author: YELYERTON, Judge.

text:
    Stanley E. O’QUINN, et ux., Plaintiffs-Appellees, v. HAAS INVESTMENT COMPANY, INC., Defendant-Appellant.
    No. 83-960.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.

      Laborde & Lafargue, David Lafargue, Marksville, for defendant-appellant.
    William J. Bennett, Marksville, for plaintiff-appellee.
    Before GUIDRY, STOKER and YEL-VERTON, JJ.
   YELYERTON, Judge.

Haas Investment Company, Inc., the loser in consolidated possessory and damages actions, appeals the judgment arguing that the evidence was insufficient to prove the elements of a possessory action, and further urging that damage awards for mental anguish are not allowable in a case of disturbance of possession of an immovable. Appellant also complains of the amounts of the awards, and the plaintiffs-appellees, two brothers O’Quinn and their wives, answering the appeal, seek an increase in the awards. We find no merit to any assignment of error raised by any party, and we affirm.

Stanley and Grace O’Quinn, husband and wife, brought a possessory action against this defendant, and later filed a separate action for damages arising out of the same disturbance of possession. David and Opal O’Quinn filed a third suit, combining a pos-sessory action and damage claims. These three cases were consolidated for trial. All cases are appealed. We have chosen the captioned case as the vehicle for our opinion, but separate judgments are being handed down this date in the other two cases: O'Quinn v. Haas Investment Company, Inc., 458 So.2d 617 (La.App. 3rd Cir.1984); and O’Quinn, Jr. v. Haas Investment Company, Inc., 458 So.2d 617 (La.App. 3rd Cir.1984).

The issues are three: (1) whether plaintiffs proved the elements required for a possessory action, (2) if so, whether they are entitled to damages for mental anguish, and (3) if so, whether the amount awarded is either too high or too low. We will discuss these issues after first giving the reader a brief explanation of the basic facts.

FACTS

The immovable property in this dispute is located in the northeast part of Evangeline Parish near its boundary with Avoyelles. The disturbance was the construction of a north-south fence between the property of the Haas family on the east and the O’Quinn homes on the west. The fence, erected by the appellant, Haas Investment Company, Inc., lessee of the Haas family property; was put on a line some 48 feet west of the eastern limits of the property of which the O’Quinns claimed possession. The fence went across David’s yard beside his house, and south from there it went onto brother Stanley’s land which was under cultivation. The building of the fence began on June 18, 1981, and was halted the next day when plaintiffs complained. The possessory actions were filed in December of that year.

THE POSSESSORY ACTIONS

Under La.C.C.P. art. 3658, to maintain the possessory action the possessor must allege and prove that:

“(1) He had possession of the immovable property or real right therein at the time the disturbance occurred;
“(2) He and his ancestors in title had such possession quietly and without interruption for more than a year immediately prior to the disturbance, unless evicted by force or fraud;
“(3) The disturbance was one in fact or in law, as defined in Article 3659; and
“(4) The possessory action was instituted within a year of disturbance.”

The trial court found that all elements of Article 3658 had been proved.

We agree with these factual findings. Plaintiffs testified that, at the time of the disturbance, they were in possession of property to the east up to an old fence line. The wire fence itself was gone, but mature trees that had grown up along the fence, while it was there, made an unmistakably clear line of demarcation north and south, a line described by plaintiffs in their testimony, clearly visible in photographs in evidence, and shown on the various surveys introduced at trial. The photographs, taken immediately after the disturbance, showed a newly constructed fence very close to the east side of David’s house, and a well-manicured yard from the edge of the house on beyond the new fence to the old tree line. On the other side of the tree line was a cultivated field. Down south by Stanley’s property, the pictures showed, just as the witnesses testified, that the new fence was being constructed in the rows of a field under cultivation with what appeared to be soybeans, and that an old tree line stood along the eastern edge of that field. Thus it is that the evidence supports a finding of corporeal possession, one of the ways that the possession requirements are satisfied (La.C.C.P. 3660), at the time of the disturbance.

The plaintiffs established not only their possession of the disputed strip at the time of the disturbance, but also the additional element that they had been in possession for more than a year immediately prior to the disturbance. As the Supreme Court said on rehearing in City of New Orleans v. New Orleans Canal, Inc., 412 So.2d 975 (La.1981):

[1] What constitutes possession depends largely on the nature of the property. As noted by this Court in Liner v. Louisiana Land and Exploration Co., 319 So.2d 766 (La.1975):
“The concept of possession is neither simple nor precise. (See Riseman, Elementary Considerations in the Commencement of Prescription on Immovable Property, 12 Tul.L.Rev. 608 (1938). The quality of possession required in a particular case depends not only on its classifications as good faith or bad faith possession, but also on the type of land in dispute.”
Further, where an individual claims by corporeal detention alone and without title, he must show an adverse possession within enclosures. Norton v. Addie, 337 So.2d 432 (La.1976). See also 2 Civil Law Treatise (2 Ed.Sec. 212). “Enclosed” does not necessarily mean “fenced in”, but does require “that the land actually, physically, and corporeally possessed by one as owner must be established with certainty, where by natural or by artificial marks; that is, that they must be sufficient to give definite notice to the public and all the world of the character and extent of the possession, to identify fully the property possessed, and to fix with certainty the boundaries or limits thereof.” Hill v. Richey, 221 La. 402, 59 So.2d 434 (1952).
[2] The corporeal possession required to institute a possessory action corresponds with the possession necessary for acquisitive prescription of thirty years. Norton v. Addie, supra; Liner v. Louisiana Land & Exploration Co., supra. Consequently, the possession must be open, continuous, public, unequivocal and uninterrupted with the intent to possess as owner. Succession of Kemp v. Robertson, 316 So.2d 919 (La.App., 1975), writ den. 320 So.2d 906. The intent to possess as owner cannot be inferred when the circumstances are insufficient to give reasonable notice to the public and the owner of the property that the possessor is unequivocally possessing as owner. Woodell v. Roberts, 329 So.2d 858 (La.App.1976), writ ref. 333 So.2d 248 [ (La.1976) ].

The trial judge was satisfied, based on the undisputed testimony of the plaintiffs, that they and their ancestors in title possessed to the tree line for more than the requisite one year before the disturbance. There was no error in this finding of fact.

The construction of the fence was clearly a disturbance in fact of plaintiff’s possession as that, the third requisite of the pos-sessory action, is defined in C.C.P. 3659.

Finally, the suits were brought in December of the same year the disturbance occurred in June, thus satisfying the fourth requirement of the article.

Defendants argue that plaintiffs did not prove the required possession because they did not prove the extent of their possession. This argument is based on the disparity between two surveys stipulated into evidence. One survey puts the old fence line (the tree line) to the west of the surveyed boundary while the other puts it to the east. Arguing that its survey is superi- or to the other, defendant claims that, even if plaintiffs possessed to the old fence line, this was short of the true boundary, where the new fence was constructed.

We reject this argument. Which of the two surveys is correct cannot be determined from the record, but this determination is unnecessary. Each was introduced by stipulation without the accompanying testimony of the surveyors, and it would be arbitrary for this court to pick one over the other for accuracy. All that they reflect is that a survey difference of opinion exists. What is important to our case is whether the plaintiffs proved their corporeal possession, and fixed with certainty the limits of that possession. The trial judge determined that the tree line clearly established the limits of their possession, and our study of the testimony and photographs supports this conclusion. We find no error in the trial court’s determination that plaintiffs proved the elements of a possessory action.

DAMAGES

The trial court awarded damages for mental anguish totaling $5,000, apportioned: $2,000 for David and $1,000 for Opal O’Quinn, and $1,000 each for Stanley and Grace O’Quinn.

The defendant contends that the trial court erred in including mental anguish, humiliation, and embarrassment as elements in its award of damages for disturbance of possession of an immovable.

Under LSA-C.C.P. art. 3662(3) the court in a possessory action is authorized to award damages to which a party is entitled and which he prayed for. In a case where the evidence shows that the disturbance of possession amounted to a trespass, damages are to be measured in accordance with the law of trespass. Garrett v. Martin Timber Company, Inc., 391 So.2d 928 (La.App. 2nd Cir.1980), writ denied 397 So.2d 804 (La. 1981).

In a case of wanton and willful trespass, committed without a vestige of legal right or good faith, an award for mental anguish, humiliation and embarrassment is appropriate. Loeblich v. Garnier, 113 So.2d 95 (La.App. 1st Cir.1959); Thibodeaux v. Western World Ins. Company, 391 So.2d 24 (La.App. 3rd Cir.1980).

The defendant contends that it was in good faith since it relied on a survey to determine where the boundary was. We disagree.

We fail to see how defendant can rely on the survey as its defense to bad faith, considering its standing in this case. Defendant was merely a lessee. It had no semblance of a claim as owner. Significantly, it did not have the authority or permission of the owners, its lessors, and was not acting in their behalf, when it unilaterally went on the land in plaintiffs’ possession and built the fence. After the present possessory actions were filed against defendant, the plaintiffs joined as additional defendants the individual owners of the property under lease to Haas Investment. The trial court dismissed the suit against the owners-lessors when it became evident that they had neither authorized nor permitted the construction of the fence by their lessee. On this appeal no one disputes the propriety of that dismissal.

It could hardly be said that defendant was protecting its possession under its lease when it built the fence, because the evidence is quite clear that from the time it went into possession of its leased property until the time it built the new fence, it was not in possession of the disputed strip. On June 18, 1981, defendant put a fence 15 feet from David’s house cutting off 48 feet of his yard, and extended the fence south right down the middle of a row of Stanley’s growing soybean field. The boundary between the properties and the fact that the O’Quinns were possessing the property is clearly apparent in the photographs in evidence. The farm superintendent of the defendant who supervised the construction of the fence testified that the old fence tree line was clearly visible. There is no question that the O’Quinns had possessed this property for many years. That someone was in possession of this property other than itself could hardly have been more obvious to defendant.

To escape a finding of bad faith, defendant would have to show something more than that there existed a 1980 disputed survey showing where their lessors’ property line should be. That survey had been obtained by its lessors, not by defendant. Without the authority of its lessors, defendant had no right, under the pretext of relying on that survey, to expand its lease by forcibly taking possession of land obviously in the possession of another.

