author: GRISBAUM, Judge.

text:
    Mary Brown O’Brien wife of/and William Smith O’BRIEN v. Sandra SHEPLEY and Frank Shepley.
    No. 83-CA-783.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 14, 1984.
    Wiley J. Beevers, Barbara Volk Madere, Metairie, for appellants.
    Rodney J. Madere, Metairie, for appel-lees.
    Before CHEHARDY, BOWES and GRIS-BAUM, JJ.
   GRISBAUM, Judge.

This is an appeal from a judgment denying the paternal grandparents’ (who are also the adoptive parents) rule to terminate the visitation by the maternal grandparents of a minor child whose parents are both deceased. We affirm.

Three issues are presented:

(1) Whether the trial court lacked subject matter jurisdiction?

(2) Whether Louisiana Revised Statute 9:572(B) is applicable when both parents of a minor child are deceased?

(3) Whether the trial court abused its discretion in its determination of what is in the best interest of the child?

The parents of Erin E. O’Brien are deceased. The father died in September 1981; the mother, in March 1982. Thereafter, the child lived with her maternal grandmother, Sandra Shepley (Sandra and Frank Shepley were separated at that time and are now divorced). On March 19,1982, the paternal grandparents, Mary and William O’Brien, filed a writ of habeas corpus in the district court and requested custody of Erin. Custody of Erin was awarded to Mr. and Mrs. O’Brien on March 23, 1982.

In June 1982, the Shepleys filed a “Rule for Visitation.” Visitation rights were granted pursuant to Louisiana Revised Statute 9:572. The maternal grandmother was to have visitation every Thursday from 1 p.m. to 5 p.m., and the maternal grandfather was to have visitation on every Saturday from 1 p.m. to 5 p.m. These visitation rights were conditioned upon Mrs. Shep-ley’s posting a $25,000 bond and upon neither of the maternal grandparents removing the child from the boundaries of Orleans and Jefferson Parishes.

In December 1982, in a proceeding in the Juvenile Court of Jefferson Parish, the O’Briens (her paternal grandparents) legally adopted Erin. Thereafter, in March 1983, they filed a petition in the district court to terminate the visitation of Erin’s maternal grandparents. After a hearing, the trial judge dismissed the paternal grandparents’ rule to terminate visitation; however, he reduced visitation to one day a week with no visitation during the month of August. From this judgment, the paternal grandparents appeal.

In addressing the initial issue of whether the trial court lacked subject matter jurisdiction, we are guided by Louisiana Constitution of 1974 and other statutory provisions. Setting forth district court jurisdiction, the Louisiana Constitution in Article 5 Section 16 of 1974 provides:

Except as otherwise authorized by this constitution, a district court shall have original jurisdiction of all civil and criminal matters.

Article 5 Section 18 provides:

Notwithstanding any contrary provision of § 16 of this article, juvenile and family courts shall have jurisdiction as provided by law.

Article 5 Section 18 provides that the jurisdiction of juvenile and family courts shall be established “as provided by law.” Presently, the legislature in Louisiana Revised Statute 13:1570 has set forth the only expression of original exclusive jurisdiction of the juvenile courts. Louisiana Revised Statute 13:1570 provides in part:

Except as otherwise provided herein, the court shall have exclusive original jurisdiction in proceedings:
A. Concerning any child whose domicile is within the parish or who is found within the parish:
(1) Whose parent or other person legally responsible for the care and support of such child neglects or refuses, when able to do so, to provide proper or necessary support, education as required by law, or medical, surgical or other care necessary for his wellbeing; or who is abandoned by his parent or other custodian; or who is otherwise without proper care, custody, or support; or who is a live born human being, as defined in R.S. 13:1569(16)(e), who survives and is not killed in an abortion attempt....

A similar question of jurisdiction arose in Girouard v. Halpin, 368 So.2d 1139 (La. App. 3d Cir.1979). In that case, a summary proceeding (which involved a child’s natural mother’s request for custody) was filed in a district court. Judge Culpepper, writing for the panel of the Third Circuit, discussed the caselaw concerning district court jurisdiction in “child” related cases. After reviewing the caselaw, the Girouard court explains that it appears juvenile courts do not have exclusive jurisdiction in a custody dispute between a parent and a non-parent where the child is not in a present state of neglect, requiring that the state protect the welfare of the child. The Girouard court went on to hold that the district court had jurisdiction of a summary judgment proceeding to obtain child custody.

While recognizing the specificity of the Girouard holding, we agree with its rationale. The Girouard court indicates, and we agree, that in cases involving questions of neglect, especially where the state is a party to an action, juvenile courts have exclusive jurisdiction. From our review of Louisiana caselaw, it appears that in other cases pertaining to custody and issues incidental to the custody of a child, district courts and juvenile courts have concurrent jurisdiction.

In this case there has been no indication in the record of any question of neglect. Therefore, from our analysis and under the facts and circumstances of this cases, we find the district court had subject matter jurisdiction.

We are also called upon to decide whether the Louisiana Revised Statute 9:572(B) is applicable when both parents of the minor child are deceased. We note our Civil Code article 214 which states:

... Otherwise, upon adoption: the blood parent or parents and all other blood relatives of the adopted person, except as provided by R.S. 9:57'2(B), are relieved of all of their legal duties and divested of all of their legal rights with regard to the adopted person ... (Emphasis added)

We also note Louisiana Revised Statute 9:572(B) provides as follows:

B. Notwithstanding any provision of law to the contrary contained in Article 214 of the Louisiana Civil Code, in the event of an adoption, the natural parents of a deceased party to a marriage dissolved by death may have limited visitation rights to the minor child or children of the marriage dissolved by death; provided the natural parents of a deceased party prove that they have been unreasonably denied visitation rights and such limited visitation rights would be in the best interests of the minor child or children; and provided further, that the adoption takes place after the parent whose parents are seeking visitation rights is deceased. The court shall consider all relevant factors in reaching a conclusion, including without limitation psychological evaluation, and it may order an investigation by the Department of Health and Human Resources.

Fortunately, our jurisprudence has given us general principles for statutory interpretation. As stated in Lucas v. Berkett, 233 La. 896, 98 So.2d 229, 235 (1957), the function of the courts is to interpret the law so as to provide the connotation the lawmaker obviously intended and not to construe statutes so rigidly as to give them preposterous or odd meanings. Where a literal interpretation would produce absurd consequences, the statute must be construed so as to produce a reasonable result. Also, Louisiana Civil Code article 18 states:

The universal and most effectual way of discovering the true meaning of a law, when its expressions are dubious, is by considering the reason and spirit of it, or the cause which induced the Legislature to enact it.

We find, by its enacting Revised Statute 9:572(B), the legislature recognized the love, affection, and developmental needs of a grandchild which grandparents can provide, as well as the correspondent need of grandparents to maintain and nourish the love and affection of their grandchild. We also recognize our legislature protects the rights of adoptive parents and adopted children in Civil Code article 214. By enacting Louisiana Revised Statute 9:572(B), it established certain limited visitation rights for grandparents when, and only when, those rights have been unreasonably denied, along with the further proviso that visitation could only be affected when, in the court’s determination, it would be in the best interest of the minor child. The spirit of Louisiana Revised Statute 9:572(B) is promoted by allowing grandparent visitation when both parents die, and the child is then adopted by one set of the grandparents. We see no logic in limiting its application to the death of one parent.

In addressing the final issue of whether the trial court was clearly wrong in its factual finding that visitation with the maternal grandparents was in the best interest of the minor child, we refer to the trial judge’s reasons for judgment; he states, “... Nothing I heard today convinces me that the visitation by the grandparents is detrimental to the child.” The appellants contend the trial court did not specifically address the relevant factors in determining what is in the best interest of the child (e.g., stability, security and continuity); and, therefore, the trial judge was “clearly wrong.”

Much of the testimony by the paternal grandparents focused on the inconvenience caused by the child’s visitation with her maternal grandparents. The paternal grandparents considered the visitation “disruptive” to their family and to Erin. Only the paternal grandparents testified that Erin was “upset” by visits with the maternal grandparents. The record also reflects the maternal and paternal grandparents did not get along with each other. Finally, a careful review of the record reveals the trial judge listened, to the testimony of the O’Briens as well as the Shepleys and concluded that limited visitation rights were in the best interest of the child. While the trial judge did not articulate all his reasons, we find the record does reflect the trial judge had a factual basis for his conclusion. Therefore, we find the trial judge was not clearly wrong in granting the limited visitation rights to the maternal grandparents.

For the reasons assigned, we affirm the judgment of the trial court. All costs of this appeal are to be assessed against the appellant.'

AFFIRMED.


source: Caselaw Access Project

author: LABORDE, Judge.

license: Public Domain

text:
    Norman BOUDREAUX, Jr., Plaintiff-Appellant, v. EXXON COMPANY, U.S.A., Defendant-Appellee.
    No. 83-171.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1984.
    Rehearing Denied June 14, 1984.

      Robert B. Keaty, Lafayette, for plaintiff-appellant.
    Robert H. Wood, Jr. and Louise White, New Orleans, Gregory J. LaBorde, Allen, Gooch, Bourgois, Breaux & Robison, P.C., Randall K. Theunissen, Lafayette, for defendant-appellee.
    Before FORET, LABORDE and YELVERTON, JJ.
   LABORDE, Judge.

Plaintiff, Norman Boudreaux, Jr., an employee of Luke Construction Company, Inc. (Luke) instituted this tort action against defendant, Exxon Corporation (initially designated as Exxon Company, U.S.A.), for personal injuries sustained by him while performing “roustabout” chores for Exxon. Plaintiff alleges that he was injured as a result of defendant’s negligence. Following a jury trial, plaintiff’s case was dismissed. The jury determined that Exxon was the statutory employer of plaintiff and alternatively, that defendant was free from any negligence as alleged by plaintiff. Plaintiff appealed from that judgment and on November 16, 1983, this court, in Boudreaux v. Exxon Company, U.S.A. 441 So.2d 79 (3rd Cir.1983), set aside the jury verdict. The case was remanded to the trial court by us so that further evidence could be adduced relative to the statutory-employee status of plaintiff. Defendant subsequently procured a writ from the Louisiana Supreme Court, setting aside our judgment for remand, ordering the Third Circuit, Court of Appeal to render judgment on appeal based on the exclusive evidence in the record. After a thorough review of the record and after due consideration of the briefs presented on remand, we set aside that portion of the jury’s verdict finding plaintiff to be a statutory employee of Exxon, but affirm the jury’s determination that defendant was not negligent. The trial court’s result is affirmed.

