to require service of imprisonment in embezzlement cases. Irrespective of any validity such a policy may once have had, the enactment of the sentencing guidelines contained in C.Cr.P. art. 894.1 did away with such validity. An inflexible policy of imposing a prison sentence violates two principles laid down in the sentencing guidelines. It is manifest under these guidelines that the trial court must give consideration to probationary treatment before requiring actual service of a period of extended imprisonment or justify its failure to impose a probationary sentence.

Secondly, to inflexibly follow a policy with reference to certain types of crimes obviously makes it difficult for the sentencing judge to individualize the sentence. By remanding this case for resentencing we will give the trial judge the opportunity to individualize the sentence, and, if the trial court continues to feel that a probationary sentence is not in order, the trial court may buttress its sentence with such explanation as will justify such treatment.

For the reasons given defendant’s conviction is affirmed. However, the sentence is vacated and the case is remanded for re-sentencing in accordance with the views expressed herein.

CONVICTION AFFIRMED; REMANDED FOR RESENTENCING.