In Garrett v. Martin Timber Company, Inc., supra, the trespasser was found to be in good faith where he relied on a survey of the property to cut timber and crossed onto plaintiff’s property even though there were remnants of an old fence. The court found that it was not unreasonable for the loggers to believe the old fence had been abandoned.

In the present case the defendant actually had to remove some other fences on David O’Quinn’s land in order to get on the property and construct its fence. The fence' was constructed through the backyard of David O’Quinn’s property within 15 feet of his house and through a cultivated field of Stanley O’Quinn. The defendant’s actions were unreasonable in light of the nature of the O’Quinns’ possession.

For these reasons we find the defendant’s actions constituted deliberate and forcible trespass to the plaintiffs’ property rights, and the trial court was justified in making the damage award.

The defendant also contends that the award was excessive; the plaintiffs answered the appeal contending the award was inadequate.

As this court stated in Lloyd v. Hunt Exploration, Inc., 430 So.2d 298 (La.App. 3rd Cir.1983):

[3] In determining whether or not a trial court award may be questioned as inadequate or excessive, a reviewing Court must first look to the individual circumstances of the case at hand. Only in those circumstances where an articulated analysis of the facts discloses an abuse of discretion may an award on appellate review be considered inadequate or excessive. Reck v. Stevens, 373 So.2d 498 (La.1979).
[4, 5] When it is clear that the plaintiff has sustained some damage through the fault of the defendant, his demands will not be rejected simply because he cannot establish with accuracy the pecuniary amounts that he has suffered. Roshong v. Travelers Insurance Company, 281 So.2d 785 (La.App. 3rd Cir. 1973). However, damages for mental anguish and distress must be shown by competent evidence in order to sustain an award for such. McKowen v. McCraine, 244 So.2d 45 (La.App. 1st Cir.1971). Lambert v. Donald G. Lambert Construction Company, 371 So.2d 1167 (La. App. 4th Cir.1978); Rhodes v. Collier, 215 La. 754, 41 So.2d 669 (La. 1949); Loeblich v. Garnier, 113 So.2d 95 (La. App. 1st Cir.1959).

In the present case each plaintiff testified that the defendant’s actions caused them worry and anguish. Each plaintiff was clearly upset by the defendant’s actions. David O’Quinn submitted medical evidence that he has heart disease, that he was examined shortly after the defendant’s actions, and that the doctor noted him to be anxious and depressed and under considerable stress. Under these facts we cannot say that the trial court abused its discretion. The award was neither excessive nor inadequate.

The judgment of the trial court is affirmed. Appellant will pay the cost of appeal.

AFFIRMED.


source: Caselaw Access Project

author: YELVERTON, Judge.

license: Public Domain

text:
    David B. O’QUINN, Jr., et al., Plaintiffs-Appellees, v. HAAS INVESTMENT COMPANY, INC., Defendant-Appellant.
    No. 83-958.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.
    Laborde & Lafargue, David Lafargue, Marksville, for defendant-appellant.
    William J. Bennett, Marksville, for plaintiff-appellee.
    Before GUIDRY, STOKER and YEL-VERTON, JJ.
   YELVERTON, Judge.

For the reasons this date given in the case O’Quinn v. Haas Investment Company, Inc., 458 So.2d 612 (La.App. 3rd Cir. 1984), the judgment of the trial court is affirmed. Appellant will pay the cost of appeal.

AFFIRMED.


text:
    Stanley E. O’QUINN, et ux., Plaintiffs-Appellees, v. HAAS INVESTMENT COMPANY, INC., Defendant-Appellant.
    No. 83-959.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.
    Laborde & Lafargue, David Lafargue, Marksville, for defendant-appellant.
    William J. Bennett, Marksville, for plaintiffs-appellees.
    Before GUIDRY, STOKER and YEL-VERTON, JJ.
   YELVERTON, Judge.

For the reasons this date given in the case O’Quinn v. Haas Investment Company, Inc., 458 So.2d 612 (La.App. 3rd Cir. 1984), the judgment of the trial court is affirmed. Appellant will pay the cost of appeal.

AFFIRMED.


author: LABORDE, Judge.

text:
    Isaac David HANKS, Plaintiff-Appellee, v. Bonnie Rita HANKS, Defendant-Appellant.
    No. 83-963.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.

      Hawley & Schexnayder, Nelson J. Schex-nayder, Jr., Lafayette, for defendant-appellant.
    Castle & English, John E. Castle, Jr., Lafayette, for plaintiff-appellee.
    Before DOMENGEAUX, CUTRER and LABORDE, JJ.
   LABORDE, Judge.

In this child custody case defendant, Bonnie Rita Hanks (Faulkinberry after remarriage), appeals from a judgment in favor of plaintiff, her ex-husband, Isaac David Hanks, denying her request for the joint custody of their four (4) minor children. We affirm.

On November 7, 1979, Isaac Hanks filed suit against his wife seeking an immediate divorce and custody of the four (4) minor children born of the marriage. The temporary care, custody, and control of the children, Isaac Louis, Robert Allen, Cherami Lyn, and Mitchell Joseph, was awarded to Mr. Hanks. On August 4, 1981, judgment was entered granting Mr. Hanks a divorce and permanent custody of the children. On May 25) 1983, Bonnie Hanks Faulkinberry filed a rule to change custody seeking an award of joint custody. The trial court ordered that Mr. Hanks retain custody of the children and that the previously established visitation arrangement be maintained. From that judgment, defendant, Bonnie Hanks Faulkinberry, perfects this appeal.

The standard of review in a custody matter gives great weight to the trial court’s decision which should be overturned only when there is clear abuse of discretion. Stephenson v. Stephenson, 404 So.2d 963 (La.1981). A review of the record reveals no abuse of discretion.

The sole criterion applicable in change of custody eases is the best interest of the child. LSA-C.C. Article 157; Bordelon v. Bordelon, 390 So.2d 1325 (La. 1980); Bentley v. Bentley, 440 So.2d 1365 (La. App. 3rd Cir.1983), writ denied, 444 So.2d 125 (La.1984); Turner v. Turner, 455 So.2d 1374 (La.1984). In its reasons for judgment, the trial court stated as follows:

“A joint custody arrangement mandates not only the sharing of physical custody of the children, but also co-tutorship which requires an exchange of information and joint decision making regarding the welfare of the children. The Court believes that given the history of animosity between these parties, it would be impossible for them to work within a plan calling for joint custody...
The evidence presented at the hearing in this matter was sufficient to rebut the presumption that best • interest of the children would be served by changing the custody of the children to an arrangement of joint custody...”

The record does reveal that the relationship between the parties would make implementation of the joint custody plan difficult. Mr. Hanks testified that he did not believe that he and his ex-wife, the present Mrs. Faulkinberry, could work together as co-tutors of the children because of their difficulty in communicating and because of the problems created by her filing a rule questioning his paternity. Bonnie Hanks Faulkinberry testified that her new husband, Mr. Faulkinberry, would be involved in all decisions regarding the children if joint custody was implemented. Mr. Hanks, however, testified that he disliked Mr. Faulkinberry; that communications between the two would be difficult, if not impossible, and that the two men had never contacted each other.

In correctly finding that a joint custody plan could not be easily carried out, the trial court stated, “The evidence presented in this matter shows that Isaac David Hanks has always provided the children with a very good, stable, and loving environment.” The children have always lived with their father in Rayne, Louisiana; therefore, they have attended school and have been involved in extra-curricular activities there. Mr. Hanks has employed someone to care for the children while he is at work and has provided the children with a comfortable home. Since the children are presently in a stable environment and joint custody would not be feasible, the trial court did not abuse its discretion in denying joint custody and refusing to change the existing custody arrangement.

For the above and foregoing reasons, the trial court’s judgment is affirmed. Costs are assessed against defendant-appellant, Bonnie Rita Hanks Faulkinberry.

AFFIRMED.


author: CUTRER, Judge.

text:
    Roy Douglas ROBERTSON, Plaintiff-Appellee, v. STRATAGRAPH, INC. and Hartford Insurance Company, Defendants-Appellants.
    No. 83-967.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.

      Jeansonne, Briney & Goudelocke, Charles J. Foret, Lafayette, for defendants-appellants.
    Thomas J. DeJean, Opelousas, for plaintiff-appellee.
    Before DOMENGEAUX, CUTRER and LABORDE, JJ.
   CUTRER, Judge.

This is an appeal in a workmen’s compensation suit from a trial court judgment awarding the plaintiff benefits on the basis of his partial disability. The plaintiff, Roy Douglas Robertson, brought suit to recover workmen’s compensation resulting from an injury to his buttocks incurred when a coworker, as a prank, placed epoxy resin glue on his workbench while he was employed as an electronics technician for Strata-graph, Inc.

This suit was filed against Stratagraph, Inc. and against its workmen’s compensation carrier, Hartford Accident and Indemnity Company (Hartford).

The plaintiff sued for total permanent disability payments, penalties and attorney’s fees. The trial court awarded the plaintiff forty-eight weeks of partial disability benefits subject to certain credits. Penalties and attorney’s fees were denied. We affirm.

The defendants appeal contending that the trial court erred in finding that the plaintiff was partially disabled or, 'in the alternative, finding that the plaintiff was partially disabled for the entire forty-eight week period. The plaintiff answers seeking attorney’s fees.

FACTS

The plaintiff was employed by the defendant as an electronics technician. This job required him to sit for a majority of the time repairing electronic devices.

On June 8,1982, the plaintiff was injured when he sat on some epoxy resin glue which had been placed on his workbench by a fellow employee as a practical joke. The epoxy glue burned through the seat of his pants, causing burns to his buttocks. On that night, he went to Lourdes Hospital emergency room for treatment of his buttocks. They advised him to see a doctor.