The issues on appeal are:

1) Whether. Exxon was the statutory employer of plaintiff;
2) Whether Exxon negligently caused plaintiff’s injuries; and,
3) Whether the trial court committed reversible error by disallowing evidence of subsequent remedial safety measures by Exxon.

FACTS

On March 12, 1982, plaintiff received severe injuries to his left hand while unloading trash bins at Exxon’s Intercoastal City terminal facility. Plaintiff was employed, at the time of the accident, as a “roustabout” by Luke, which was performing labor and/or “roustabout” work for Exxon pursuant to a work contract. The injury occurred when a small trash bin, attached to a crane operated by another Luke employee and guided by plaintiff, collided with a larger bin, smashing plaintiff’s left hand.

Plaintiff sued Exxon, alleging that Exxon’s negligence caused the injuries. Exxon denied such allegations and affirmatively pleaded that plaintiff’s exclusive remedy against Exxon was in worker’s compensation, since Exxon was his statutory employer under the Louisiana worker’s compensation laws. Exxon filed a third-party demand against Luke, seeking indemnity or contribution pursuant to the work contract between them in event Exxon was cast in judgment for Broussard’s injuries.

Following the close of evidence at trial, special interrogatories were submitted to the jury. Counsel for all parties agreed that to avoid the possibility of a remand by the appellate court in the event the statutory employer issue was improperly decided, the jury would make a determination as to Exxon’s negligence vel non so that the case could be properly and completely adjudicated on appeal. The jury rendered a verdict finding plaintiff to be the statutory employee of Exxon, and further, that Exxon was not negligent. Plaintiff appeals from that decision.

We now consider the merits of this appeal based on the record before us.

ISSUE #1: STATUTORY EMPLOYER

At the outset, plaintiff argues that the statutory employer defense is unavailable to Exxon since plaintiff is covered exclusively by the Longshoreman & Harborworker’s Compensation Act (LHWCA), 33 U.S.C. section 901 et seq., rather than the Louisiana Workmen’s Compensation Act which contains the defense. LSA-R.S. 23:1061 and 23:1032. We disagree. Plaintiff is not an employee within the meaning of the LHWCA sec. 902(3) because he does not fulfill the dual test of maritime status and situs. P.C.Pfeiffer Co., Inc. v. Ford, 444 U.S. 69, 100 S.Ct. 328, 62 L.Ed.2d 225 (1979); Hebert v. Union Oil Co. of California, 405 So.2d 1135 (1st Cir.1981).

Pursuant to LSA-R.S. 23:1061, when a contractor is doing work for a principal and that work is a part of the principal’s “trade, business or occupation ... ”, the principal is liable to the contractor’s employees for workmen’s compensation benefits. The principal is considered the statutory employer of the contractor’s employees. LSA-R.S. 23:1032 limits the statutory employee’s recovery against the statutory employer to workmen’s compensation benefits.

In Vincent v. Ryder Enterprises, Inc., 352 So.2d 1061 (3rd Cir.1977), we set forth four criteria which must be examined to determine whether a statutory employer-employee relationship exists.

1) The relationship of principal-contractor must exist.
2) There must be a contract between the principal and contractor for the execution by the contractor of the whole or any part of the work being undertaken by the principal.
3) The work which is the subject of the contract must be part of the principal’s trade, business or occupation.
4) The injured employee must be engaged in the execution of the work as described above.

In this instance, a contractual relationship did exist between Exxon and Luke. This contract included an obligation on Luke’s part to dump the baskets brought from the Exxon rigs into the Exxon yard. Mr. Boudreaux was engaged in the performance of this work at the time of his injury. The crucial question that remains is whether the work involved, transferring the waste from the baskets to the bins, was a part of Exxon’s trade, business or occupation. Exxon had the burden of proving at the trial level that dumping the waste was a part of its trade, business or occupation. Reeves v. Louisiana and Arkansas Railway Company, 282 So.2d 503 (La.1973).

Prior to rendition of the Louisiana Supreme Court cases, which we discuss later, the prevailing test in this circuit for determining whether the work performed was a part of the principal’s trade, business or occupation was whether the contract work was essential and necessary to the successful operation of the alleged statutory employer’s business. Vincent v. Ryder Enterprises, Inc., supra. It is inescapable that the trash dumping activity, in which Boudreaux was involved at the time of injury, was essential and necessary to the successful operation of Exxon’s business. The Coast Guard and Environmental Protection Agency regulations prohibit the dumping of trash offshore. Thus, Exxon is required to bring refuse from its offshore platforms onto land for its disposal. It would appear to constitute an essential part of Exxon’s business. However, several recent Supreme Court decisions reflect that this showing is not sufficient to establish statutory employer status. In Thompson v. South Central Bell Tel. Co., 411 So.2d 26 (La.1982), the Louisiana Supreme Court stated that another important factor in determining whether the principal is the statutory employer is whether the principal itself has ever performed the work for which it engaged the contractor. The Supreme Court later clarified this idea by finding that if “the work being performed by the contractor’s employee is customarily performed by employees of the principal, it is part of the principal’s trade, business or occupation”, Lewis v. Exxon Corp., 441 So.2d 192 (La.1983). Further, the Supreme Court held in Benson v. Seagraves, 436 So.2d 525 (La.1983), that if the work involved is not customarily performed by employees of the principal, the principal is not the statutory employer of the contractor’s employees.

Norman Boudreaux was an acknowledged “roustabout” employee of Luke, and was acting in this capacity when he was injured. The term “roustabout” is peculiar to the oil industry and used to describe an individual employed in the oil industry who performs various types of manual labor essential to the exploration for and production of oil or gas. In view of the fact that dumping trash was one of the manual tasks performed by “roustabout” Bou-dreaux, the question arises as to whether the record reflects with any degree of certainty, the tasks ordinarily performed by “roustabouts” and whether the tasks performed in this case by “roustabout” Bou-dreaux were of such a nature as to constitute a part of Exxon’s trade, business or occupation. We find that the record is incomplete in this respect, and in the interest of justice, and considering Lewis v. Exxon, supra, and Benson v. Seagraves, supra, both of which were decided subsequent to the trial of the instant case, it is critical that these facts be established in order that the court can determine whether or not Exxon was a statutory employer.

In the absence of these material facts, and for reasons expressed in our previous judgment on appeal, we hold that the jury’s determination regarding the statutory employee status of plaintiff is clearly wrong.

For these reasons, we set aside that portion of the jury’s verdict and pretermit the determination of plaintiff's statutory employee status.

ISSUE #2: EXXON’S NEGLIGENCE

The trial court specifically instructed the jury to decide whether Exxon was negligent regardless of how it decided the statutory employer issue. Counsel agreed to these instructions to avoid retrial of the case in event that the appeal court would reverse the jury verdict as to the statutory employment issue. Having set aside that portion of the jury verdict, we must now review the merits of plaintiff’s action ex delicto in accordance with the Louisiana Supreme Court’s order to do so. Judicial economy is best served by the appellate court now reviewing the correctness of the jury’s finding Exxon free of any negligence. Ragas v. Argonaut Southwest Ins. Co., 388 So.2d 707 (La.1980); Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975).

The accident giving rise to this suit occurred during a trash dumping procedure performed exclusively by Luke personnel. Kevin Choate, a Luke crane operator, lifted trash baskets into position between two bins while two “roustabouts”, plaintiff and Kim Frederick, attached the lines to the basket. Frederick attached the lines on the ground and the baskets were lifted. Plaintiff was standing on top of a large bin as the crane operator swung the basket over to him so that the cables could be repositioned and the basket dumped. In the course of the crane operator’s swinging of a basket, plaintiff had to jump from the large bin to avoid being hit. During this event, his hand was smashed as the basket collided with the bin. Plaintiff therefore places responsibility for his accident with the crane operator, Mr. Choate, whom he believed to be an Exxon employee until trial. Neither of the Exxon employees who were on duty at the time witnessed the accident or exercised control over the trash dumping procedure used by plaintiff and the Luke employees.

The service supervisor for Exxon, Mr. John Boykin, testified that he never saw a Luke employee stand on top of a trash bin to balance a basket of trash. Rather, it was Exxon’s understanding that Luke’s employees were to use “trash chutes” provided by Exxon rather than the balancing procedure which caused the plaintiff’s injuries.

It is apparent that the accident was caused by plaintiff’s own negligence and/or that Luke’s crane operator was negligent. Exxon observed its legal duty to provide the Luke workers, with safe working conditions by providing the “trash chutes”. Plaintiff’s injuries are not causally related to Exxon’s alleged negligence. We find the cause-in-fact of plaintiff’s accident to be the plaintiff’s and/or the crane operator’s failure to follow the proper trash dumping procedures.

Plaintiff failed to raise any specification of error regarding the jury’s determination that Exxon was not negligent. After conducting a thorough review of the record, we hold that the jury had sufficient evidence presented before them at trial from which they could reasonably find Exxon free of negligence. The instructions by the trial judge to the jury on the issue of negligence are correct, clear and free from any confusion. Accordingly, we find no manifest error in the jury’s determination that Exxon was not negligent. In the absence of manifest error or abuse of discretion the trier’s findings of fact, reasonable evaluations and inferences must be left undisturbed on appeal. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

For these reasons, we affirm that portion of the jury’s verdict finding defendant, Exxon, not negligent. Plaintiff’s suit was properly dismissed for.this reason.

ISSUE #3: ADMISSABILITY OF EVIDENCE: REMEDIAL MEASURES

Finally, plaintiff argues that the trial court erroneously refused the admission of certain evidence pertaining to remedial measures taken by defendant following plaintiffs accident to prohibit any similar injuries in the future. Plaintiff contends that the evidence was offered to prove Exxon’s “control” over the Luke employees, a material fact surrounding plaintiffs statutory employee status.

Evidence of changes, repairs or corrective measures taken subsequent to an accident, for purposes of preventing a similar recurrence, is inadmissible to show negligence or to establish an admission of fault. Esta v. Dover Corp., 385 So.2d 439 (1st Cir.1980). We hold that the evidence was properly disallowed since it was irrelevant as a matter of law as to Exxon’s alleged negligence. We further hold that such evidence would have unduly confused or served to mislead the jury if admitted for the limited purpose of establishing Exxon’s “control” over the Luke employees. This ruling did not prejudice plaintiff since there was other adequate evidence from which the jury may have drawn inferences of Exxon’s “control” over the Luke employees. The evidence was therefore properly disallowed.

