author: LANIER, Judge.

text:
    Clarence BRIDGEWATER v. CROWN ZELLERBACH and its Insurer, John Doe.
    No. 83 CA 0397.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Rehearing Denied April 3, 1984.

      Joseph A. Gladney, Baton Rouge, for plaintiff.
    William A. Norfolk, Baton Rouge, for defendant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   LANIER, Judge.

This suit commenced as a claim for workmen’s compensation benefits and medical expenses alleging that the employee was totally and permanently disabled by a job-related accident. The employee filed a supplemental and amending petition alleging that the employer acted arbitrarily, capriciously and without probable cause in denying compensation benefit payments and medical expenses and sought statutory penalties. The district court rendered judgment in favor of the employer and dismissed the employee’s suit. The employee took this devolutive appeal asserting that the district court committed error by not finding that the employee’s disability was caused by the job-related accident and by not finding that the employee was totally and permanently disabled or, alternatively, partially permanently disabled and entitled to workmen’s compensation benefits and medical expenses.

FACTS

On March 31, 1977, Clarence Bridgewa-ter was employed by Crown Zellerbach Corporation (CZ) at its paper mill in St. Fran-cisville, Parish of West Feliciana, Louisiana. At approximately noon on that day, Bridgewater was operating a portable forklift in the basement of the mill and was helping to lower a box of wire weighing about a ton and one-half from the machine room floor above to the basement. Bridge-water asked a fellow employee, Mike McGregor, to move a stack of paper with a front-end loader so that the wire could be lowered. In the process of moving the paper, McGregor backed the front-end loader into Bridgewater and knocked him to the floor. A short time later, Bridgewater began feeling pain in his low back area and reported the accident to his immediate supervisor, William J. Clark, a production supervisor for CZ. Clark instructed Bridge-water to report to the first aid station for treatment by Elizabeth Turnley, the plant nurse. Bridgewater told Turnley about his accident and complained of low back pain. Turnley gave Bridgewater some medication and sent him back to work. On April 4, 1977, Clark prepared an accident report on this incident.

Bridgewater continued working at the CZ paper mill but reported on a regular basis to the first aid station with complaints of low back pain.- Because of these continued complaints, the plant nurse made an appointment for Bridgewater to be examined by Dr. John A. Thomas on April 18, 1977. Dr. Thomas examined Bridgewater and diagnosed his problem as a lumbo-sacral sprain superimposed over a preexisting thorocolumbar scoliosis. Dr. Thomas determined that there was no permanent disability or loss of physical function expected.

Bridgewater continued working but went to the first aid station on a regular basis. The plant nurse then recommended that he consult with his family physician, Dr. Louis V. Montelaro. Dr. Montelaro examined Bridgewater on May 2, 1977. Bridgewater gave a history of low back pain. Dr. Montelaro examined Bridgewater and found no neurological deficits. He diagnosed Bridgewater’s condition as lumbar spasm. He recommended heat and prescribed a muscle relaxant for treatment. Dr. Montelaro subsequently issued a report to CZ on an insurance form indicating that Bridgewater was totally disabled from May 19, 1977, through May 30, 1977, because of a lumbar sprain arising from his employment.

Bridgewater continued working for CZ until November 21, 1977. On September 6, 1977, Bridgewater again saw Dr. Montela-ro for a sprained wrist. He went back to Dr. Montelaro on November 21, 1977, for a very badly infected ear. The medical evidence indicates that the sprained wrist and infected ear were not related to the March 1977 accident. Dr. Montelaro treated Bridgewater for his ear on November 23 and 28, 1977.

Bridgewater testified that on December 5, 1977, he attempted to get out of bed but fell down because he was unable to stand due to numbness in his legs. Bridgewater returned to Dr. Montelaro on that date. The doctor examined Bridgewater and found the ear to be clearing but that Bridgewater had a swollen left leg. This condition was diagnosed as cellulitis, an infection. Dr. Montelaro treated this condition with penicillin on December 6, 7, 8, 10 and 12. On December 13, 1977, the left leg flared up again. Dr. Montelaro continued penicillin treatments on that date and on December 14 and 17. Bridgewater returned to Dr. Montelaro on December 27, 1977. The doctor found that there was still swelling in his left leg and referred him to Dr. James E. Hand, a specialist in cardiovascular and renal diseases.