In his reasons for judgment the trial judge set forth the facts as follow:

“At the trial, plaintiff testified that he saw Dr. Terry Cromwell the week after the injury. Dr. Cromwell prescribed medication and had plaintiff stay home, remain quiet, and remain off his buttocks. Plaintiff stated that he remained home for three weeks and was paid his full salary by Stratagraph for this time. He returned to work after that time and worked for one to two weeks, even though he had pain while sitting or standing. He testified that he then took his vacation at the end of July, 1982. When he returned from his vacation, he worked for three days and then was laid off on August 13, 1982.
“Plaintiff testified that during this entire time, his buttocks had not healed and were irritated. It was hard to sit due to the irritation, but he returned to work even though the doctor had not discharged him because he had a family to support and obligations to meet. Plaintiff stated that he did his work as best as he could, but it was difficult due to the irritation which impaired his concentration. During this tirñe period he only saw Dr. Cromwell twice, on June 17 and 29, and did not return because he did not like showing the affected areas to doctors.
“Plaintiff stated that he searched for work and accepted a $50.00 retainer from a concern known as Logmasters in September, 1982. Plaintiff then went to work for Logmasters in December, 1982, for a period of one month. Plaintiff further testified that his buttocks area had not healed at that time; in fact, he was in the same amount of pain in December, 1982, as he had been in June, 1982. Plaintiff also stated that Logmasters did not pay him for the one month’s work and he had not been paid to date.
“Plaintiff then testified that he worked for an insurance agency making appointments over the telephone. This involved constant sitting, and after three days, the pain became unbearable, so he returned to Dr. Cromwell on March 24, 1983. He stated that he had not worked since that time.
“Plaintiff stated that at that time the pain had localized near the anal area. He could not sit for more than ten minutes without pain and could not concentrate to work or read. The area was irritating, too painful to itch, and the only comfortable position was laying down without clothing.
“Plaintiff further testified that the area had never fully healed since June 8, 1982. The condition had subsided, but had returned by March 24,1983. At that time, Dr. Cromwell referred plaintiff to a Dr. Richard, who failed to cure the condition. Dr. Cromwell then referred plaintiff to Dr. Daniel Dupree, a dermatologist, who changed the treatment and medication. Plaintiff stated that three weeks later he no longer experienced discomfort and he thought he could return to work without pain. Further, at the time of the trial, he had no pain or discomfort whatsoever. In addition, all of plaintiffs medical bills had- been paid at the time of the trial.
“On the trial of the merits, the depositions of Doctors Dupree and Cromwell, taken for trial purposes, were introduced into the record. Doctor Cromwell stated that, after the initial injury, he saw plaintiff on June 17 and June 29, 1982. On the former date, plaintiff was in pain, but by the latter date the condition had improved remarkably, and plaintiff could return to work the next week. Because plaintiff did not return to see Doctor Cromwell by September 29, the doctor discharged plaintiff on that date, retroactive to June 29, 1982.
“When Doctor Cromwell next saw plaintiff on March 24, 1983, his condition had localized further down toward the anal area, and appeared to have existed at least a few weeks before that date. The area was a moist surface, as if it had multiple blisters that had ruptured or opened. The area was weeping, or drain-*' ing, all the way down to the anus, and plaintiff complained of a burning sensation. At that time plaintiff could not perform a job that would require him to sit down. Plaintiff was referred to Doctor Richard for further treatment.
“Doctor Cromwell next saw plaintiff on April 21, 1983, after plaintiff had seen Doctor Richard. The area had not improved much, and still had a peri-anal rash that was irritated by sitting. Doctor Cromwell stated that plaintiff at that time could probably carry out jobs that involved intermittant sitting, that is, sitting for an hour and walking for an hour. Doctor Cromwell referred plaintiff to Doctor Daniel Dupree, a dermatologist.
“Doctor Cromwell last saw plaintiff on July 19, 1983, after Doctor Dupree had treated the plaintiff. At that time plaintiff still complained of irritation in the buttocks area after long periods of sitting, but the skin looked good and there were no objective findings to substantiate plaintiff's complaint of irritation.
“Dr. Dupree’s deposition indicates that he saw plaintiff on April 28 and May 5, 1983. Dr. Dupree stated that plaintiff had a condition known as lichen simplex ehronicus, whereby the skin thickens and skin markings are accentuated due to repeated scratching and rubbing. The doctor explained that the condition involved an itch/scratch cycle in that the area itches so the patient scratches it, which further thickens and lichenifies the skin, causing increased itching, which encourages scratching. Dr. Dupree stated that the condition was causally related to the epoxy prank as a secondary manifestation or secondary outcome. Sitting down or sweating could cause the area to be irritated, but the condition would not disable plaintiff from engaging in everyday activities.
“On May 5, 1983, Dr. Dupree administered and prescribed cortisone cream. Thereafter, he did not see plaintiff again.”

DISABILITY

The defendants contend that the trial court erred in finding that the plaintiff was partially disabled. They argue that the evidence shows that the plaintiff was merely suffering some residual pain and discomfort and that the pain was not substantial enough to be considered disabling. In the alternative, the defendants argue that, even if the plaintiff did carry his burden of proving that he was disabled for some period of time, the trial court committed manifest error in finding that he was disabled from June 9, 1982 through July 19, 1982.

This court has recently enunciated the applicable law as to these- issues in the following manner:

“ ‘A worker is partially disabled under LSA-R.S. 23:1221(3) when he cannot perform the duties required by his former employment but can still do other work. Scott v. Sears, Roebuck & Company, 406 So.2d 701 (La.App. 2nd Cir.1981). Partial disability also includes the situation where a workman would experience substantial pain when working in his former occupation, but where he could perform other work without experiencing such pain. McBroom v. Argonaut Insurance Company, 370 So.2d 212 (La. App. 3rd Cir.1979), writ denied, 371 So.2d 1342 (La.1979)_ The determination of disability and the existence of substantial pain are questions of fact which may not be disturbed on appeal unless clearly wrong. Newell v. U.S. Fidelity and Guaranty Co., 368 So.2d 1158 (La.App. 3rd Cir.1979).’ ”

King on behalf of King v. Ins. Co. of North America, 442 So.2d 1286 (La.App. 3rd Cir.1983).

The trial court, in its reasons for judgment, resolved the contentions in favor of plaintiff, stating in part as follows:

“At the time of his injury, 90% of plaintiff’s time at work involved sitting at his work bench. Because of the injury to his buttocks, plaintiff could not return to work without substantial pain or discomfort. Even after he was laid off, due to the economic slump, he could not return to a job that involved a great deal of sitting, as evidenced by his three day stay with the insurance company. However, according to plaintiff’s testimony, and the depositions of Doctors Cromwell and Dupree, plaintiff could perform gainful work in other positions of employment that involved intermittent or less sitting, without experiencing substantial pain or discomfort. Accordingly, under Louisiana law and jurisprudence, plaintiff was partially disabled as a result of the June 8, 1982, injury to his buttocks. Louisiana Revised Statute 23:1221; Conlay v. Houston General Insurance Company, 370 So.2d 196 (La.App. 3d Cir. 1979); Dusang v. Henry C. Beck Builders, Inc., 389 So.2d 367 (La.1980).
“Further, Mr. Robertson’s work-related disability is compensable even though he returned to work after the injury, in July, August, and December of 1982, and in March of 1983, because his work at those times was accompanied by substantial pain and discomfort caused by sitting down, as required by the nature of his work. Irby v. Edwards Rental and Fishing Tools, Inc., 380 So.2d 711 (La. App. 4th Cir.1980); Lucas v. Ins. Co. of North America, 342 So.2d 591 (La. 1977).”

The court recognizes the appropriate standard of review of the trial court’s finding of fact to be as follows:

“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 inferences of fact by the trial court, even though the reviewing court is of the opinion that other evaluations and inferences are as reasonable.”

Crump v. Hartford Acc. & Indem. Co., 367 So.2d 300, 301 (La.1979). Great weight is given to the findings of the trial court with regard to the credibility of the plaintiff in a workmen’s compensation proceeding. Joseph v. Martin Mills, Inc., 394 So.2d 722 (La.App. 3rd Cir.1981). We find no such manifest error in the trial court’s findings that the plaintiff was partially disabled for forty-eight weeks.

Plaintiff filed an answer to the appeal seeking attorney’s fees. The trial court found no evidence to establish defendant’s failure to pay was arbitrary, capricious or without probable cause. The determination of whether the employer’s conduct is arbitrary, capricious or without probable cause is a question of fact for the trial court, whose finding will not be disturbed on appeal unless it is manifestly erroneous. We agree with the trial court’s denial of penalties and attorney’s fees.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against defendants-appellants.

AFFIRMED.


author: STOKER, Judge.

text:
    Margie BATISTE, Plaintiff-Appellee, v. JOAN OF ARC COMPANY, INC., et al., Defendants-Appellants.
    No. 83-975.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.

      McLure & McLure, John C. Pickels, Alexandria, for defendants-appellants.
    Steve Gunnell, and Darrel D.O. Ryland, Marksville, for plaintiff-appellee.
    Before GUIDRY, STOKER and YEL-VERTON, JJ.
   STOKER, Judge.

Defendants, Joan of Arc Company and its worker’s compensation insurer, American Motorists Insurance Company, appeal from a judgment of the trial court declaring the plaintiff, Margie Batiste, to be totally and permanently disabled and awarding her worker’s compensation benefits in the amount of $92 per week for the period of her disability, medical expenses, and medical travel expenses. Plaintiff answers the appeal asking that the trial court’s denial of penalties and attorney’s fees be reversed. We affirm.

At trial the parties stipulated to the following facts:

“1.
“That Margie Batiste was an employee of Joan of Arc Company on October 28, 1982.
“2.
That Joan of Arc Company had a policy of workmen’s compensation insurance in effect covering Joan of Arc Company for all workmen’s claims which occurred on October 28, 1982.
“3.
That Margie Batiste did, in fact, sustain an injury to her right arm on the job on October 28, 1982.
“4.
That as a result of the injury referred to above, Margie Batiste received medical treatment in connection therewith.
“5.
That Margie Batiste’s average weekly wage was $138.00 and she was paid workmen’s compensation benefits from the date of the incident until her release to return to work by Dr. Kalifey on November 8, 1982.
“6.
That all medical bills of Dr. Kalifey, Dr. McCann, Dr. Naalbandian and Dr. Banks have been paid, but the medical bills of Dr. Abramson, Dr. Garcia-Oller and Dr. Pisarello have not been paid.”

Mrs. Batiste was injured while she was working as a potato trimmer for Joan of Arc. A co-worker, Mary Augustine, accidentally stabbed her in the elbow with a knife used for trimming potatoes. The supervisor, Brunette Bordelon, placed a bandage on the cut, and Mrs. Batiste attempted to return to work. Initially the cut appeared to be of no great consequence, but according to Mrs. Batiste her attempts to use her right hand after sustaining the injury were unsuccessful. She again complained to Mrs. Bordelon who sent her to see the personnel manager, Leo Rogers. Mr. Rogers replaced the bandage, and Mrs. Batiste again attempted to return to work.