DECREE

For the foregoing reasons and in accord with our previous judgment, we hold that the jury committed manifest error by determining the statutory employee status of plaintiff in the absence of necessary and material facts; the trial court’s dismissal of plaintiff’s suit must be affirmed since the jury properly and alternatively found defendant to be free of any negligence attributable to plaintiff’s injury.

Accordingly, on the basis that defendant was free of any negligence, the result of the trial court is affirmed at appellant’s cost.

AFFIRMED.

YELVERTON, J., concurs in the result only.


author: GUIDRY, Judge.

text:
    Samuel Lee HILTON, Plaintiff-Appellee, v. Nancy Claire Thomas HILTON, Defendant-Appellant.
    No. 83-530.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1984.

      Thomas, Dunahoe & Gregory, Edwin Du-nahoe, Natchitoches, for defendant-appellant.
    Charles W. Seaman, Natchitoches, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and DOUCET, JJ.
   GUIDRY, Judge.

The sole issue on appeal in this matter is the defendant’s entitlement to alimony after divorce. The parties were judicially separated by judgment dated July 27, 1982. In that judgment, the plaintiff, Samuel Lee Hilton, was ordered to pay the defendant, Nancy Claire Thomas Hilton, alimony pen-dente lite in the amount of $600.00 per month. The plaintiff thereafter filed a petition for divorce. The defendant answered the petition, seeking alimony after divorce of $600.00 per month. The trial court granted a judgment of divorce, and awarded the defendant alimony in a single lump sum of $1800.00, to be paid at the rate of $300.00 per month over a six month period. The defendant, Nancy Claire Thomas Hilton, appeals.

Appellant contends that the trial court erred in awarding alimony in a lump sum without consent of the parties. We find this contention to be well founded.

LSA-C.C. Art. 160 provides the criteria for determining a spouse’s entitlement to alimony after divorce. The article was amended and reenacted by two separate acts of the 1982 Legislative Session, Acts 1982, No. 293, § 1 and Acts 1982, No. 580, § 1. Both acts were approved by the Governor, and both became effective on the same date, sixty days after the adjournment of the 1982 regular session. Section A of the text of the article as amended by Act No. 293 is substantially identical to the full text as amended by Act No. 580. The only substantial difference between the two versions of the article is the addition, in the text as amended by Act No. 293, of Section B, providing courts the option of awarding alimony in a lump sum. It provides:

“B. The court may award alimony in lump sum in lieu of or in combination with permanent periodic alimony when circumstances require it or make it advisable, and the parties consent thereto. In determining whether to award lump sum alimony, the court shall consider the needs of the claimant spouse and the financial condition of the paying spouse. In awarding lump sum alimony in lieu of or in combination with permanent periodic alimony, the court shall consider the criteria enumerated in paragraph A of this article, except the limitation to one-third of the paying spouse’s income, in determining entitlement and amount of alimony.
A lump sum award may consist of immovable or movable property or may be a monetary award payable in one payment or in installments.
A judgment which awards lump sum alimony shall vest in the claimant spouse a right which is neither terminable upon either spouse’s remarriage or death, nor subject to modification.”

No provision for an award of alimony in a lump sum appears in the text of Article 160 as amended by Act 580.

The jurisprudence makes clear that, where two acts relating to the same subject are passed in the same legislative session, there is a strong presumption against implied repeal. The statutes are to be construed together, if possible, so as to give effect to each. Chappuis v. Reggie, 222 La. 35, 62 So.2d 92 (1952); State in the interest of Wright, 408 So.2d 1123 (La.App. 1st Cir.1981).

We find no conflict in the two versions of Article 160 enacted in the 1982 Legislative Session. The two versions contain identical provisions regarding the criteria to be used in determining an award of alimony after divorce. The only substantial difference between the two versions is that one provides the courts the additional option of awarding alimony after divorce in a lump sum. Absent a conflict in the two versions of the article, we conclude that both versions of LSA-C.C. Art. 160 must be afforded legal efficacy.

While an award of alimony in a lump sum is authorized by LSA-C.C. Art. 160, such an award may only be made with the consent of the parties. Section B of the article (as amended by Act 293 of 1982) provides in pertinent part:

“B. The court may award alimony in lump sum in lieu of or in combination with permanent periodic alimony when circumstances require it or make it advisable, and the parties consent thereto.” (emphasis supplied).

The foregoing provision clearly indicates that without consent of the parties, an award of alimony may not be made in a lump sum.

The record in the instant case is devoid of any evidence that either party consented to a lump sum award of alimony. The defendant’s answer to the divorce petition, wherein she alleges her entitlement to alimony, asks for a permanent monthly award of $600.00 per month. There is no request for, consent to, nor mention of a lump sum alimony award in any of the pleadings nor in the trial transcript. Because such consent is a mandatory prerequisite to an award of alimony in a lump sum, the trial court’s judgment awarding defendant alimony in a single lump sum was error.

While we conclude that the trial court’s judgment was error, we find it unnecessary to remand the matter for a reconsideration of the award. The matter was fully tried, and a complete record is before us. We therefore choose to decide the case based on our review of the complete record. Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975).

LSA-C.C. Art. 160 provides the following criteria for determining the entitlement and amount of alimony after divorce:

“A. When a spouse has not been at fault and has not sufficient means for support, the court may allow that spouse, out of the property and earnings of the other spouse, permanent periodic alimony which shall not exceed one-third of his or her income. Alimony shall not be denied on the ground that one spouse obtained a valid divorce from the other spouse in a court of another state or country which had no jurisdiction over the person of the claimant spouse.
In determining the entitlement and amount of alimony after divorce, the court shall consider the income, means, and assets of the spouses; the liquidity of such assets; the financial obligations of the spouses, including their earning capacity; the effect of custody of children of the marriage upon the spouse’s earning capacity; the time necessary for the recipient to acquire appropriate education, training, or employment; the health and age of the parties and their obligations to support or care for dependent children; and any other circumstances that the court deems relevant.
In determining whether the claimant spouse is entitled to alimony, the court shall consider his or her earning capability, in light of all other circumstances.
Permanent periodic alimony shall be revoked if it becomes unnecessary and terminates if the spouse to whom it has been awarded remarries.”

The initial inquiry is a determination of whether the defendant has sufficient means for her support. The claimant spouse has the burden of proving necessitous circumstances. Kean v. Kean, 388 So.2d 398 (La.App. 1st Cir.1980). Until such need has been shown, the means of the other spouse are irrelevant. Kean v. Kean, supra; Moss v. Moss, 379 So.2d 1206 (La.App. 3rd Cir.1980).

In considering whether the spouse has sufficient means, the courts consider the expenses required to procure the basic necessities of life, such as food, shelter and clothing. Also included in the determination are reasonable and necessary automobile expenses, medical and drug expenses, utilities, household expenses, and income tax liability arising from alimony payments. Jordan v. Jordan, 432 So.2d 314 (La.App. 5th Cir.1983), writ denied, 438 So.2d 1111 (La.1983).

The record shows that the defendant, Nancy Thomas Hilton, is employed by her father, a doctor, as a bookkeeper-receptionist. She also works part time for another doctor. Her net take-home pay from both jobs is $794.80. She lists expenses which far exceed her income. These include a mortgage payment of $327.89 per month, a car note payment of $358.00 per month, a monthly note payment to City Bank in the amount of $158.00, and a monthly note payment to Peoples Bank in the amount of $250.00. The foregoing bank note obligations total $1,093.89 monthly. The defendant lists other expenses totalling $661.50, bringing her stated monthly expenses to a total of $1,755.39.

The record also shows that the defendant purchased the plaintiffs interest in the home they previously shared. In consideration of the transfer, the defendant assumed the entire balance of the note, dated September 4, 1981, in the principal amount of $28,500.00. The note is secured by a mortgage on the property. The record does not reflect how much equity the defendant has in the property. The only other assets the defendant owns, according to the record, are her automobile and her household furnishings and appliances.

We observe at the outset that the defendant’s employment probably constitutes an underutilization of her earning capacity, a factor which must be considered according to the mandate of Article 160. The defendant testified that she holds a masters degree in “recreation”. While .the record does not make clear what employment opportunities are available to her, we believe it reasonable to conclude that some job market exists for one who holds an advanced college degree. We also deem it reasonable to conclude that, if the defendant worked in a position in her field, where her advanced education and training could be utilized, she would be capable of earning more than the $800.00 per month she presently takes home.

The record further shows that the defendant lives alone and has no dependents. This circumstance, coupled with the evidence of the defendant’s earning capability, makes us reluctant to find that she is in necessitous circumstances so as to warrant an award of alimony after divorce. However, we find that the financial obligations of the defendant place her in a position such that she has insufficient means for her support, and that she is entitled to an award of alimony.

The defendant’s monthly mortgage payment of $327.89 is an expense which must be included in the calculation of the means necessary for her support. While we may question the wisdom of the defendant’s assumption of the entire balance of the debt due on the family home while in her precarious financial position, we are unable to say that these payments constitute an unreasonable housing expense. Furthermore, the jurisprudence makes clear that a wife is not required to sell her home and deplete the proceeds of the sale in order to be entitled to alimony after divorce. Sonfield v. Deluca, 385 So.2d 232 (La.1980); Vorisek v. Vorisek, 423 So.2d 758 (La.App. 4th Cir.1982). Only when large sums are tied up in extravagant housing will the continued possession of a home be considered sufficient means to defeat alimony. Vorisek v. Vorisek, supra; Kean v. Kean, supra. There is no showing that the defendant’s home is extravagant. Thus, whatever equity the defendant has in her home cannot be considered means sufficient to defeat her entitlement to alimony.

The fixed monthly bank note obligations of |158.00 to City Bank and $250.00 to Peoples Bank must likewise be considered. LSA-C.C. Art. 160 provides that the financial obligations of the spouses be considered. See also, Kean v. Kean, supra. The record does not reveal the purpose for which these loans were made. The defendant testified that the debts were community debts incurred during the marriage. In the absence of any showing that these debts represent unreasonable expenses, we are constrained to find that these financial obligations must be considered in determining what is required for the defendant’s support.

Reasonable and necessary automobile expenses are also relevant to the determination. We find that the defendant’s listed expenses are unreasonable. The defendant pays a monthly car note of $358.00. In addition, she lists her monthly automobile insurance expense at $38.50 and estimates her monthly gasoline expense at $60.00. Thus, the defendant’s automobile expenses are well over half of her take home pay of $794.80. We feel certain that reliable transportation can be had for less, and have little difficulty in characterizing this expense as unreasonable in light of the defendant’s financial position.