Dr. Hand examined Bridgewater on December 29,1977, and January 17, 1978. He advised Dr. Montelaro in a report that he diagnosed Bridgewater’s condition as post-phlebitic syndrome following infected tenia pedis of the left foot and Raynaud’s syndrome. At the last visit, Dr. Hand found that Bridgewater had improved considerably, the edema was gone from the dorsum of the left foot leaving a brownish discoloration over his venous pattern, and the athletes foot between his toes was better but still present. Dr. Hand advised Bridgewa-ter to continue treatment of the athletes foot, take medication and advised him not to work until he was able to stand without pain. Bridgewater saw Dr. Montelaro again on January 19, 1978, and February 11, 1978. At the February visit, he complained of pain in his left leg and foot and swelling of the hands. From September 1977 through February 11, 1978, the records of Dr. Montelaro and the report of Dr. Hand do not reflect that Bridgewater complained about pain in his back. Bridge-water was paid nonoccupational disability benefits of $130 per week for 11 weeks and 2 days ($1,467.14) for the period of November 23, 1977, to February 9, 1978.

On February 22, 1978, Bridgewater consulted Dr. Samuel C. Irwin on a referral from Dr. Hand. Bridgewater gave a history of numbness in the left leg extending from mid thigh to the mid leg region and chronic low back pain. He told Dr. Irwin that he hurt his back in the service in 1972 when he fell down and reinjured his back at work in 1977. Dr. Irwin took X-rays of Bridgewater’s lumbar spine and left leg and gave him a clinical examination. He found no spasm or muscle group weakness in either leg. Bridgewater had normal motion and the reflexes in his knees and ankles were intact and symmetrical. The circulation was intact in both legs and there was no evidence of soft tissue swelling. Dr. Irwin found no objective evidence of back problems or left lower extremity pathology. He diagnosed Bridgewater’s condition as a low back pain syndrome. Dr. Irwin issued a report to CZ dated March 20, 1978, wherein he stated that “[i]t is my opinion that this leg pain could indeed be caused by his back problem.” Dr. Irwin recommended in this report that Bridgewater engage in light duty until he was recovered. Dr. Irwin saw Bridgewa-ter again on March 23, 1978. Bridgewater complained of continued back pain and pain in his legs. Dr. Irwin referred Bridgewa-ter to Dr. Samuel L. Levert, Jr., a neurologist, for further examination. This suit was filed on March 31, 1978.

Bridgewater was examined by Dr. Levert on April 11, 1978. Dr. Levert’s neurological examination was within normal limits. He found no swelling of the left leg and no objective evidence of spinal cord, nerve root or peripheral nerve pathology.

Bridgewater returned to Dr. Irwin on May 12, 1978, complaining of continued back and leg pain with numbness in the legs. Dr. Irwin found no objective evidence of pathology but recommended a conservative program to decrease stress on the back. No medication was prescribed at this time. On May 26, 1978, Dr. Irwin furnished the following report to CZ:

This patient returned for re-evaluation and was seen on May 12, 1978. He continues to complain of back and leg pain, numbness, and inability to work. His symptoms are essentially the same as on his last visit.
Physical examination today fails to reveal any objective signs of pathology. In view of this man’s subjective complaints and lack of objective findings, both by me and by Dr. Levert, I feel that this man can return to work with no limitations. He is to return here prn symptoms.

On August 29, 1978, Bridgewater returned to Dr. Montelaro for a disability evaluation for welfare. He gave a history of chronic low back pain with radiation into both legs. Dr. Montelaro’s examination at that time was neurologieally negative. Bridgewater saw Dr. Montelaro again on August 9, 1979, for gastritis.

On February 4 and 20,1980, Bridgewater went to the Veterans Administration (VA) Hospital complaining of pain in his low back which radiated into both legs. Bridgewater was admitted to the VA Hospital on March 13, 1980, and underwent diagnostic testing until his release on March 25, 1980. The hospital was unable to determine the cause of Bridgewater’s complaints. A report on these examinations rendered by Dr. Edgar N. Weaver observed in pertinent part as follows:

He did have tight paraspinus muscles bilaterally. Neurologieally, he was completely intact without any evidence of a radiculopathy. The patient was scheduled for a myelogram which was totally within normal limits. The patient was also scheduled for an EMG. This likewise was normal. The patient had psychological testing ordered, but this could not be done because of the patient’s illiteracy. It should be noted that the tester, a psychologist, felt that we were ‘dealing with an immature, hysteroid personality structure for which his present litigation may well be a prime motivating factor.’
There is absolutely no evidence on examination or variety of neurological studies that this patient has any significant neu-rologic disease. The only positive findings in a thorough workup are a very slight ‘lumbar scoliosis’ and a failure of SI neural arch to close. As mentioned, neither of these in my opinion is of any significance. The patient will not be asked to return to the clinic. He will be given a prescription for Tylenol No. 3, Dalmane 30 mgs. The patient, in my opinion, has no reason to be disqualified from any type of work.