After further complaints by Mrs. Batiste, Mr. Rogers sent her to see the company doctor, Dr. Edmond Kalifey. Dr. Kalifey gave Mrs. Batiste a tetanus shot, placed three sutures in the wound, and gave her medication for pain. Mrs. Batiste testified that she attempted to return to work the next two days but was unable to use her right hand. On November 8, 1982, Dr. Kalifey removed the sutures and released Mrs. Batiste for work. He did note that she complained of pain in her arm, hand and shoulder, but he did not believe that the nature of the wound indicated that there should be any nerve damage.

Since the injury, Mrs. Batiste has continually complained of increasing pain in her arm, hand, shoulder and neck. She has seen a number of doctors, some of whom could find no abnormalities. Her primary evidence of disability presented at trial consists of the depositions of Dr. Jose Garcia Oiler and Dr. Carlos Pisarello, both neurosurgeons practicing in New Orleans, Louisiana. According to these doctors, Mrs. Batiste has suffered an ulnar nerve injury, and is totally disabled. Certain procedures have been recommended to correct her condition.

Defendants argue on appeal that the trial court committed manifest error in accepting the testimony of the plaintiff and that of the two neurosurgeons. In our review of the trial court findings in this matter we are guided by the standards of review set out by the Louisiana Supreme Court in Crump v. Hartford Accident & Indemnity Company, 367 So.2d 300 (La. 1979). In Crump, the court set out the following standards for review:

“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.”

Mrs. Batiste is a 44-year-old divorced mother of six children, five of whom are living at home. She completed only the sixth grade, and her only other employment other than at Joan of Arc has been as a housekeeper. There appears to be no dispute that if Mrs. Batiste has suffered the nerve injury described by Drs. Garcia Oiler and Pisarello, she is disabled.

Defendants argue on appeal that Mrs. Batiste has fabricated her symptoms and complaints of pain to support her claim for disability. Defendants point out that a brother of Mrs. Batiste has suffered a similar ulnar nerve injury, and the same treatment which has been recommended for Mrs. Batiste was recommended for her brother. Defendants also point out conflicts in testimony between that of Mrs. Batiste and that of Mrs. Augustine and Mrs. Bordelon. The conflicts concern the exact circumstances of the accident, the amount of bleeding resulting from the wound, and Mrs. Batiste’s ability to work immediately after the accident. Defendants also argue that Mrs. Batiste was inconsistent in her own testimony as to her ability to work immediately after the accident. We disagree.

Mrs. Batiste’s testimony in her deposition and at trial appears to us to be consistent even though it is not well articulated. Mrs. Batiste makes it clear that she attempted several times to continue to work either by continuing to cut potatoes with her right hand or holding the potato with her right hand and trying to use her left hand to cut. She makes it clear that she was unable to continue cutting potatoes at the assembly line pace. Mrs. Batiste’s testimony as to her inability to use her right arm after the injury is corroborated by two of her children, ages 16 and 17, and her sister. It is apparent that the trial court’s findings were based in large part on its credibility evaluation of the lay witnesses. These evaluations do not appear to us to be unreasonable, and we do not feel that we may substitute our judgment of credibility for that of the trial court.

Defendants also argue that the trial court erred in its evaluation of the extensive medical evidence. We will briefly review that medical evidence.

As previously stated, Mrs. Batiste was initially examined by Dr. Edmond Kalifey, a general practitioner in Marksville, Louisiana. Dr. Kalifey was of the opinion that the wound was not serious and, despite Mrs. Batiste’s complaints, he did not believe that she had suffered any nerve damage. Dr. Kalifey testified that he did not recall if she complained of pain while moving her hand.

Dr. Bryan McCann, Mrs. Batiste’s family doctor in Marksville, examined her on November 11 and December 15, 1982. He found no abnormalities and indicated that Mrs. Batiste was probably suffering from bursitis. Dr. McCann saw Mrs. Batiste again on January 19, 1983, at which time she was complaining of pain and tenderness. At that time Dr. McCann referred her to Dr. T.E. Banks, an orthopedic surgeon in Alexandria, Louisiana, and Dr. McCann stated that he considered her fully disabled at this time. Dr. Banks saw Mrs. Batiste on January 31 and June 29, 1983. It was his opinion that Mrs. Batiste was not giving him a true response, and he testified that she was very uncooperative during the examination in that she did not want to move her hand and arm. On November 19, 1982, Mrs. Batiste was examined by Dr. Arsham Naalbandian, a neurologist in Alexandria. Dr. Naalbandian found no objective abnormalities. He also testified that the results of electromyo-graphic and nerve conduction studies administered on December 28, 1982 were normal. Dr. Naalbandian did indicate that unless the nerve is totally damaged or cut, muscular weakness develops over an undetermined amount of time.

Mrs. Batiste was also seen by Dr. S.R. Abramson, a general practitioner in Marks-ville, on April 12, 1983, and he was unable to match her subjective symptoms with his objective findings. He referred her to Dr. Garcia Oiler in New Orleans.

Dr. Garcia Oiler testified that Mrs. Batiste was at first reluctant to move her arm for the examination due to pain; however, after encouragement and assurance that the movement was necessary for a complete examination she was cooperative. Objective findings by Dr. Garcia Oiler include partial sensory loss, increased sweating, and weakness of the fifth finger of Mrs. Batiste’s right arm. It is this doctor’s opinion that Mrs. Batiste has suffered an incomplete laceration of the ulnar nerve in her right elbow which is causing her prolonged pain and present disability. The pain caused by nerve injury is termed caus-algia. This pain was described by Dr. Garcia Oiler as “a burning pain that is disabling because any movement of the extremity, of the entire arm, brings on this pain.” This description fits the pain consistently complained of by Mrs. Batiste.

Dr. Garcia Oiler recommends that Mrs. Batiste be treated by a sympathetic nerve block, a procedure in which anesthesia is injected around the nerve. This procedure would give temporary relief of pain. This sympathetic nerve block may be followed by a surgical procedure called a sympathec-tomy. This procedure involves surgical excision of a portion of the sympathetic nerves. This procedure should provide permanent relief from pain. Dr. Garcia Oi-ler’s findings and recommendations were completely concurred in by Dr. Pisarello.

As with the lay testimony, we do not find that we may substitute our evaluation of the medical testimony.for that of the trier of fact. The trial court was not clearly wrong in its finding of disability.

We also find that the trial court correctly refused to award plaintiff penalties and attorney’s fees. We agree that the defendants were not arbitrary and capricious in refusing to pay worker’s compensation benefits. This case presented a close factual question, and defendants should not be penalized for seeking a judicial resolution of the issue. Thompson v. Natchitoches Parish Hospital Service District, 335 So.2d 81 (La.App. 3rd Cir.1976), writ denied, 338 So.2d 298 (La.1976).

For the above reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to defendants-appellants.

AFFIRMED.

      . In her initial petition, plaintiff incorrectly named Kemper Insurance Companies as the worker's compensation insurer. American Motorists Insurance Company answered the suit and has proceeded as a defendant.


author: GUIDRY, Judge.

text:
    Hardy DRODDY, Plaintiff-Appellant, v. CLIFF’S DRILLING, INC., Defendant-Appellee.
    No. 83-976.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.
    Writ Granted Jan. 14, 1985.
    Baggett, McCall & Ranier, Robert C. McCall, Lake Charles, for plaintiff-appellant.
    Brame, Bergstedt & Brame, David A. Fraser, Lake Charles, for defendant-appel-lee.
    Before GUIDRY, STOKER and YEL-VERTON, JJ.
   GUIDRY, Judge.

Plaintiff, Hardy Droddy, filed this worker’s compensation action against Cliff’s Drilling, Inc. seeking benefits for permanent partial disability. Judgment was rendered on July 11, 1983, in favor of defendant dismissing Droddy’s demands with prejudice. Plaintiff has appealed.

The sole issue on appeal is whether the trial judge erred in finding that plaintiff failed to prove his permanent partial disability since January 8,1981, the date when defendant ceased paying worker’s compensation benefits.

On February 27, 1979, Droddy was employed as a floorhand by Cliff’s Drilling, Inc. and was working on a land-based oil rig in the Baton Rouge area. On that date, a board on which Droddy was standing slipped, causing him to fall approximately 18 feet onto a plank floor. Following his fall, Droddy went to the employer’s bunkhouse where he rested for several hours and then returned to work. A few days after the accident, Droddy went to the emergency room at a hospital in Zachary, Louisiana, complaining of pain in his left shoulder and left arm. The x-rays taken of his arm showed no evidence of any fractures. Droddy then returned to work and remained in defendant’s employ until April 18, 1979. The evidence is in conflict regarding whether he left work on the latter date because of his injury or because of his pre-accident plans to move to Massachusetts to do home missionary work for the United Pentecostal Church.

On April 19, 1979, before leaving for Massachusetts, Droddy visited Dr. Etienne R. Brown, a general practitioner in DeRid-der, complaining of aches and soreness in his arms, chest and shoulder. Dr. Brown’s examination revealed some tenderness in these areas. Droddy was hospitalized for a brief period of time wherein a number of tests were performed on Droddy, including x-rays of Droddy’s cervical spine and forearms. The test results were all within normal limits.

Dr. Brown saw Droddy again on May 29, 1979. Dr. Brown concluded that Droddy was markedly improved. There was no evidence of any muscle spasms nor abnormal motion. Dr. Brown concluded that Droddy had recovered from the injury and was able to return to work as of that date.

After plaintiff moved to Massachusetts, he again sought medical help for the pain he was experiencing. On June 14, 1979, he was examined by Dr. Geoffrey W. McCarthy, a general practitioner in Westfield, Massachusetts. Dr. McCarthy found a slightly decreased range of motion in Drod-dy’s neck and a slight decrease in strength. Dr. McCarthy concluded that Droddy was suffering from chronic pain syndrome as a result of the injury. This suit was filed on June 28, 1979.