The defendant also lists monthly household expenses totaling $583.00. While certain of these amounts appear to us to be high for a one person household, there is no evidence in the record that they are not actually incurred.

Our review of the evidence leads us to conclude that the defendant has fulfilled the requirement of showing that she is in necessitous circumstances. Even if we reduce the automobile expense, her monthly obligations will exceed her income. Her degree of need, however, is diminished by our conclusion, stated above, that the defendant has an earning capability which exceeds her present income level. Nevertheless, we find that she is presently without sufficient means for her support.

We next consider the means, assets and income of the plaintiff to determine his ability to pay alimony. The record shows that the plaintiff, Samuel L. Hilton, is employed by Placid Oil Company, where he earns a net monthly salary of $1,696.91. In addition, the plaintiff collects retirement pay from the United States Marine Corps in the amount of $449.18 monthly, bringing his net monthly income to $2,146.09.

The total of the plaintiff’s listed monthly expenses is $2,761.33, well in excess of his net income. In addition, plaintiff owes a total of $12,704.82 in other debts, including overdue balances on several credit cards, outstanding personal loans, and attorney’s fees.

We find that many of the plaintiff’s listed expenses should not be considered for purposes of our determination of the plaintiff’s ability to pay alimony. The $600.00 per month in alimony pendente lite which he lists should not be considered, as the plaintiff will not incur this expense after divorce. We also do not consider the listed gift expense of $200.00 per month. The expenses listed for yard upkeep and entertainment ($40.00 and $100.00, respectively) may also be deleted for our purposes. The amount listed for tax/personal accounting ($45.00) is, by plaintiff’s admission, a onetime bill, and not a monthly expense. Deleting these unreasonable and/or unnecessary items brings the plaintiff’s monthly expenses down to $1,776.33. Further, we find that, like the defendant, the plaintiff spends an unreasonable amount on automobile related expenses. The record shows that the plaintiff recently purchased a new 1983 Ford pickup truck. His monthly car note, insurance, upkeep, and gasoline expenses total $683.76. We consider this an unwarranted extravagance for one who professes an inability to make ends meet. Certain other of the plaintiff’s expenses seem unreasonable, or at least overstated.

In sum, we find that the plaintiff has income sufficient to contribute to the support of his wife, who we find to be in necessitous circumstances. We are not unmindful of the fact that the plaintiff has many outstanding debts. However, we find that, with a more judicious use of his income, the plaintiff will be able to meet the alimony obligation we shall impose upon him as well as his other outstanding debts. In this regard, we observe that the award we make results in a significant reduction from the amount the plaintiff formerly paid in alimony pendente lite.

In light of all of the foregoing circumstances, we determine that an award of $150.00 per month is justified. We award the defendant this amount in alimony after divorce. As regards all awards of alimony, this award may be later modified or terminated upon a showing of a change in circumstances. Lynn v. Lynn, 430 So.2d 363 (La.App. 3rd Cir.1983); writ denied, 434 So.2d 1094 (La.1983).

For the above and foregoing reasons, the judgment of the trial court awarding alimony after divorce in a lump sum of $1800.00 is reversed. It is hereby ordered that there be judgment in favor of defendant-appellant awarding alimony after divorce in the amount of $150.00 per month. In all other respects, the judgment of the trial court is affirmed.

REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.

DOMENGEAUX, J., concurs in the result.

      . We quote the text of Article 160 as amended by Act 293 of 1982. As aforestated, with regard to the criteria used for determining entitlement and amount of alimony, the two versions of the article are substantially identical.


text:
    HARPER OIL FIELD SERVICES, Plaintiff-Appellee, v. Lee DUGAS, et al., Defendants-Appellants.
    No. 83-573.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1984.

      Gibbens & Blackwell, J. Louis Gibbens, New Iberia, for defendants-appellants.
    Privat & Regan, Thomas K. Regan, Crowley, for plaintiff-appellee.
    Jacques Cousin, Louis C. Guillot, New Iberia, for defendant-appellee.
    Before DOMENGEAUX, C.J., and GUI-DRY and DOUCET, JJ.
   GUIDRY, Judge.

Harper Oil Field Services (hereafter Harper), a partnership composed of Robert Coleman and Hillary Cart, filed this suit for tortious conversion of a mud tank, seeking damages for loss of use, embarrassment, humiliation and attorney’s fees. Named as defendants were 4-D Sandblasters, Inc. and its successor corporation, 4-D Corrosive Control Specialists, Inc. (hereafter 4-D); Lee Dugas, the chief executive officer and the principal stockholder of 4-D; Welders Unlimited, Inc. (hereafter Welders); Richard Dautreuil, the chief executive officer and principal shareholder of Welders; and Dresser Industries, Inc., d/b/a Magcobar (hereafter Magcobar).

Dugas and 4-D filed a reconventional demand against Harper for tortious interference with a contract of sale, seeking damages and attorney’s fees. Dugas and 4-D also filed third party demands against Dautreuil and Welders for amounts due on open account.

Magcobar was dismissed from the suit on a motion for summary judgment. That judgment was not appealed and is now final.

After trial on the merits, the trial judge rendered judgment in favor of Harper and against 4-D ordering a return of the mud tank and for damages for loss of use in the principal amount of $1,200.00. Plaintiff’s demands against Lee Dugas and Richard Dautreuil, individually, were dismissed with prejudice. Further, judgment was rendered granting 4-D’s reconventional demand against Welders in the principal amount of $7,533.95. All other demands were ordered dismissed with prejudice. 4-D appeals only the judgment on the main demand. Harper has answered the appeal seeking only an increase in damages.

FACTS

In September of 1980, Robert Coleman and Hillary Cart formed Harper, a partnership, for the purpose of leasing out oil field equipment. Mr. Coleman was employed as a mud engineer in the oil business and learned that Welders had four 1000 gallon capacity pneumatic mud tanks for sale. The four tanks had been specially ordered by a company which subsequently went out of business and was unable to complete the sale. On September 23, 1980, Mr. Coleman, on behalf of Harper, concluded negotiations for the purchase of one of these tanks from Welders and issued a check in the amount of $7,200.00 to Welders. Mr. Coleman was given a dated invoice, marked paid, describing the tank as “one cylindrical 1000 sack capacity mud tank serial # WU-1000-1.” It was understood that the tank required sandblasting and repainting. The invoice recited “terms C.O.D. upon completion F.O.B.”, but it was also agreed that Mr. Coleman could delay picking up the tank indefinitely.

The other three tanks, which were part of the special order, were sold by Welders to a Mr. Ortego of Houma, Louisiana. Welders had contracted with 4-D to sandblast and paint the four cylindrical tanks upon completion of fabrication. The four tanks were delivered to 4-D by Welders in the latter part of September or in October of 1980. At this point we disgress to note that throughout the trial of this matter, 4-D maintained that upon delivery of the tanks to it for sandblasting and painting, Welders failed to indicate that the four tanks had been sold. Subsequent to the delivery of the tanks, 4-D was contacted by Mr. Ortego and three of the tanks were painted green and white to his specifications. Sometime after November 10, 1980, Mr. Ortego picked up the three tanks which were painted green and white. The remaining tank had been previously blasted but was reblasted and repainted solid white.

On December 31, 1980, 4-D’s lease of its business premises terminated. 4-D then moved its facilities and the great majority of its equipment from its former location on Daspit Road to the Port of Iberia. The solid white tank remained at the Daspit Road location until January 26, 1981, at which time it was trucked to 4-D’s facilities at the Port of Iberia. Sometime after the first of the year, Mr. Ortego received a call from Lee Dugas inquiring as to whether the remaining tank was his. Mr. Ortego informed Mr. Dugas that the remaining tank was not his. Mr. Dugas also inquired as to the value of the tank, expressing an interest in selling the tank to satisfy a debt owed by Welders. On January 30, 1981, Richard Dautreuil met with Lee Dugas to settle a problem that 4-D had with Welders’ accounts receivable. Dugas contends that at this meeting, Dautreuil agreed, on behalf of Welders, to transfer ownership of the mud tank in question and four large offshore baskets to 4-D in satisfaction of an outstanding debt of $7,533.95 due by Welders to 4-D.

Subsequently, 4-D began negotiations with Magcobar for the sale of the mud tank. During the negotiations, Mr. Dugas of 4-D informed a Mr. Ray of Magcobar that the tank belonged to Richard Dau-treuil of Welders and that 4-D was selling the equipment with the consent of Dau-treuil to satisfy a debt. The parties agreed on a price and that the tank would be repainted orange and white, the Magcobar flag colors. A check was issued for the stipulated amount through Magcobar’s Houston office and Magcobar took possession of the tank on or about March 14, 1981.

Just prior to that date, Harper had begun negotiations with Frances Drilling Fluids for the lease of the mud tank. The deal was to be consummated upon visual inspection of the tank. Thereafter, on or about March 15,1981, Mr. Coleman went to 4-D in search of the tank. Upon learning that the tank had been repainted the Magcobar flag colors and was no longer in 4-D’s possession, Mr. Coleman and Mr. Cart went to Magcobar in search of the tank. Upon discovering the tank at Magco-bar, Mr. Cart advised Mr. Ray that he believed the tank belonged to Harper. Mr. Ray testified that he was also contacted by Richard Dautreuil who advised him that he had sold that particular tank to Harper. Magcobar thereafter, with 4-D’s consent, returned the tank to 4-D and stopped payment on their check. Mr. Dugas, after regaining possession of the tank, refused to deliver same to Harper. Harper was therefore unable to consummate the rental agreement with Prances Drilling Fluids or to acquire possession of the tank and this suit followed.

In written reasons for judgment, the trial judge made the following findings pertinent to this appeal:

1. The tank in question was the tank purchased by Harper from Welders;
2. 4-D never acquired ownership of the tank; and
3. Plaintiff failed to prove its claims for conversion, inconvenience, distress and attorney’s fees.

Based upon the aforestated findings, the trial court concluded that substantial justice would be effected between the parties by ordering a return of the tank by 4-D to Harper with an allowance of damages to Harper for the loss of use of the tank at the rate of $10.00 per day for a period of 120 days.

LIABILITY OF 4-D

On appeal, 4-D makes the following assignments of error:

1. The trial judge erred in finding that the tank possessed by 4-D was the tank which Harper purchased from Welders.
2. The trial judge erred in failing to find that 4-D acquired ownership of the tank in question.
3. The trial judge erred in awarding loss of use damages to Harper.