On May 19,1981, Bridgewater was examined by Dr. Kenneth E. Vogel, a neurologic surgeon. He gave a history of low back and bilateral leg pain. Dr. Vogel’s examination revealed a mild degree of limitation of motion with flexion and tenderness to the L5 facets to palpation bilaterally. The rest of the examination was normal. Apparently, Dr. Vogel referred Bridgewater back to the VA Hospital for an electro-myography (EMG) study. The records of the VA Hospital show that the request for the EMG was made on June 8 or 10, 1981. On June 26, 1981, Dr. P.K. Sarala conducted the EMG and rendered the following report:

EMG of the above mentioned muscles showed increased insertional activity in the left L5, SI paraspinal muscles and positive sharp waves in SI area. IMPRESSION: Findings compatible with a left SI radiculopathy.

On July 13, 1981, Bridgewater returned to Dr. Montelaro complaining of low back pain. He also told Dr. Montelaro that he was being seen by Dr. Vogel. Dr. Montela-ro gave him a prescription for pain medication. On July 20, 1981, Bridgewater stopped by Dr. Irwin’s office to discuss his case but was not examined.

On July 23, 1981, Bridgewater returned to Dr. Vogel still complaining of low back pain with radiation to both legs but with greater pain in the left leg. At this time, Dr. Vogel diagnosed Bridgewater’s condition as a herniated lumbar disc or a lumbar facet syndrome (arthropothy).

On August 30, 1981, Bridgewater was admitted to the Mercy Hospital for additional diagnostic testing and possible surgery. On August 31, 1981, Dr. Abner M. Landry, a specialist in radiology, X-rayed Bridgewater and performed a myelogram upon him. The X-rays were normal. The myelogram showed minor ventral indentations at the L4-5 and L5-S1 levels of the spinal column. There were no lateralizing defects or other significant positive findings. Dr. Landry testified that, although this study was essentially normal, it did indicate a bulging disc.

On September 1, 1981, Dr. Landry performed a lumbar discogram on Bridgewa-ter. At the' L3-4 level, he found internal disintegration of the disc, but no herniation or rupture. At the L4-5 level, he found internal disintegration of the disc and herniation of the disc material to the left. At the L5-S1 level, he found internal disintegration of the disc with no evidence of herniation. On September 2, 1981, Dr. Vo-gel performed a lumbar laminectomy with excision of a herniated disc at the L4-5 level and a lumbar facet rhizotomy (cutting of nerves that carry pain from facets to main sensory nerve) of the L3-5 levels. Bridgewater was discharged from the hospital on September 10, 1981.

Bridgewater saw Dr. Vogel again on December 10, 1981. Dr. Vogel was of the opinion that Bridgewater had a 10-15% medical impairment of the body as a whole as a result of his operation. He felt that Bridgewater could not do heavy manual labor and should avoid activities requiring lifting, pushing or pulling more than 50 pounds or activities involving repeated bending. Bridgewater could do light work when he was six months post-operative (March 1982) and would reach maximum recovery when he was one year post-operative (September 1982). Dr. Vogel gave the following testimony concerning the cause of Bridgewater’s herniated disc:

This patient has a herniated disk, we know. The etiology of that herniated disk is based, primarily, on his history. If this patient, indeed, had an injury in March of 1977 and if his pain did not resolve with treatment by any of the doctors, including those we’ve previously discussed, from 1977 through 1980 until I saw him, then in all medical probability, the injury of March of 1977 is the etiologic • cause for his herniated disk and for the operative procedure which I carried out.
The Rule of Thumb that we use is that if a patient has an injury and if that injury results in pain, if the pain resolves and your patient then has a period of at least three months where he is asymptomatic then has recurrent pain, then we look for a second cause for the recurrent pain. However, if the patient has unrelenting pain which doesn’t resolve for at least a three-month period, then we go back to the original injury; and we consider that to be the etiologic cause.
If I understand the patient’s history correct, from what he told me, between March of 1977 and when I saw him, there was no prolonged length of time during which he was asymptomatic or free of pain; and there’s no other injury that he related to me which caused an exacerbation of his injury. Therefore, in all medical probability, the March of 1977 injury is the etiologic cause of his herniated disk.[]

Bridgewater also presented lay testimony concerning his medical condition. He testified that he had constant low back pain that increased with exertion after the. March 1977 accident. Joseph N. Bernard, a pharmacist, testified that during the period of August 1977 through February of 1978 he issued various prescriptions to Bridgewater. At unspecified times during this period, Bridgewater complained to him about pain in his low back and legs. Bridgewater’s wife, Jocelyn, testified that Bridgewater constantly complained about his back since the March 1977 accident. She also testified that Bridgewater could no longer do yard work, housework or repairs to their house. Two friends of the family, Lloyd Albert, Jr. and Mark A. Rodney, testified that since the March 1977 accident Bridgewater could no longer play softball or do repairs around the house. After Rodney testified, the parties stipulated that there were additional lay witnesses who would testify essentially the same as Albert and Rodney.