Dr. McCarthy examined Droddy on six subsequent occasions, the last being on September 16,1980. On this final visit, Dr. McCarthy noted that there was still some limitation of motion in the left side of the neck and minimal decrease in muscle strength of the left arm. He could not say for certain whether this was in fact a result of the injury or a sudden onset of arthritis in the neck. Dr. McCarthy opined that it was unlikely that Droddy would improve enough to engage in heavy work in the future.

On July 26, 1979, Droddy was examined by Dr. Stephen E. Paul, a neurologist recommended by Dr. McCarthy. Dr. Paul performed a cervical myelogram on Droddy which showed only mild abnormality. Dr. Paul found some tenderness in Droddy’s neck and irritation to some of the cervical nerves. He recommended that Droddy undergo treatment by a physical therapist. Droddy was re-examined by Dr. Paul on September 17, 1979. On this visit, Droddy expressed some relief from pain as a result of the physical therapy. Following this visit, Dr. Paul discharged Droddy from his care.

Droddy returned to Dr. Paul on November 27, 1979 complaining of a recurrence of his pain. At this time, Dr. Paul considered surgery, however, this course of action was deemed unnecessary when a subsequent examination in February of 1980 showed marked improvement in Droddy’s condition. Dr. Paul’s final examination of Droddy was in October of 1980. Dr. Paul stated in his deposition that:

“... I had some mild suspicions in February of 1980, that possibly his complaints were either exaggerated or in some way distorted from the actual physical findings. But I must say, that was strictly a subjective opinion on my part; and as far as I was concerned there was nothing really to substantiate that viewpoint. I was somewhat puzzled, because I had expected to find that, in fact, his symptoms would be worsened; and I did not find that in February. I found that his symptoms were better — or his findings were better but that his symptoms were either the same or worse. And I thought that was a significant disparity.”

When asked whether he felt Droddy was a malingerer, Dr. Paul responded:

“That is a diagnosis I considered; and I can’t answer that question directly; because I have not formed an opinion with regard to that. I certainly did consider it along the way and would still consider it; but I’m not absolutely convinced that he is.”

Dr. Lang of Lahey Clinic examined Droddy in May of 1980, finding no abnormalities on his neurological examination. He advised Droddy to seek relief from a pain clinic.

At the defendant’s request, Droddy was examined by Dr. David Goldberg, an orthopedic specialist, in December of 1980. Dr. Goldberg noted mild spasms of the para-spinal muscles in the lumbar region but stated that Droddy “shows no evidence of being in acute distress.” He concluded the examination with the opinion that there were no residuals from the 1979 injury. Dr. Goldberg stated that, “I can find no evidence of objective findings to substantiate this patient’s subjective complaints.”

Upon receipt of Dr. Goldberg’s report in January of 1981, defendant terminated the worker’s compensation benefits which had been paid to Droddy since April of 1979.

Dr. Norman P. Morin, an orthopedic surgeon in Lake Charles, examined Droddy on three separate occasions. On January 7, 1980, Dr. Morin found some tenderness in the neck area and some mild muscle spasm. Dr. Morin found no muscle spasm present on his second examination of Droddy on February 2, 1981. He ruled out any possibility of disc injury on this visit. The November 22, 1982 examination of Droddy also showed a lack of muscle spasms. Dr. Morin expressed the opinion that Droddy was exaggerating the limited range of motion in his neck and stated that “some of his complaints were just out of line to what we found clinically, and they were rather weird.” He explained what he meant by “weird” as follows:

“I don’t know him well enough to say it is due to psychiatric overlay or due to the fact that he is faking his complaints. I would like to point out to the Court that some of the findings just don’t add up; they seem to contradict one another, so-to-speak. This is what I mean by weird.”

In March of 1981, Droddy sought the advice of another orthopedic surgeon. He was examined by Dr. Richard M. Kane, who found his condition to be essentially normal except for a markedly limited range of motion. Dr. Kane felt that this limitation of motion was “partially effort related.” He found no abnormalities in Drod-dy’s myelogram and encouraged Droddy to keep working. Dr. Kane opined that there was no physical disability preventing Drod-dy from working. Dr. Kane recommended a pain clinic due to the possibility of neurosis. Droddy’s second visit to Dr. Kane in May of 1981 produced basically the same findings.

In December of 1981, Droddy gave up his missionary efforts due to lack of participation and returned to Louisiana.

Dr. Harper Willis, Jr., a psychiatrist and neurologist, performed a psychiatric evaluation on Droddy on September 25, 1981. Dr. Willis found that Droddy had much anxiety and depression but did not find any phychosis present. He diagnosed Droddy’s condition as being a mixed type of psychoneurosis, whereby Droddy would be unable to function in any kind of work situation. He did find Droddy’s reflexes, muscle strength and range of motion to be normal.

Dr. Willis again examined Droddy on November 13, 1982. Dr. Willis diagnosed that Droddy had chronic pain in his left arm and neck area. Dr. Willis noted that Droddy’s depression was deepening and that he was “feeling desperate about supporting his family.” Dr. Willis admitted that there were other possible causes for Droddy’s depression other than his 1979 injury, such as: the economic crunch and Droddy’s lack of employment; the failure of his work as a missionary; and, the tendency Droddy has to deny his emotional problems and to focus such on his physical pain. Dr. Willis was of the opinion that Droddy would not be able to return to any kind of productive work until he obtained some relief from the pain he was experiencing.

In January of 1982, Droddy obtained employment as a college bus driver. He retained this job until May of 1982. He later started driving an 18-wheel pulpwood truck which work he was performing at the time of the trial.

At defendant’s request, Droddy was examined by Dr. Gilíes R. Morin, a psychiatrist in Lake Charles, on January 19, 1982. Dr. Morin’s psychiatric evaluation resulted in a finding that Droddy had a mild to moderate depressive neurosis. Dr. Morin felt that such neurosis was not caused by the trauma of the 1979 injury, but was due to Droddy’s religious upbringing. Dr. Morin noted that plaintiff lacked the fundamental symptoms of depression, which are weight loss and insomnia. He concluded that Droddy’s level of depression should not prevent him from returning to full time employment. Dr. Morin characterized Droddy as follows:

“He is a rigid person who may react to anxiety with phobias, compulsions, or obsessive runimation (sic). Chronic tension and excessive worry are common and resistance to treatment may be extreme despite obvious distress.”

Droddy’s final psychiatric examination took place on March 10, 1983, by Dr. William P. Cloyd, Jr. of Lafayette. Droddy was still complaining of pain in his left arm, neck and lower back. He also complained of dizzy spells and “feeling bad in general.” Dr. Cloyd’s psychiatric examination resulted in a diagnosis of depressive neurosis, and indicated a causal relationship between Droddy’s emotional state and the accident. His sole advice to Droddy was to seek relief at a pain clinic. Dr. Cloyd made the following observation of Droddy, “he denied any particular feelings of intense depression, which I felt that considering the degree of problems he has had and that he’s had since the period of 1979, to me appeared almost inappropriate.” Although Dr. Cloyd concluded that the accident was the main factor responsible for Droddy’s condition, he was unable to rule out other possible factors, such as the failure of Droddy’s missionary work in Massachusetts; Droddy’s inability to provide for his family; and, Droddy’s concern for his youngest son who was arrested on drug charges while Droddy and his wife were in Massachusetts. Dr. Cloyd’s opinion was that Droddy was unable to return to his former work in the oilfield.

Plaintiff contends that the lower court erred in failing to find that he is permanently partially disabled because of a depressive neurosis caused by his work related accident.

In Andrus v. Rimmer & Garrett, Inc., 316 So.2d 433 (La.App. 3rd Cir.1975), this court stated:

“Where a claimant seeks workmen’s compensation for neurotic disability, traumatic neurosis, et seq., such condition must be proven, as in any other disabling injury, by a preponderance of the evidence. Such condition must not only be shown to exist but also that it was causally connected with the work related accident. Thomas v. St. Patrick’s Hospital, 276 So.2d 749 (La.App. 3rd Cir.1973); Muse v. Sentry Insurance Company, 269 So.2d 609 (La.App. 3rd Cir.1972).
“Our jurisprudence has further indicated that in such cases the court must proceed with utmost caution and exercise extreme care in view of the nebulous characteristics of such a condition and the possibility of the symptoms being easily feigned. The evidence in cases of this nature should be scrutinized carefully and every precaution taken to protect employers and insurers against unjustified claims because of alleged mental affliction. Messex v. Georgia-Pacific Corporation, 293 So.2d 615 (La.App. 3rd Cir.1974); George v. Lafayette Well Service, Inc., 249 So.2d 212 (La.App. 3rd Cir.1971); Boutte v. Mud Separators, Inc., 236 So.2d 906 (La.App. 3rd Cir. 1970); Jackson v. International Paper Co., 163 So.2d 362 (La.App. 3rd Cir. 1964).”

In the present action, the trial judge found that Droddy failed to meet his burden of proof. It is evident that the trial judge accepted the opinion of Dr. Morin over those propounded by Drs. Willis and Cloyd. Our examination of the record has not revealed that he clearly erred in doing so. As we noted in Andrus v. Rimmer & Garrett, Inc., supra:

“The evaluation of the credibility of witnesses is peculiarly within the trial judge’s domain. In addition, the amount of weight placed by the trial judge on expert testimony, and the findings of fact in this regard, are entitled to great weight on appeal.”

In his thorough and well reasoned written reasons for judgment, the trial judge concluded that:

“Viewed in the light of all the evidence in the ease, the testimony of Dr. Willis and Dr. Cloyd is not very convincing. They concluded that Mr. Droddy has a neurosis which disables him from doing heavy work, but in reaching that conclusion they seem to assume or take for granted that he has some organic or physical disability which causes him to have chronic pain which, in turn, causes depression and anxiety. In their testimony they emphasize the importance of the physical pain and they state that psychotherapy will not help the depressive neurosis until the cause of the pain is eliminated. Yet, as detailed above, numerous other doctors who saw Mr. Droddy over an extended period of time said they found no organic basis for the pain. Several of those doctors found that Mr. Droddy was exaggerating his complaints and felt that they were on a psychological basis, either consciously or subconsciously.
Also in evaluating the testimony of Dr. Willis, the Court has to consider that on September 25, 1981, he was firmly of the opinion that Mr. Droddy was unable to function in any kind of work situation and would not be able to return to any kind of productive work until he had some relief from his pain. But in January, 1982, Mr. Droddy started driving a school bus between Merryville and Lake Charles. A few months later he became employed as a truck driver and was still working in the capacity at the time of the trial. When Dr. Willis saw Mr. Droddy again on November 13, 1982, and learned that plaintiff had driven a bus for several months and was then driving a truck, he expressed doubt that Mr. Droddy would be able to continue driving a truck because of the pain it was causing him. But not only did Mr. Droddy continue to drive a truck, after a while he started driving a much larger truck — an 18-wheeler hauling pulpwood eight to twelve hours a day.”