After carefully reviewing the record, we concur with the finding of the trial judge that a preponderance of the evidence supports the conclusion that the tank in the possession of 4-D is the same tank which Harper purchased from Welders. On this issue, 4-D relies on the absence of a serial number on the tank in its possession because the invoice given to Harper in receipt for payment, identified the tank purchased by serial number. For the following reasons, we do not' find the absence of a serial number to be dispositive of the issue of identification. The record establishes that four tanks were built by Welders to specifications, sufficiently uncharacteristic in the industry to allow for identification. All four tanks were fabricated pursuant to certain schematic drawings which were provided to Harper by Welders in conjunction with the sale. These drawings are made a part of the record. All four tanks were delivered by Welders to 4-D. These four tanks were the only mud tanks which 4-D was doing work on at the time. Three of the tanks were subsequently picked up by Mr. Orte-go. These three tanks bear consecutive serial numbers 0002, 0003 and 0004. Harper’s tank is identified on the invoice by serial number 0001. The record indicates that the tank sold to Harper was the first tank on which fabrication was completed and the only tank which required sandblasting and repainting. The most likely explanation is that the serial number was either never put on the tank or else subsequently removed in the sandblasting process.

We further find no clear error in the trial court’s finding that 4-D failed to show that it ever acquired ownership of the tank in question. In written reasons for judgment, the trial judge stated as follows:

“The only evidence of the claimed transfer of title to the tank to Dugas/4-D comes from Dugas himself. This is refuted by the statement made by Dau-treuil himself to Ernest Ray of Magco-bar.”

Richard Dautreuil was apparently unavailable to testify at trial. Therefore, the only evidence introduced at trial of the alleged transfer of ownership of the tank to 4-D is found in the self-serving testimony of Lee Dugas. Because of the trial judge’s ability to see and hear the witnesses, great weight is accorded his evaluation of credibility. We are unable to say that the trial judge’s evaluation of the evidence was clearly wrong. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

In addition, we observe that 4-D’s contention that Magcobar was a good faith transferee for fair value is not material to this case. The purported transfer of the tank by 4-D to Magcobar was rescinded by consent of the two parties and Magcobar’s possession or ownership is not at issue.

4-D’s third assignment of error presents multiple questions. Although the trial judge stated in written reasons for judgment that plaintiff failed to prove its claim for. conversion, he nonetheless awarded damages to plaintiff for loss of use. The trial court’s written reasons are silent as to the basis for this award. On appeal, 4-D contends that an award of damages was improper where defendants acted reasonably, prudently, and in good faith. 4-D’s additional contention that the evidence supporting an award for loss of use is at best equivocal, will be considered later in connection with Harper’s request for an increase in damages.

There was no contractual or deposit relationship between Harper and 4-D. As owner, Harper is entitled only to judgment recognizing his ownership and ordering delivery of the tank to him (LSA-C.C. Art. 526), unless he can show some other basis for 4-D’s liability for damages.

For the reasons which follow, we conclude that 4-D is liable in damages to plaintiff for tortious conversion of the tank in question and the trial court erred in finding otherwise.

The common law tort of conversion has long been recognized in Louisiana as actionable under LSA-C.C. Art. 2315. Central Fidelity Bank v. Gray, 422 So.2d 670 (La.App. 3rd Cir.1982). Conversion has been defined as “a distinct act of dominion wrongfully exerted over another’s property in denial of or inconsistent with the owner’s rights therein.” Lincecum v. Smith, 287 So.2d 625 (La.App.3rd Cir.1973), writ refused, 290 So.2d 904 (La.1974) and authorities cited therein. 4-D’s attempted sale to Magcobar and subsequent refusal to accede to plaintiff’s demand that the mud tank be returned were wrongful acts of dominion inconsistent with Harper’s rights therein.

There is no requirement in our jurisprudence, as the trial judge seems to conclude, that the act of dominion to constitute a tortious conversion be that of a depositary.

4-D’s contention that it acted prudently and in good faith is of no avail. In Lincecum v. Smith, supra, at 628, we cited with approval on this point Prosser’s Handbook of the Law of Torts 83-4 (3rd Ed. 1964):

“The intent required is not necessarily a matter of conscious wrongdoing. It is rather an intent to exercise a dominion or control over the goods which is in fact inconsistent with the plaintiff’s rights ... Persons ... exercise acts of ownership over them at their peril, and must take the risk that there is no lawful justification for their acts.”

4-D’s final contention in brief that its continued possession (if not the attempted sale) of the mud tank was not wrongful or inconsistent with Harper’s rights therein, but was rather a legal detention pursuant to LSA-C.C. Arts. 527, 528 and 529, or pursuant to LSA-R.S. 9:4501 or 9:4502 is also without merit.

We first note that the aforestated justifications for retention are apparently afterthoughts as 4-D has always opposed Harper’s ownership by asserting its own ownership of the tank in question. Additionally, the record does not factually support any rights in 4-D under LSA-C.C. Arts. 527, 528 and 529. There is no indication that either necessary or useful expenses were incurred by 4-D or that any demand was ever made for same. The record also reflects that 4-D was paid $3,816.59 by Welders for the work done on the four tanks. The testimony of Lee Du-gas that approximately $156.00 was due for touch-up blasting and coating on the tank in question was objected to as enlarging the pleadings and we think properly sustained. In any event, we do not consider that LSA-R.S. 9:4501 or 9:4502 gives the repairman the right to reclaim or retain possession by self help. His proper remedy is to assert his privilege through legal machinery during the statutory period. See Martinez v. Therma-King Sales and Service Division of Transport Refrigeration of La., Inc., 346 So.2d 798 (La.App. 1st Cir.1977); Miller v. Harvey, 408 So.2d 946 (La.App.2nd Cir.1981).

DAMAGES

Harper has answered the appeal asking for damages for additional loss of use and for mental anguish and humiliation.

The function of an appellate court in reviewing a damage award is not to decide what it considers an appropriate award on the basis of the evidence, but rather only to review the exercise of the trier of fact’s discretion. Kalmn, Inc. v. Empiragas Corp., 406 So.2d 276 (La.App. 3rd Cir.1981), LSA-C.C. Art. 1934(3). Thus this review of the trial court’s award of $1,200.00 for the loss of use of the mud tank is limited to a determination of whether or not the trial court abused its much discretion.

Though trial judges are granted great discretion in determining damage awards, the awards made must be in accordance with law. Cenac v. Duplantis Moving & Storage Company, Inc., 407 So.2d 424 (La.App. 1st Cir.1981). In Louisiana, the primary objective for awarding damages is to place the injured party in as near a fashion as possible to the state in existence at the time immediately preceding the injury. Roshong v. Travelers Insurance Company, 281 So.2d 785 (La.App. 3rd Cir.1973).

The trial judge based his award of loss of use damages on the testimony of Mr. Ray of Magcobar. In so doing, he stated that the court placed great credence in Mr. Ray’s testimony as that of an unbiased and truthful third party.

The testimony of Mr. Ray relied on by the trial judge is as follows:

“Q. If you had a tank like this one that you have already described to us today that is in dispute, what would you earn for that tank today on a daily basis if you had work for it?
A. Well, we don’t rent these tanks. They’re put on a location free of charge so that the material we sell can be stored in them. I’m not familiar with any rent on these tanks. We were offered tanks a good while back for $10.00 a day each, there were three on the job, and they didn’t do it because they had to get a dragline out for something else and they got our tank out from in back of the rig before the rig was moved to go to another location.”

In contrast, plaintiff presented the testimony of Mr. Jim Walker, a representative of Frances Drilling. The uncontroverted testimony of Mr. Walker indicates that Harper had secured an arrangement with Frances for the rental of the mud tank and that the arrangement fell through only because of 4-D’s continued possession of the tank. Mr. Walker testified that he had entered into an agreement with Mr. Coleman concerning the tank in question at the rate of $50.00 per day or $2,000.00 per month and that said rental would have been for three months until such time as Frances Drilling could obtain its own tank or arrange for a sale from Harper. Mr. Walker testified that at the time these tanks were in great demand and there was a three month backlog in order to obtain such a tank. Mr. Walker went on to testify that his company would have paid in excess of $9,000.00 for such a tank if one could have been obtained and was willing to pay the sum of $50.00 per day or $2,000.00 per month if the aforementioned deal could have been consummated.

4-D’s contention that this testimony is equivocal because the deal was, in fact, never consummated is without merit. The uncontroverted testimony of Mr. Walker is that the only reason that the lease was not consummated was that Harper was unable to obtain possession of the tank.

We conclude that the trial court abused its discretion in basing its calculations on the testimony of Mr. Ernest Ray. Despite the judge’s reliance on Mr. Ray’s credibility, the clear import of Mr. Ray’s testimony -is that he was unfamiliar with the rental of such tanks. His one experience is in no way related to the fair market value of rentals at the time in question. The actual loss to plaintiff was the $50.00 per day rate which Frances Drilling was ready, willing and able to pay. We therefore consider that an award of $50.00 a day for a period of 120 days will adequately compensate plaintiff.

The trial judge denied damages for mental anguish and humiliation finding no evidence to support plaintiff’s claims for conversion or mental anguish. In Lincecum v. Smith, supra, at 629, we stated:

“we agree that when it is found that a taking is ‘wrongful and without the consent of the plaintiff, some humiliation, embarrassment and inconvenience follows.’ Steadman v. Action Finance Corp., 197 So.2d 424 (La.App.2nd Cir. 1967).”

In the present case, after having agreed to lease the mud tank to Frances Drilling, Harper was unable to deliver the tank due to 4-D’s wrongful possession. Harper was a new company which was unable to get its business established once it was deprived of its only source of income. “Under our jurisprudence a party aggrieved by a wrongful seizure is entitled to recover not only the special damages caused him, but also general damages for mortification, humiliation and mental worry caused by the intentional violation of his property rights.” Mid-State Homes, Inc. v. Lartigue, 383 So.2d 99 (La.App. 3rd Cir. 1980).

Our examination of the circumstances surrounding this conversion indicates that an award of $500.00 for mental anguish and humiliation would be adequate and proper.

The trial court assessed costs equally against both parties. Costs are to be assessed in accord with equity. LSA-C. C.P. Arts. 1920 and 2164. The trial court rejected every element of defendants’ re-conventional demand and on appeal, we reverse the judgment of the trial court to find defendants liable for tortious conversion. For these reasons, we find that defendants should bear all costs in both the trial and appellate courts.

For the above and foregoing reasons, the fourth paragraph of the judgment of the trial court is amended to read as follows:

“It is ordered, adjudged and decreed that there be judgment herein in favor of Harper Oil Field Services and against 4-D Sandblasting, Inc. and 4-D Corrosion Control Specialist, Inc. in the amount of $6,500.00, together with legal interest thereon from date of judicial demand until paid.”