Plaintiff argues in brief that, “the lower court’s de facto finding that plaintiff was a malingerer is not only not supported by the record, but totally in contradiction to the testimony of all three psychiatrists who testified at plaintiffs trial.” Plaintiff over emphasizes the issue of whether or not Droddy was a malingerer. The determinative factor in this case is whether Droddy proved by a preponderance of the evidence that he was partially disabled as a result, of traumatic neurosis. The psychiatric testimony differed as to the cause of plaintiffs depression and its severity. The trial court chose to rely on Dr. Morin’s testimony as to these factors and concluded that Drod-dy’s depression was not of a disabling nature and would not prevent him from engaging in his former line of work. Dr. Morin noted that Droddy did not suffer from insomnia or a lack of appetite, the classic symptoms- of depression. These factors are indicative of the mildness of plaintiff’s depression. Although Drs. Willis and Cloyd opined that the depression was caused by the work related injury, they were unable to rule out the possibility that the depression could have alternatively been brought about due to plaintiffs failure in his missionary effort in Massachusetts or his family problems. The trial court’s ultimate conclusion, relying on the opinion of Dr. Morin, is unquestionably compatible with the other medical evidence and the factual evidence which reflects that Droddy has functioned satisfactorily in a work situation since January of 1982.

For the above reasons, the judgment of the trial court is affirmed. Appellant is cast for all costs of this appeal.

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    TRAVELERS INSURANCE COMPANY, Plaintiff-Appellant, v. William R. HARKINS, Defendant-Appellee.
    No. 83-977.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.
    Terry Thibodeaux, of Woodley, Barnett, Cox, Williams, Fenet & Palmer, Lake Charles, for plaintiff-appellant.
    McHale, Bufkin & Dees, Louis D. Buf-kin, Lake Charles, for defendant-appellee.
    Before DOMENGEAUX, CUTRER and LABORDE, JJ.
   DOMENGEAUX, Judge.

Travelers Insurance Company instituted this action seeking to recover from William R. Harkins some $21,000.00 which it claims to have erroneously paid the defendant under the terms of a group hospitalization policy. The case was tried and the district court awarded judgment in favor of the defendant denying the claims of Travelers. From that adverse judgment plaintiff has perfected this appeal.

The facts adduced at trial show that at the time defendant was injured he was an employee of Continental Oil Company (hereinafter Conoco). Pursuant to their duties Mr. Harkins and another Conoco employee made a trip to New Jersey, where while unloading drums of chemicals, Har-kins experienced pain. He immediately developed symptoms of a cervical disc injury for which he underwent surgery.

The record reveals that defendant filed suit for and recovered compensation benefits from Conoco’s worker’s compensation insurer.

During this period of time Mr. Harkins also made claims against the plaintiff, Travelers, for medical bills relating to the treatment of his neck, arm, and knee.

The group health policy under which Travelers paid Mr. Harkins’ claims provides an exclusion for work-related accidents. Travelers contends that because of this exclusion it should not have been liable for Mr. Harkins’ claims. More specifically, it contends that the medical expenses which it paid were made necessary by a work-related accident, covered by worker’s compensation, and thus not covered by the terms of its policy. As such it claims the amounts paid out under the policy were sums not due for which it is entitled to recover.

After trial of the matter the lower court found that: (1) the greater portion of the medical bills paid by plaintiff were incurred for the treatment of an arthritic condition in defendant’s knee and not connected to the cervical disc problem covered by worker’s compensation, and (2) Travelers failed to carry its burden of proving that the terms of the policy excluded coverage of these expenses.

On appeal the plaintiff’s contentions can be summarized into two main categories as follows: The trial court committed reversible error in (1) refusing to allow into evidence parts of the record or other evidence relating to defendant’s earlier worker's compensation suit identified as William Harkins v. Continental Oil Company, Docket Number 78-4868, and (2) finding that defendant had failed to carry its burden of proving that liability did not exist under the terms of the contract.

ADMISSIBILITY OF THE EVIDENCE

There can be no doubt that when a trial court rules evidence as inadmissible it must give the reason for its rulings and on appeal that decision is reviewable. La.C. C.P. Art. 1636. In the case at bar the trial judge refused to allow into evidence testimony dealing with the earlier worker’s compensation proceeding. He stated that the material was irrelevant because of the lack of identity between the issues in the two proceedings.

“... in order for testimony taken at an earlier judicial proceeding to be admissible as evidence in a subsequent proceeding, there must be a showing that (1) there exists an identity of parties between the two proceedings; (2) there exists an identity of issues between the two proceedings; and (3) the witness whose testimony is sought to be introduced is unavailable for production at the later trial. Bulk Transport, Inc. v. Louisiana Public Service Commission, 252 La. 9, 209 So.2d 4 (1968); Young v. Reed, 192 So. 780 (La.App. 2nd Cir.1939), citing Rouyer, et al v. Carroll, 47 La.Ann. 768, 17 So. 292 (1895). There must also have been opportunity for full cross-examination on the identical issues at the prior proceeding. Montgomery v. Breaux, 297 So.2d 185 (La.1974). See also Comment, The Admissibility of Former Testimony in Civil and Criminal Trials, 20 La.L.Rev. 146 (1959). Unless these requirements are met, the former testimony must be ruled inadmissible as hearsay. Bulk Transport, Inc. v. Louisiana Public Service Commission, supra.Stutts v. Humphries, 408 So.2d 940 (La. App. 2nd Cir.1981).

There is no identity of the parties between this case and the earlier worker's compensation case. It is true that:

Complete mutuality or identity of all the parties is not necessary to admit testimony in a former suit. It generally suffices if the issue be the same, and the party against whom it is offered had full power of cross-examination.”
Rouyer, et al. v. Carroll, 17 So. 292 (La.1895).

Here not only is there a lack of identity of parties, but the issues are not the same, and if allowed, the party against whom the evidence was offered would be deprived of the full power of cross-examination. This case involves whether Travelers should be able to recoup payments it made under a group health policy. The worker’s compensation case concerned whether an entirely different insurance company should be held liable under a policy of worker’s compensation insurance. A litigant should not be required to contemplate what his tactics will be as to cross-examination in one proceeding against one defendant in order to preserve that privilege for a defense against an entirely different adversary in a different proceeding on a different cause of action. We thus hold that the trial court properly excluded the evidence.

LIABILITY UNDER THE TERMS OF THE CONTRACT

The trial judge in his well-reasoned opinion stated:

“... Travelers had the burden of proving that the terms of the policy under which it paid excluded coverage for such expenses. In an effort to do so, it put into evidence a policy with an effective date of January 1, 1976, and with a one year policy period. The accident in New Jersey occurred on or about January 31, 1978, more than a year beyond the effective dates of the policy received into evidence.
Travelers apparently would have the court assume that the same policy provisions were in effect at the time of Har-kins’ accident, but the court is not free to do so, and, consequently the court cannot determine whether the payments made were, in fact, not due under the terms of the policy m effect at the time in question.”

In its brief Travelers claims that the policy in evidence remains in effect so long as the premiums are paid and the insurer does not notify the insured as to any intention to cancel the policy. However, the record does not contain one scintilla of evidence which in any way relates to either requirement of the continued existence of the policy. The only mention of these requirements is the statement that they exist in the appellate brief. Nowhere is there proof that the requirements have been met. We thus are convinced that the trial court correctly resolved this issue.

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

AFFIRMED.


text:
    Harold E. ELLIOTT, Plaintiff-Appellee, v. Barnie Bundy ELLIOTT, Defendant-Appellant.
    No. 83-981.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.

      Barnie Bundy Elliott, in pro. per.
    Provosty, Sadler & deLaunay, H. Brenner Sadler, Alexandria, for plaintiff-appel-lee.
    Before GUIDRY, STOKER and YEL-VERTON, JJ.
   GUIDRY, Judge.

On August 2, 1983, Harold E. Elliott was granted a divorce from Barnie Bundy Elliott on the basis of their living separate and apart for one year. From that judgment, defendant perfects this appeal. Plaintiff-appellee timely answered the appeal praying for damages for the filing of a frivolous appeal.

La.R.S. 9:301 provides as follows:

“When the spouses have been living separate and apart continuously for a period of one year or more, either spouse may sue for and obtain a judgment of absolute divorce.”

The Supreme Court in Adams v. Adams, 408 So.2d 1322 (La.1982), stated that the phrase “living separate and apart” in the above cited statute means that the initial physical separation must be voluntary on the part of at least one of the parties. Appellant asserts in her appeal that the initial separation between herself and her husband was not voluntary. She urges that Mr. Elliott began living separate and apart from her because of the pressures he felt as a result of his health and his father’s health, and not because he desired to end the marital association.

At the hearing on this matter, plaintiff, Harold Elliott, repeatedly stated that he wanted a divorce and that there were no other pressures influencing his decision. His parents testified that he left the marital domicile in May of 1982. They further testified that Elliott moved in with them and had not lived with his wife since that time. Mrs. Elliott stated that her husband left because of his father’s health, his own health, and work-related pressures. She stressed her belief that he did not actually want a divorce and that their marital problems could be resolved.

At the end of the hearing, the trial judge, in his oral reasons for judgment, stated:

“Under the law of this State, when two people have lived separate and apart ... for more than one year before the suit for divorce is filed, the law gives either one the right to ask or demand a divorce. I have no discretion in this matter once it is proven to me as the judge of this court that the parties have lived separate and apart for a year and one party asked for a divorce I must grant that divorce under our law. I am in full sympathy with what Mrs. Elliott testified to. I am impressed with her sincerity. Apparently, ... this is a very, very unfortunate situation. Both Mr. Elliott and Mrs. Elliott appear to be very, very decent people— very good people... It is my hope that after this is over that the parties will see it in their hearts to talk about their problems and see if they can work out the problems as Mrs. Elliott testified to. However, I find as a matter of fact that they have lived separate and apart for more than one year preceeding the filing of the divorce and I find as a matter of law that the plaintiff is entitled to the divorce.”

The trial court was certainly aware of the requirement under La.R.S. 9:301, as emphasized in the Adams case, that the separation must be shown to be free and voluntary on the part of at least one of the parties. This fact is apparent from the transcript of the hearing itself, wherein counsel for the appellant stated to the trial judge that, “... the jurisprudence requires that at least one of the parties have an intent to have the divorce and begin to live separate and apart.” In granting the divorce, although there was not a specific finding of voluntariness on plaintiffs part, the trial judge presumably determined that Mr. Elliott had voluntarily lived apart from Mrs. Elliott. None of the record evidence leads this court to conclude that Elliott’s departure was anything but voluntary on his part.

Conclusions of fact by the trial judge in domestic relations cases are entitled to great weight and will not be disturbed absent manifest error. Usie v. Bonvillain, 348 So.2d 728 (La.App. 1st Cir. 1977); Breaux v. Breaux, 323 So.2d 486 (La.App. 1st Cir.1975). A review of the record reveals no clear error in the trial court’s conclusion that plaintiff is entitled to judgment.

Plaintiff-appellee has answered this appeal praying for damages for the filing of a frivolous appeal.

La.C.C.P. Art. 2164 provides in pertinent part that:

“The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The court may award damages for frivolous appeal; and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.”

Damages for frivolous appeal will not lie unless it manifestly appears that the appeal was taken solely for delay, or that appealing counsel does not seriously believe in the position he advocates, even though the appeal lacks serious merit. Brasseaux v. Reaux, 394 So.2d 688 (La. App. 3rd Cir.1981); Commercial Securities Company, Inc. v. Corsaro, 417 So.2d 1346 (La.App. 3rd Cir.1982).

We feel that the defendant’s appeal in this case meets neither of the criteria set forth in Brasseaux. It is evident from the pleadings and from the record that defendant and her counsel were sincere in perfecting this appeal and honestly believed in the merits of this appeal. Although we find no merit to the appeal, we decline to award plaintiff’s requested damages for frivolous appeal.

For the above and foregoing reasons, the judgment of the trial court is affirmed. Plaintiff’s request for damages for frivolous appeal is denied. Costs of appeal are taxed to defendant-appellant.

AFFIRMED.


text:
    Elric P. DAIGREPONT, Plaintiff-Appellant, v. Katherine T. DAIGREPONT, Defendant-Appellee.
    No. 83-985.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.
    Darrel D. Ryland and Steve Gunnell, Marksville, for plaintiff-appellant.
    Clark C. Roy of Knoll and Knoll, Marks-ville, for defendant-appellee.
    Before GUIDRY, STOKER and YEL-VERTON, JJ.
   GUIDRY, Judge.

Elric P. Daigrepont filed for and obtained a judgment of absolute divorce against his wife on the ground of adultery. The judgment of divorce, which is dated August 26, 1983, awarded Mr. Daigrepont sole custody of their seven year old child, Heidi, subject to specified visitation rights granted in favor of Mrs. Daigrepont. The judgment orders Mr. Daigrepont to pay $125.00 per month to his wife to “defray expenses incurred by KATHERINE T. DAIGREPONT in the exercising of visitation rights with the minor child, HEIDI DAIGREPONT.” Elric Daigrepont appeals the judgment only insofar as it compels him to pay $125.00 per month to the defendant. There has been no appeal or answer to the appeal by Mrs. Daigrepont.

The sole issue on appeal is whether the trial judge abused his discretion in ordering plaintiff to pay the aforesaid sum monthly to Mrs. Daigrepont.

We have some difficulty in characterizing the monthly payments which appellant has been ordered to make. The final judgment specifies that the payments are to be made to “defray expenses incurred by KATHERINE T. DAIGREPONT in the exercising of visitation rights with the minor child, ... ”. The trial court’s oral reasons for judgment reflect that the payments are to be made as “child support for the time the child is visiting with the mother.” However, whether the payments be considered as permanent alimony or child support, we conclude that the trial court clearly erred in ordering any payment to Mrs. Daigrepont.

Clearly Mrs. Daigrepont is not entitled to permanent alimony. Only a spouse free from fault and without means for support is entitled to post divorce alimony. La.C.C. Art. 160. Likewise, we determine that the trial court erred if the ordered payments be considered as child support.

In Ducote v. Ducote, 339 So.2d 835 (La. 1976), our Supreme Court held:

“Louisiana Civil Code Article 227 provides that parents have the obligation to support, maintain, and educate their children. This support shall be, granted in proportion to the needs of the child and the circumstances of the parent who is to pay. LSA-C.C. Art. 231. If the parents are divorced and the children are living with their mother, the children are entitled to the same standard of living as if they resided with their father whenever the financial circumstances of the father permit. Wilmot v. Wilmot, 223 La. 221, 65 So.2d 321 (1953); Sarpy v. Sarpy, La.App., 323 So.2d 851 (1975), cert, denied, La., 328 So. 2d 166 (1976); Phillips v. Phillips, La.App., 319 So.2d 566 (1975).” (Emphasis added).

The phrase “parent who is to pay” has been consistently interpreted by the jurisprudence to mean the non-custodial parent. Child support is the property of the spouse who is granted custody. Blackburn v. Barrios, 427 So.2d 482 (La.App. 5th Cir.1983), writ denied, 433 So.2d 1051 (La.1983); In Re Jones, 337 So.2d 283 (La. App. 2d Cir.1976), writ denied, 340 So.2d 314 (La.1976). In Updegraff v. Updegraff, 421 So.2d 1165 (La.App. 2d Cir.1982), the court stated, “child support is to be fixed in proportion to the needs of the children and-the non-custodial parent’s ability to pay.” (Emphasis ours)

There are countless examples of our judiciary’s interpretation of the phrase “parent who is to pay.” In Pierce v. Pierce, 397 So.2d 62 (La.App. 2d Cir.1981), the court opined that “a parent may suspend the right to collect the support by turning a child over to the parent who owes the duty of support.” This clearly evidences the fact that it is the non-custodial parent who owes the duty of support to the custodial parent. While it is well settled that the law imposes upon parents the mutual obligation of their children’s support, maintenance and education, the customary duties performed and services rendered by the custodial parent on a daily basis contribute substantially to the mutual obligation of support. Graval v. Graval, 355 So.2d 1057 (La.App. 4th Cir.1978); Ducote, supra. The court in Ramos v. Ramos, 425 So.2d 989 (La.App. 5th Cir.1983), reaffirmed the position taken herein that it is only the custodial parent who is legally entitled to child support payments by stating, “once the child has reached the age of majority, however, the custodial parent no longer has the capacity to raise for the child the question of whether the child is in need of support from the other parent.” (Emphasis ours).

We conclude that following separation or divorce where sole custody has been granted to one parent, such parent assumes the obligation to see to the support, maintenance and education of the children aided by monetary support from the noncustodial parent fixed in proportion to the needs of the children and the circumstances of the non-custodial parent. Since the custodial parent has the obligation to see to the support, maintenance and education of the children the non-custodial parent is not entitled to any monetary assistance from the custodial parent even during periods of visitation. Such expenses as are incurred by the non-custodial parent during periods of visitation for food, lodging, etc., are obligations which the non-custodial parent assumes under his or her duty of mutual support. La.C.C. Art. 227.

While it is well settled in our jurisprudence that great weight is given to the findings and judgment of the trial judge in alimony and support matters and will not be disturbed absent a finding of an abuse of the much discretion rule, nevertheless, it is the responsibility of the appellate court, in reviewing law and fact, to revise a judgment when circumstances warrant such a finding. Grishman v. Grishman, 322 So.2d 840 (La.App. 4th Cir. 1975); Ballard v. National Indemnity Company of Omaha, Neb., 246 La. 963, 169 So.2d 64 (La.1964); Micheli v. Toye Brothers Yellow Cab Company, 174 So.2d 168 (La.App. 4th Cir.1965). Considering our conclusions above, we find that the trial court clearly erred in ordering appellant to pay the sum of $125.00 monthly to Mrs. Daigrepont.

For the foregoing reasons, the judgment of the district court is reversed insofar as it orders appellant to pay to Mrs. Daigrepont the amount of $125.00 per month. In all other respects the judgment appealed from is affirmed. Costs of this appeal are assessed against Mrs. Katherine Daigrepont.

REVERSED IN PART and AFFIRMED IN PART.


text:
    Freddie Wayne CLARK, Plaintiff-Appellant, v. A.L. LAIRD, et al., Defendants-Appellees.
    No. 83-988.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.
    Writ Denied Jan. 7,1985.

      Ford & Nugent, Howard N. Nugent, Jr., Alexandria, for plaintiff-appellant.
    Bolen & Erwin Ltd., Gregory S. Erwin, Alexandria, for defendants-appellees.
    Before DOMENGEAUX, CUTRER and LABORDE, JJ.
   LABORDE, Judge.

Plaintiff, Freddie Wayne Clark, instituted this personal injury suit for damages arising out of a rear-end collision wherein defendant, A.L. Laird, collided with the rear of plaintiff’s preceding truck. Defendant’s insurer, Carolina Casualty Insurance Company, was also made a party defendant to this action. A twelve member jury found Laird 60% at fault, returning an award of $4,360.63 for special damages and $18,000 for general damages. We find no manifest error or abuse of discretion in the jury’s determinations or the trial court proceedings. We affirm.

FA'CTS

On September 13,1982 plaintiff-was driving his pickup truck proceeding east on Highway 84. He was being followed by defendant, who was driving a loaded pulpwood truck. As plaintiff slowed down to negotiate a left turn, defendant’s truck struck the rear of plaintiff’s vehicle, pushing it off the road. It is disputed whether plaintiff used his turn signal to indicate his intention to turn. The record shows that there were no skid marks evidencing defendant’s attempt to stop. Defendant stated that he was traveling approximately 35-45 miles per hour when he collided with Clark’s truck.

Following the accident, plaintiff was physically injured and was unable to exit the truck. He was taken to LaSalle General Hospital for treatment and was released nine days later. While in the hospital, he underwent surgery for removal of a vertebrae disc fragment in his back.