The seventh paragraph of the judgment of the trial court is amended to read as follows:

“... ordered, adjudged and decreed that all costs shall be paid by 4-D Sandblasting, Inc. and 4-D Corrosion Control Specialist, Inc.”

In all other respects the judgment of the trial court is affirmed. Defendants, 4-D Sandblasting, Inc. and 4-D Corrosion Control Specialist, Inc. are cast for all costs of this appeal.

AFFIRMED AS AMENDED.

      . In so noting, we do not consider whether LSA-C.C. Art. 520, 1979 La.Acts, No. 180 § 1 (effective January 1, 1980), suspended in 1980, La.S.Con.Res. No. 172, 6th Reg.Sess. (1980); repealed by 1981 La.Acts No. 125 § 1, was in effect at the time of the purported transfer.

       Art. 527. Necessary expenses. The evicted possessor, whether in good or in bad faith, is entitled to recover from the owner compensation for necessary expenses incurred for the preservation of the thing and for the discharge of private or public burdens. He is not entitled to recover expenses for ordinary maintenance or repairs.
      Art. 528. Useful expenses. An evicted possessor in good faith is entitled to recover from the owner his useful expenses to the extent that they have enhanced the value of the thing.
      Art. 529. Right of retention. The possessor, whether in good or in bad faith, may retain possession of the thing until he is reimbursed for expenses and improvements which he is entitled to claim.

      . LSA-R.S. 9:4501 and 9:4502, both subsequently amended by Acts 1983, No. 359, § 1, provide privileges on machinery in favor of those fabricating or repairing such machinery for labor and parts.


text:
    L.D. JOHNSON, Plaintiff-Appellant, v. The STATE of Louisiana, Through the DEPARTMENT OF PUBLIC SAFETY, the State Police, et al., Defendants-Appellees.
    No. 83-601.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1984.
    Rehearing Denied June 14, 1984.

      Antoon & Dalrymple, Joseph T. Dalrym-ple, Alexandria, for plaintiff-appellant.
    Gold, Little, Simon, Weems & Bruser, Henry B. Bruser, III, Alexandria, for defendants-appellees.
    Before DOMENGEAUX, GUIDRY and DOUCET, JJ. .
   GUIDRY, Judge.

The plaintiff, L.D. Johnson, brought this suit seeking damages for false imprisonment. Made defendants were the State of Louisiana, through the Department of Public Safety, Division of State Police (hereafter State Police), the arresting officer, Trooper Wilbert Sanders, and the Sheriff of Rapides Parish, Louisiana, Marshall T. Cappel. The plaintiff reached a settlement with Cappel, and voluntarily dismissed him from the suit. The matter proceeded to trial against the remaining defendants. The trial court rendered judgment in favor of the defendants, and the plaintiff appeals.

On April 14, 1981, the plaintiff, L.D. Johnson, was driving a tractor-trailer rig in Rapides Parish when he was stopped and ticketed for speeding by Trooper Wilbert Sanders. Sanders called in the plaintiffs drivers license number and requested a check on his driving record as well as a N.C.I.C. (National Crime Information Center) cheek. William Godron, communications supervisor for State Police Troop E, entered the plaintiffs drivers license number into the computer and received the plaintiffs driving record. Godron then ran the N.C.I.C. check by entering the plaintiffs name, date of birth, race and sex into the computer. Godron received a printout from the N.C.I.C. stating that a Leonard Johnson, Jr. was wanted by authorities in Bell County, Texas on charges of aggravated prostitution. The printout further advised that Leonard Johnson, Jr. was to be considered armed and dangerous. The physical description of the plaintiff on his driving record was similar to the physical description of Leonard Johnson, Jr. provided by the N.C.I.C. The date of birth, May 22, 1943, was identical. Godron advised Trooper Sanders to stand by to await the arrival of another trooper who was being sent to the scene.

Trooper Herbert Cross arrived at the scene minutes later with the N.C.I.C. printout and advised Sanders that the plaintiff was wanted in Texas and was considered armed and dangerous. Sanders observed similarities between the plaintiff and the description on the printout of Leonard Johnson, Jr. After making further inquiries, Sanders arrested the plaintiff and transported him to the State Police Troop E headquarters. The plaintiff was then taken to the Rapides Parish Sheriffs Office where he was fingerprinted and booked on a fugitive warrant from Bell County, Texas.

On April 20, 1981, after the plaintiff had spent six days in jail (including Easter weekend), Rapides Parish authorities received photographs and fingerprints of Leonard Johnson, Jr. They revealed that the plaintiff was not the wanted fugitive. The plaintiff was thereupon released.

On appeal, the plaintiff asserts that the trial court erred in finding that Trooper Sanders acted with probable cause in arresting the plaintiff. Further, the plaintiff asserts that the trial court erred in finding no negligence on the part of the State Police in failing to follow up on the arrest of the plaintiff in order to confirm his identity.

False imprisonment occurs when one is arrested and restrained against his will by another who acts without a warrant or other statutory authority. It is restraint without color of legal authority. Kyle v. City of New Orleans, 353 So.2d 969 (La.1977); Richard v. State, through Department of Public Safety, 436 So.2d 1265 (La.App. 1st Cir.1983), writ denied, 441 So.2d 1223 (La.1983). If a police officer acts pursuant to statutory authority in arresting and incarcerating a citizen, there is no false arrest or imprisonment. Kyle v. City of New Orleans, supra.

In the instant case, the authority for arresting the plaintiff is derived from LSA-C.Cr.P. Art. 213, which provides in pertinent part:

“A peace office may, without a warrant, arrest a person when:
(3) The peace officer has reasonable cause to believe that the person to be arrested has committed an offense, although not in the presence of the officer; or
(4) The peace officer has received positive and reliable information that another peace officer from this state holds an arrest warrant, or a peace officer of another state or the United States holds an arrest warrant for a felony offense.”

In the instant case, Trooper Sanders had reasonable cause (provided by the N.C.I.C. printout) to believe that an offense had been committed. LSA-C.Cr.P. Art. 213(3), supra. The printout also provided Sanders with positive and reliable information that an arrest warrant from the State of Texas was outstanding on Leonard Johnson, Jr., LSA-C.Cr.P. Art. 213(4). The determinative inquiry thus becomes whether Sanders had reasonable cause to believe that the man he had stopped for speeding was in fact Leonard Johnson, Jr.

The N.C.I.C. printout available to Trooper Sanders at the time of the arrest showed that Leonard Johnson, Jr. was a black male, 5' 8" tall, weighing 174 pounds, with brown eyes, black hair, and dark skin. It further showed that Leonard Johnson, Jr. had scars on the forehead, face, each arm, right leg, right foot, and near the left eye. The printout also showed that Leonard Johnson, Jr. was born on May 22, 1943.

The plaintiff, L.D. Johnson, is a black male, 5' 10" tall, weighing 180 pounds. The plaintiff’s height and weight were not recorded on his drivers license, however, since the license was a temporary permit. The license did show L.D. Johnson’s date of birth, May 22, 1943. Sanders noted a small scar over the plaintiff’s left eye. Upon further inquiry, Sanders learned that the plaintiff had formerly lived in Texas. At this point, the plaintiff was arrested and taken to Troop E headquarters. Upon arrival there, Sanders observed a scar on one of the plaintiff’s arms. The plaintiff was then taken to the Rapides Parish Sheriff’s Office, where he was instructed to lower his pants. Sanders discovered a scar on one of the plaintiff’s legs. At this point the plaintiff was fingerprinted and booked. The plaintiff at all times denied being Leonard Johnson, Jr.

Reasonable cause to believe the person arrested has committed an offense exists when the facts and circumstances within the arresting officer’s knowledge, and of which he has reasonable trustworthy information, are sufficient to justify an average man of caution in the belief that the person to be arrested has committed or is committing an offense. Richard v. State, through Department of Public Safety, supra; State v. Phillips, 347 So.2d 206 (La.1977). Whether reasonable cause exists is in the first instance a substantive determination to be made by the trial judge from the facts and circumstances of the case. State v. Drew, 360 So.2d 500 (La.1978).

We find no error in the trial court’s conclusion that reasonable cause to arrest the plaintiff existed. Beside the similarity in the names of the two men, the record shows that the plaintiff and the fugitive, Leonard Johnson, Jr., share common physical characteristics. These similarities, coupled with the fact that the birth dates matched exactly, would lead a police officer of average caution to believe that the plaintiff was Leonard Johnson, Jr. We find that Trooper Sanders had reasonable cause to arrest the plaintiff.

Although we find that the arrest of the plaintiff was lawful, the record in the instant case raises a serious question as to whether the plaintiffs incarceration for six days as a result of a mistaken identification constituted a false imprisonment. The plaintiff contends that the State Police Officers involved in the plaintiffs arrest were negligent in failing to confirm the plaintiffs identity, resulting in the lengthy imprisonment.

The record shows that when the plaintiff was taken to the Rapides Parish Sheriffs Office, he was fingerprinted, photographed, and booked by Sheriffs Office personnel. Trooper Sanders testified that once the plaintiff was turned over to the Sheriff, his responsibility as the arresting officer was at an end. He stated that any further investigation into the identity of the plaintiff was the responsibility of the Sheriff. This testimony is corroborated by that of Walter Reynolds, the chief deputy of the Rapides Parish Sheriffs Office. Reynolds gave a detailed description of the procedure by which the Sheriffs Office extradites prisoners wanted in other states. The process includes the exchange of photographs and fingerprints between the law enforcement agencies to confirm the identity of the wanted suspect. Further, the record reflects that subsequent to the incarceration of the plaintiff in the Rapides Parish Jail, all further investigation into the identity of the plaintiff was conducted by personnel of the Rapides Parish Sheriffs Office.

LSA-C.Cr.P. Art. 229 provides:

“The officer in charge of the jail or police station shall immediately inform the prisoner booked:
(1)Of the charge against him;
(2) Of his rights to communicate with and procure counsel; and
(3) Of his right to request a preliminary examination when he is charged with a felony.
The officer in charge shall, within forty-eight hours from the time of the booking, notify the district attorney in writing of all persons booked for violation of state statutes, and shall furnish without cost a certified copy of any booking entry to any person requesting it.”

LSA-C.Cr.P. Art. 230.1 provides:

“A. The sheriff having custody of an arrested person shall bring him promptly, and in any case within seventy-two hours from the time of the arrest, before a judge for the purpose of appointment of counsel. Saturdays, Sundays, and legal holidays shall be excluded in computing the seventy-two hour period referred to herein.
B. At this appearance, if a defendant has the right to have the court appoint counsel to defend him, the court shall assign counsel to the defendant. The court may also, in its discretion, determine or review a prior determination of the amount of bail.
C. If the arrested person is not brought before a judge in accordance with the provisions of Paragraph A of this Article, he shall be released forthwith.
D. The failure of the sheriff to comply with the requirements herein shall have no effect whatsoever upon the validity of the proceedings thereafter against the defendant.”

The State Police Law, LSA-R.S. 40:1371 et seq., regulates the Division of State Police. LSA-R.S. 40:1383 provides:

“Any police employee of the division, in executing any warrant of arrest issued by any magistrate of the state or in making any other' arrest, shall, immediately after the arrest, place the person arrested in the parish jail of the parish in which the arrest was made.
Whoever wilfully violates this Section shall be fined not more than twenty-five dollars or imprisoned for not more than thirty days, or both.”

LSA-R.S. 40:1384 provides:

“Any person having charge of a jail or other place of detention shall, provided sufficient facilities are available, receive any prisoner arrested by a police employee of the division and shall detain him in custody until otherwise ordered by a court, by the department, or by the police employee from whom the prisoner was received.
Whoever violates this Section shall be fined not more than twenty-five dollars or imprisoned for not more than thirty days, or both.”

The foregoing provisions, together with the evidence adduced at trial, lead us to conclude that when plaintiff was arrested by Trooper Sanders as a wanted fugitive and transferred to the Rapides Parish Jail, the custody of the plaintiff as well as the responsibility for further investigation shifted to the Sheriffs Office. This conclusion appears to be in accord with both the legislative scheme of LSA-C.Cr.P. Arts. 229, 230.1 and LSA-R.S. 40:1371 et seq. and established custom. The trial court reached a like conclusion. Therefore, we find that if the detention of the plaintiff for a six day period without more positive identification constituted a false imprisonment, the responsibility for the delay lies with the Rapides Parish Sheriffs Department.

We observe that our decision is in accord with common law authorities which, while not binding us, provide persuasive support. In Alvarez v. Reynolds, 181 N.E.2d 616, 35 Ill.App.2d 54 (1962), the plaintiff was suspected of armed robbery and arrested by the defendant police officers. The plaintiff was then turned over to investigating detectives. Two days later, the plaintiff was released after establishing an alibi and passing a lie detector test. The court found that the arresting officers had probable cause to arrest the plaintiff, but that once the plaintiff was turned over to investigating detectives, their responsibility was at an end. Thus, the arresting officers could not be held liable for the lengthy imprisonment.

In the case of Plancich v. Williamson, 57 Wash.2d 367, 357 P.2d 693 (1963), officers of the Olympia police department received a complaint from an elderly man that the man’s son, armed with two guns, had threatened to kill him. The officers went to the man’s home and arrested his son. The arrested man was booked for investigation into his sanity. After being confined for thirteen hours in the city jail and fifty-two hours in the county jail, he was examined by a doctor who pronounced him sane, whereupon he was released without any formal charges being filed. He brought suit for false imprisonment against the arresting officers. The court found that the arresting officers had reasonable cause to arrest the plaintiff. The court refused to place the responsibility for the inordinate delay in releasing the plaintiff on the arresting officers. The court stated:

“It should be mentioned that in the afternoon, at about two o’clock p.m., following his arrest, respondent was transferred to the Thurston County jail where he was held for two days and then released. If, contrary to the conclusion we have reached, the arrest had been wrongful, perhaps the arresting officers would be liable for all damages suffered by the lengthy duration of imprisonment. 4 Am.Jur., Arrest, § 121. However, as we have already stated, we think the arrest was made on reasonable grounds. Liability cannot attach solely because of the obviously, unduly long detention. There must be some basis for placing the responsibility for the long detention, at least to some degree, on the appellant officers. The only finding by the trial court in this respect was that “plaintiff was deprived of his liberty by reason of his arrest by defendants for a period of three days without due process of law * * This finding or conclusion does not place clearly on the appellants any responsibility for the period Louis actually was confined and in the custody of the county authorities. So far as the findings and the record show, appellants’ responsibility with regard to respondent’s arrest terminated when he was turned over to the county authorities for a mental examination.”

We find the foregoing reasoning sound. The record in the instant case indicates that further investigation into the plaintiff’s identity was the responsibility of the Rapides Parish Sheriff’s Office. Any undue delay in confirming the identity of the plaintiff was not the responsibility of the State Police.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs are assessed to plaintiff-appellant.

AFFIRMED.

DOUCET, J., dissents.


author: KNOLL, Judge.

text:
    Stephen H. YOUNG, Plaintiff-Appellant, v. HERCULES, INC., Defendant-Appellee.
    No. 83-642.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1984.

      Ryder & Deshotles, Alfred Ray Ryder, Oberlin, for plaintiff-appellant.
    Jones, Tete, Nolen, Hanchey, Swift & Spears, Hunter W. Lundy, Lake Charles, for defendant-appellee.
    Before CUTRER, STOKER and KNOLL, JJ.
   KNOLL, Judge.

Plaintiff, Stephen Young, filed suit against the defendant, Hercules, Incorporated, seeking worker’s compensation benefits. The trial court rendered judgment in favor of Hercules, Incorporated. Young brings this appeal, raising the following issues:

(1) Whether the trial court erred in finding that plaintiff had failed to prove that he sustained a disability compen-sable under the Louisiana Workmen’s Compensation Law.
(2) Whether the trial court erred in not finding defendant liable for certain medical and travel expenses incurred by plaintiff in connection with his treatment as a result of the accident of December, 1981.
(3) Whether the trial court erred in not finding defendant liable for attorney’s fees and penalties for its failure to pay medical and travel expenses.

FACTS

Young commenced his employment with Hercules in October, 1980 on a temporary basis. On December 18, 1980, Young, who is left-handed, injured his left ring finger while working as a carpenter for Hercules. An eight foot piece of two inch steel pipe was being removed from scaffolding when it fell seven feet striking and fracturing the tip of Young’s finger from the outermost joint to the nail. Young immediately reported the accident to the first aid station and was treated by the company doctor, Dr. Boyd Woodward, who placed Young’s finger in a splint.

Young convalesced at home for two weeks and received his full salary. He returned to light duty work on December 30, 1980, again receiving his full salary. Dr. Woodward released him to full duty work effective February 2, 1981. Hercules terminated plaintiff’s temporary employment on February 13, 1981 because of company policy not to hire persons on a full-time basis who had a relative already employed with the company.

Young’s employment with Hercules extended from October 1980 to February 1981. He was then employed from February 1981 to May 1981 as a carpenter for F. Miller & Sons, and then as a carpenter-pile driver for Raymond International from June 1981 to August 1981. On August 4, 1981 Young injured his back and neck while working for Raymond International and has not worked since. He underwent neck surgery in the Fall of 1981. Young has filed a workmen’s compensation suit for the injury he received while employed by Raymond International and for which he is receiving workmen’s compensation benefits.

On December 11, 1982 Young brought suit against Hercules asking for workmen’s compensation benefits. After a trial on the merits, the trial court determined that Young had not suffered a disabling injury and was not entitled to workmen’s compensation benefits.

DISABILITY

On appellate review, the trial court’s factual findings concerning work-related disability should be accorded great weight and should not be disturbed where the evidence before the trial court supports a reasonable factual basis for its findings, unless clearly wrong. Culp v. Belden Corp., 432 So.2d 847 (La.1983); Johnson v. Insurance Co. of North America, 440 So.2d 1385 (La.App. 3rd Cir.1983); Crump v. Hartford Accident & Indemnity Company, 367 So.2d 300 (La.1979). After a careful review of the record, we find the trial court’s decision on disability was correct and supported by a reasonable factual basis.

The plaintiff in a workmen’s compensation case bears the burden of proving the nature and extent of his disability by a preponderance of the evidence. Elie v. St. Paul Fire & Marine Ins., Co., 408 So.2d 297 (La.App. 3rd Cir. 1981); Johnson, supra.

An employee is not considered disabled within the meaning of the worker’s compensation law solely because he suffers some residual pain or discomfort when working. Brisco v. Board of Elementary and Secondary Education, 422 So.2d 667 (La.App. 3rd Cir.1982), writ denied 429 So.2d 154 (La.1983). A worker is totally and permanently disabled only if he works in substantial pain. Lemoine v. Employers Casualty Co., 378 So.2d 594 (La.App. 3rd Cir.1979), writ denied 380 So.2d 101 (La.1980). In order for a worker to be considered disabled due to pain, the pain accompanying routine physical tasks and attempts to return to work must be substantial, serious, intense and/or severe. Culp, supra.

Dr. Woodward, the original treating physician, initially took x-rays which showed Young had suffered a fracture of the ungual tuft of the left ring finger and placed it in a splint. He released Young to light duty work on December 30, 1980 and to full duty on February 2, 1981.

Dr. Earl R. Stagg, an associate of Dr. Woodward, saw Young on two occasions. On January 15, 1981 he diagnosed Young’s condition to be a subungual hematoma. He last saw Young on January 23, 1981 and was of the opinion that Young could probably return to normal duties in one more week.

On January 22, 1981 Young consulted Dr. George P. Schneider, an orthopedic surgeon. He saw Young only once. He testified that Young was unable to perform carpentry work on that date, but it was his opinion that he would have released Young to full duty in another four to eight weeks. He further testified that contusing injuries, in the proximity of the nail bed can cause secondary changes which later lead to deformity of the nail which could require nail removal. His in-court examination revealed a nail deformity which would require symptomatically treating the nail or removing it surgically. He felt that with a careful trimming of the nail, Young could do carpentry work as of the date of trial.

Dr. Robert Dale Bernauer, another orthopedic specialist, examined and treated Young on November 3,1981. His examination revealed that the original fracture had healed well, but the crushed finger had developed a deformed split fingernail with a portion of the nail growing to the side. Young’s split fingernail was painful, catching on things and it was not attached to the main body of the nail. He did a block to numb his finger and removed the abnormal nail. Finally he cauterized the nail bed with a chemical to try to keep the abnormal nail from growing back and allow the skin of the finger to grow over the normal nail.

Dr. Bernauer’s examination of February 16,1982 revealed an abnormal nail growing out of the finger again. Dr. Bernauer was of the opinion that Young needed the entire nail and the nail bed removed, as well as an amputation of one-half inch of the bone with the skin pulled over the end oblating the nail bed completely. Dr. Bernauer did not expect Young to suffer severe pain. Dr. Bernauer also gave Young an in-court examination.