Plaintiff instituted this suit against defendant and his insurer for damages allegedly caused by the accident. At trial, Clark contended that the free floating disc fragment condition, corrected by surgery, was proximately caused by the September 13th accident. Conversely, defendant argued that plaintiff’s condition resulted from a pre-existing back condition caused by prior accidents. The jury made an award of $18,000 for general and $4,360.63 for special damages after finding that defendant was 60% at fault in causing the accident and that plaintiff was comparatively at fault under LSA-C.C. art. 2323 to the extent of 40%. Several experts were called to testify, all of which were awarded $300 each representing expert witness fees. All parties have appealed.

ISSUES

The following issues are presented on appeal:

(1) Whether the trial judge properly denied plaintiff’s motion for a directed verdict at the close of the evidence;
(¾) Whether the jury committed manifest error in attributing fault proportionately among the parties;
(3) Whether the jury abused its discretion in the award of damages to plaintiff;
(4) Whether the trial judge properly denied plaintiff’s motion for new trial; and,
(5) Whether the trial judge’s assessment of court costs and setting of expert witness fees were within reasonable discretion.

ISSUE # 1: DIRECTED VERDICTS

At the close of the evidence, Clark moved for a directed verdict on the issue of Laird’s liability. He contends that the evidence overwhelmingly shows Laird’s liability and that there was no showing of contributory negligence. The trial judge denied the motion and submitted the case to the jury for decision.

Pursuant to LSA-C.C.P. art. 1810 a directed verdict may be granted in favor of the moving party if the facts and reasonable inferences taken from the evidence are so overwhelmingly in favor of the moving party that the trial judge believes that reasonable men could not arrive at a contrary verdict. Oppenheim v. Murray Henderson Undertaking Co., Inc., 414 So.2d 868 (La.App. 4th Cir.1982). In jury trials, the judge should view the evidence in a light most favorable to the non-moving party in ruling on the motion for directed verdict. Likewise, on appeal we must view and interpret the facts and evidence in a light most favorable to the party opposing the motion in determining whether the motion was properly granted or denied. Grimes v. Stander, 394 So.2d 1332 (La.App. 1st Cir. 1981); Campbell v. Mouton, 373 So.2d 237 (La.App. 3rd Cir.1979) (remanding to trial court), aff'd, 412 So.2d 191 (La.App.3d Cir.), writ denied, 415 So.2d 954 (La.1982).

After thoroughly reviewing the record, we find evidence which substantially questions plaintiffs allegations that his present injuries are directly attributable to the rear-end collision. The evidence bears out plaintiffs pre-existing injuries and suffering allegedly caused by prior accidents. There is also substantial dispute found in the testimony as to how the instant accident occurred. Defendant alleges that plaintiff did not use his turn signal to warn following motorists of his intent to turn. We also find conflicting testimony which casts doubt on plaintiffs version of the accident.

In light of these factual disputes fully established and apparent in the evidence presented, we find, as did the trial judge, that reasonable triers of fact could arrive at a verdict contrary to the plaintiff based upon their interpretation and reliance upon the evidence. After construing the evidence in a manner most favorable to defendant, we do not find the evidence to be overwhelmingly in favor of plaintiff. This, however, does not mean that the evidence is overwhelmingly in favor of defendant either. Nevertheless, the trial judge properly denied the motion and submitted the case to the jury for decision.

Under LSA-C.C.P. art. 1810, the trial judge has much discretion in determining whether a motion for a directed verdict should be granted. Vallery v. All American Life Ins. Co., 429 So.2d 513 (La.App. 3rd Cir.), writ denied, 434 So.2d 1091, (La.), amended, 434 So.2d 1110 (La.1983). We find no abuse in this instance.

ISSUES # 2 & 3: FAULT AND DAMAGES

After hearing the evidence, the jury determined that although liable, Laird was only 60% at fault in causing the accident. Clark was found to be 40% at fault in contributing to the cause of the rear-end collision. Both parties have appealed this jury determination alleging that they are without fault.

The evidence is conflicting in several regards. The paramount consideration of causation is initially disputed with substantial allegations by defendant that plaintiff’s injuries were manifestations of pre-existing conditions caused by prior accidents. The party litigants next argue the facts surrounding the occurrence of the accident and how it happened. There is contradictory testimony as to whéther Clark made use of his turn signals just prior to the collision. There is no evidence of skid marks evidencing Laird’s attempt to avoid the collision. If the jury determined that Clark had not given a turn signal when negotiating his turn, they could have reasonably found that this negligence was a contributing cause of the accident. The duty of a preceding motorist to indicate his intention to turn by use of a turn signal encompasses the risk that if such warning is not given, a following motorist may not have proper and adequate notice to avoid colliding with the rear of the preceding motorist. Likewise, the jury may have also determined from the evidence that Laird was following too closely without maintaining a proper outlook and control of his vehicle and the jury could have found that his negligence was also a contributing and/or concurring cause of the accident. We recognize the legal duty of a following motorist to maintain a safe and guarded distance while following. LSA-R.S. 32:81; Anderson v. Craig, 401 So.2d 1022 (La.App. 4th Cir.1981). This duty encompasses the risk of harm from which the plaintiff suffered in this instance, i.e., a rear-end collision. The record contains ample evidence from which a reasonable fact finder might conclude that defendant breached this duty to plaintiff. The jury may also have reasonably found that both plaintiff and defendant breached a legal duty towards each other and that this concurring negligence caused the accident.

In Guidry v. Cagle Brothers Circle C Pump Service, Inc., 453 So.2d 1280 (La. App. 3rd Cir.1984), we stated:

“However, failure to maintain a specific distance between automobiles proceeding in the same direction does not constitute negligence per se. The facts of each case determine what is a safe or reasonable distance and the following motorist is only liable for failing to avoid forseeable dangers and emergencies.” (emphasis added)

The driver of the following automobile is entitled to rely upon the assumption that the preceding automobile is being driven with care and caution in accordance with the laws of the highway and that the driver thereof will not commit acts of negligence which will endanger the following traffic. Guidry v. Cagle Brothers Circle C Pump Service, Inc., supra; Cisneros v. Ferro, 411 So.2d 1212 (La.App. 4th Cir.), writ denied, 413 So.2d 505 (La.1982).

After conducting a review of the record, we find no abuse of discretion in the jury’s award to plaintiff. It is replete that plaintiffs pre-existing condition was aggravated by the accident for which he was partly at fault. His hospitalization lasted nine days and his pain and suffering was substantially reduced by the operation. Under the circumstances, we cannot say that the award of $4,360.63 for special damages and $18,000 for general damages is either excessive or inadequate.

We find no manifest error in the jury’s determinations, apportionment of fault and award of damages. The jurors concluded from the weight of the evidence and the law that both plaintiff and defendant committed acts of negligence which contributed to the accident. In Triangle Trucking Co. v. Victor Alexander, Jr., et al., 451 So.2d 638 (La.App. 3rd Cir.1984), we recently held that a trier’s findings as to percentages of fault under LSA-C.C. art. 2323 are factual, just as findings of contributory negligence under the old law were factual. Varnado v. Continental Ins. Co., 446 So.2d 1343 (La.App. 1st Cir.1984); Johnson, Comparative Negligence and the Duty/Risk Analysis, 40 La.L.Rev. 319 (1980).

We may not disturb a jury’s findings and conclusions of fact in the absence of clear and manifest error, or abuse of discretion. See Canter v. Koehring Company, 283 So.2d 716 (La.1973). After thoroughly reviewing the record, we find no manifest error or abuse of discretion by the jury in their factual determinations and apportionment of fault to the parties. Nor do we find an abuse of discretion in the award of damages. Accordingly, the jury’s verdict and award must be upheld on appeal.

ISSUE # 4: NEW TRIAL

Clark next contends on appeal that he was deprived of his rights to a fair trial because a juror misstated matters on voir dire and openly admitted that he had compromised with other jurors and had even “held out” on Laird’s negligence.

LSA-C.C.P. art. 1972 provides in pertinent part:

“A new trial shall be granted upon contradictory motion of any party, in the following cases:
(3) When the jury was bribed or has behaved improperly so that impartial justice has not been done.”

Clark argues that this juror who “held out” for Laird during deliberations influenced, and somehow affected the jurors’ votes. Aside from Clark’s mere allegations of misconduct, we find no evidence or showing to substantiate this contention.

Our review of the record, including the voir dire examination, convinces us that the jurors based their verdict solely on the evidence presented rather than extrinsic matters or alleged statements made by one juror. We refuse to interfere with the deliberations and determinations of jurors when conducted under circumstances where it can be safely assumed that impartial justice was achieved. Thibeaux v. State Farm Mutual Automobile Insurance Company, 285 So.2d 363 (La.App. 3rd Cir.1973), writ denied, 287 So.2d 191 (La. 1974).

For these reasons, the trial judge’s denial of Clark’s motion for new trial shall not be disturbed on appeal.

ISSUE # 5: COURT COSTS

In spite of the apportionment of fault between the parties, the trial judge assessed court costs solely against defendant. Laird appeals from this imposition of costs and additionally contends that the trial judge’s general expert witness fee of $300 per expert is likewise excessive and an abuse of discretion. We disagree.

The trial judge has great discretion in assessing costs, but the general rule is that costs are to be paid by the party cast in judgment. LSA-C.C.P. art. 1920; Hall v. Mid-American Cas. Co., 413 So.2d 640 (La.App. 1st Cir.1982). Although plaintiff is proportionately at fault in this instance, we do not find that the trial judge abused his discretion by imposing costs solely upon defendant, the party of greater proportionate fault.

We further find that the expert witness fee of $300 per expert is not excessive. Appellate courts of Louisiana have upheld awards of expert witness fees up to $350 in the past. Gillis v. Great Atlantic & Pacific Tea Company, 95 So.2d 186 (La. App. 1st Cir.1957); see also Pickett v. Norwich Union Fire Insurance Society, 119 So.2d 566 (La.App. 1st Cir.1960). Therefore, we find no basis to disturb the trial judge’s setting of expert witness fees and assessment of court costs in this instance.

DECREE

Based on the above and foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are to be shared equally between plaintiff and defendants since each have perfected a separate appeal from the trial court judgment.

AFFIRMED.