We find that the pain Young experiences is not substantial nor is it disabling. Young was not disabled when he returned to regular work for Hercules, F. Miller & Sons, and Raymond International. Young did not establish by a preponderance of the evidence that he was suffering substantial disabling pain and is not therefore, entitled to workmen’s compensation disability benefits.

MEDICAL AND TRAVEL EXPENSES

Young contends that Hercules is liable for his medical expenses incurred for examination and treatment by Dr. Schneider and Dr. Bernauer.

The right to medical expenses is separate and distinct from the right to compensation. Therefore an employee may recover medical expenses even though there is no recovery for compensation. Butts v. Insurance Co. of North America, 352 So.2d 745 (La.App. 3rd Cir.1977), writ denied 354 So.2d 206 (La.1978).

Young was examined by Dr. Schneider, an orthopedist, on January 22, 1981 who found ecchymosis under the nail as well as sensitivity of the finger to cold; the end of the finger was puffy; the fracture was not healed; and, there were soft tissue changes at the end of the finger. On November 3, 1981 Dr. Bernauer, another orthopedic specialist, found that the crushed finger had developed a deformed nail which resulted in him performing surgery to remove the nail. His examination of Young on February 16, 1982 again revealed an abnormal nail growing out of the finger which will require additional surgery.

The record shows that the medical charges for Young’s finger injury while employed by Hercules on December 18, 1981 was $220 for Dr. Schneider and $75 for Dr. Bernauer. The employer, Hercules, has a duty to furnish medical expenses to the injured employee, Young. LSA-R.S. 23:1203. Comeaux v. Cameron Offshore Services, Inc., 420 So.2d 1209 (La.App. 3rd Cir.1982). We therefore award Young medical expenses totaling $295.

Young also contends that he is entitled to travel expenses for round trips from his home in Mittie, Louisiana to Lake Charles of one hundred forty miles for two trips to see Dr. Woodward while he was off work, one trip to see Dr. Schneider and three trips to see Dr. Bernauer, for a total of eight hundred forty miles which were driven in his own vehicle. The employer has a duty to furnish actual travel expenses reasonably and necessarily incurred by the employee for medical treatment. LSA-R.S. 23:1203; McElhaney v. Belden Corp., 376 So.2d 539 (La.App. 3rd Cir. 1979).

Plaintiff sought the medical treatment of Dr. Schneider and Dr. Bernauer because of the finger injury he received while working for Hercules. Accordingly, we award Young travel expenses for medical treatment at the rate of 16$ per mile for 840 miles for a total of $134.40. See McE-lhaney, supra.

We therefore, find that the trial court erred in denying recovery to Young for medical and travel expenses. Further, even though medical expenses should not be included in an award for workmen’s compensation benefits, the right to claim medical and travel expenses is reserved to Young and need not specifically be reserved in the judgment. Milligan v. Bayou Vista Manor, Inc., 355 So.2d 569 (La. App. 3rd Cir.1978); Deshotels v. Fidelity & Casualty Company of New York, 324 So.2d 895 (La.App. 3rd Cir.1975), writ denied 328 So.2d 376 (La.1976).

ATTORNEY’S FEES

Young contends that Hercules is liable for penalties and attorney’s fees provided by LSA-R.S. 23:1201.2 for arbitrarily and capriciously failing to pay the medical and travel expenses. Young was paid full wages for the work he missed and for the light duty work he performed for one month. He was then discharged and released by Dr. Woodward to return to full duties as a carpenter. He worked as a carpenter until he suffered another work related accident on August 4, 1981 while employed by Raymond International, and is receiving worker’s compensation benefits. We find that Hercules was not arbitrary and capricious. Hercules relied upon the advice of the treating physician, Dr. Woodward, that Young could return to work. Addison v. Neeb Kearney & Company, 252 So.2d 471 (La.App. 4th Cir.1971); Kirkley v. DSI Transports, Inc., 416 So.2d 584 (La.App. 1st Cir.1982). We therefore, affirm the trial court’s decision denying penalties and attorney’s fees.

For the foregoing reasons we affirm the trial court’s decision in part, reverse in part and render. Judgment is hereby recast as follows:

1. In favor of Hercules, Incorporated and against Stephen H. Young denying weekly worker’s compensation benefits for failing to establish a compensible disability.
2. In favor of Stephen H. Young and against Hercules, Incorporated awarding medical expenses for Dr. Schneider in the sum of $220 and Dr. Bernauer in the sum of $75 as well as medical travel expenses to Stephen H. Young in the sum of $134.40.
3. In favor of Hercules, Incorporated and against Stephen H. Young denying his claim for penalties and attorney’s fees.
4. All costs of the trial court and the court of appeal are assessed to Hercules, Incorporated.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.


author: FORET, Judge.

text:
    MASHBURN AGENCY, INC., Plaintiff-Appellee, v. UNIVERSAL ENGINEERING & SUPPLY, INC., et al., Defendant-Appellant.
    No. 83-661.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1984.

      Collings & Collings, R. William Collings, Lake Charles, for defendant-appellant.
    Roger C. Burgess, Sulphur, for plaintiff-appellee.
    Before FORET, LABORDE and YEL-YERTON, JJ.
   FORET, Judge.

This suit was filed by plaintiff, Mashburn Agency, Inc., against defendant, Universal Engineering & Supply, Inc., to recover premiums allegedly owed on two insurance policies. Defendant answered with a general denial and filed a reconventional demand. The trial court rendered judgment in favor of plaintiff on the main demand and in favor of defendant on its reconven-tional demand. Defendant has appealed the court’s judgment on the main demand.

The sole issue on appeal is whether the trial court erred in holding that defendant’s contention that an error had been made in computing the premiums due was an affirmative defense which defendant was precluded from raising at trial over plaintiffs objection because it had not specifically plead it in its answer.

FACTS

A general liability policy issued by Northwest Insurance Company and written through Mid-Continental Underwriters was obtained by defendant, Universal Engineering '& Supply, Inc., from plaintiff, Mash-burn Agency, Inc. Defendant paid an initial deposit and the final premium was to be determined by audit of its receipts and payroll at the end of the policy period. The premium was to be based on plaintiff’s receipts and payroll attributable to the territorial area covered by the policy. The policy period was April 15, 1979 through April 15, 1980. Plaintiff led defendant to believe that the policy covered defendant’s operation in both Louisiana and Texas, but, at its inception, the policy was limited to Louisiana only. On November 28, 1979, following the disallowal of a claim made by defendant for an accident that had taken place in Texas, the policy was amended to include Texas.

Defendant purchased another general liability policy from plaintiff to cover its operations from April 15, 1980, through April 15, 1981. Although plaintiff also sued on this policy, defendant does not seriously contest the amount alleged to be owing on the second policy.

At the trial of this matter, defendant attempted to introduce evidence to show that the premiums on the first policy had been computed using both Louisiana and Texas payrolls paid over the entire policy period. This would have constituted an error in the calculation of the premiums since from April 15, 1979 until November 28, 1979, the policy only covered defendant’s operations in Louisiana.

In pre-trial conference, the trial court determined that it would not allow defendant to introduce over plaintiffs objection any evidence to show that an error had been made in computing the premiums owed. During the course of the trial, the trial court sustained plaintiff's objections to defendant’s introduction of this evidence, and defendant made a proffer of evidence.

WAS THE DEFENSE WHICH DEFENDANT SOUGHT TO RAISE AN AFFIRMATIVE DEFENSE?

Article 1005 of the Louisiana Code of Civil Procedure requires the special pleading of affirmative defenses. Among those defenses which must be affirmatively plead is error or mistake. In the present case, defendant sought to show that it did not owe the total amount claimed by plaintiff because its Texas payrolls, paid during the period when the policy did not provide coverage in Texas, were included in calculating the policy premium. Defendant contends that this defense was not an affirmative defense and, therefore, it was entitled to adduce evidence in support of it at trial even though it had not specifically plead it in its answer. We disagree. We think that this error in the calculation of premiums which defendant sought to raise as a defense at trial was an “error” or at least “any other matter constituting an affirmative defense” within the meaning of Article 1005.

An affirmative defense is one which raises a new matter not covered by plaintiff’s petition and which will defeat plaintiff’s demand on its merits. Modicut v. Bremer, 398 So.2d 570 (La.App. 1 Cir.1980); Rourke v. Cloud, 398 So.2d 57 (La.App. 3 Cir.1981). In the present case, in attempting to show that an error had been made in calculating the premiums, defendant was raising a new matter not covered by plaintiff’s petition. Plaintiff’s petition alleged that the information, that is, receipts and payroll, on which the premiums were based had been provided by defendant’s accountant. Defendant’s defense that an error had been made in calculating the premiums was a new matter not touched on by plaintiff’s petition.

The general purpose of Article 1005 in requiring that certain defenses be affirmatively plead is to give fair notice of the nature of the defense, and thereby prevent a last minute surprise to the plaintiff. Bates v. Stewart, 262 So.2d 591 (La.App. 3 Cir.1972); Norman v. City of Shreveport, 141 So.2d 903 (La.App. 2 Cir.1962). Defendant’s proffer shows that he wished to introduce evidence to show that the payroll figures which defendant’s accountant gave to plaintiff’s representative did not reflect the fact that a large number of the employees on Louisiana payroll actually worked in Texas. The introduction of such evidence would have caused surprise to the plaintiff. Evidence concerning facts which plaintiff’s petition did not raise and which would not arise in the normal progression of the litigation of plaintiff’s claim would have been introduced. Furthermore, the surprise to the plaintiff that this defense would have occasioned would have been all the greater because the information on which the defense was based was, for the most part, within defendant’s control. It was defendant who should have known whether he had given Louisiana payroll figures to plaintiff which included employees working in Texas.

It is clear that the defense which defendant sought to raise was an affirmative defense and that the trial court was not wrong in refusing to let defendant introduce, over plaintiff’s objection, evidence in support of that defense.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed against defendant-appellant.

AFFIRMED.

      . LSA-C.C.P. Article 1005 provides:
      "Art. 1005. Affirmative defenses
      The answer shall set forth affirmatively arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, division, duress, error or mistake, estoppel, extinguishment of the obligation in any manner, failure of consideration, fraud, illegality, injury by fellow servant, transaction or compromise, and any other matter constituting an affirmative defense. If a party has mistakenly designated an affirmative defense as an incidental demand, or an incidental demand as an affirmative defense, and if justice so requires, the court, on such terms as it may prescribe, shall treat the pleading as if there had been a proper designation."