The chain of causation required by La.R.S. 23:1031 is that the employment causes the accident, the accident causes injury, and the injury causes disability. The plaintiff-employee in a workmen’s compensation accident has the burden of establishing by a preponderance of the evidence the causal connection between his disability and the accident. Martin v. H.B. Zachry Company, 424 So.2d 1002 (La.1982). The factual findings of the district court as to work-related disability are entitled to great weight on appellate review. Crump v. Hartford Accident and Indemnity Company, 367 So.2d 300 (La.1979).

The evidence is uncontroverted that on March 31,1977, Bridgewater was struck by a front-end loader and knocked down; in 1981, over four years after this accident, Bridgewater was found to have a ruptured disc at the L4-5 level of his spinal column; and the operation performed on Bridgewa-ter in September of 1981 to correct the ruptured disc resulted in a permanent disability (total or partial). The district court (without assigning reasons for judgment) apparently determined as a fact that there was no causal relation between the accident of March 1977 and the herniated disc discovered in 1981. To reach this result, the court must have rejected the lay testimony regarding Bridgewater’s medical condition and the testimony of Dr. Vogel.

Bridgewater testified that he had constant low back pain after his accident with the front-end loader and that his condition got worse and led to his inability to work. This testimony was corroborated by Bridgewater’s wife who also testified that his ability to do chores around the house was substantially reduced. Two of Bridge-water’s friends confirmed that after the accident he could no longer engage in sports or work around the house as he did before the accident. The parties stipulated that additional lay witnesses were available to corroborate the testimony of the two friends. Significantly, the pharmacist, Joseph N. Bernard, whom the record does not reveal as either a friend or relative of Bridgewater, testified that during the period from August 1977 through February of 1978 Bridgewater complained to him about pain in his low back and legs at unspecified times. Bridgewater complained of pain in his back immediately after the accident; when he saw Dr. Thomas in April of 1977; when he saw Dr. Montelaro in May of 1977; when he saw Dr. Irwin during February to May of 1978; when he saw Dr. Montelaro in August of 1978; when he went to the VA Hospital in February and March of 1980 and when he saw Dr. Vogel in May through September of 1981. The fact that the records of Dr. Montelaro and Dr. Hand do not reflect that Bridgewater complained of back pain during the visits in September of 1977 through February of 1978 is not controlling because he had more pressing medical problems holding his attention. These medical histories given to the medical experts corroborate the lay testimony concerning Bridgewater’s continuous back pain. There is no direct evidence in the record that Bridgewater did not have continuous back pain. If the district court rejected the lay testimony and determined as a fact that Bridgewater was not continuously suffering low back pain after the accident of March 1977, such factual conclusion is clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Once it is accepted as a fact that Bridgewater suffered constant and continuous back pain after the accident, then we must examine the expert medical evidence to determine the source of the pain. In April of 1977, Dr. Thomas determined that the March 1977 accident caused a lumbo-sacral sprain superimposed over a preexisting thorocolumbar scoliosis. In May of 1977, Dr. Montelaro determined that the accident caused a lumbar spasm or lumbar sprain that disabled Bridgewater from May 19, 1977, through May 30, 1977. In February of 1978, Dr. Irwin diagnosed Bridgewa-ter’s condition as a low back pain syndrome. He issued a report to CZ in March of 1978 and indicated that Bridgewater’s leg pain could indeed be caused by his back problem. Drs. Thomas, Montelaro, Irwin and Levert only utilized clinical examinations and did not use an EMG, myelogram or discogram. These examinations ultimately failed to reveal the cause of Bridge-water’s complaints.

The EMG and myelogram performed on Bridgewater in March of 1980 at the VA Hospital were normal. However, Dr. Abner Landry testified that myelograms are accurate in only 75% of the cases. (Compare Martin v. H.B. Zachry Company, 424 So.2d at 1005). Dr. Landry further testified that the myelogram that he performed in August of 1981 was essentially normal, although it did indicate a bulging disc. Although the EMG done by the VA Hospital in March of 1980 was normal, the EMG performed by that same hospital in June of 1981 indicated “a left SI radiculopathy.” The record does not show that Bridgewater suffered a trauma between those two dates.

The diagnosis of a ruptured disc was not confirmed until Dr. Landry performed the discogram on September 1, 1981. Subsequent surgery verified the existence of the ruptured disc. A reasonable evaluation of the evidence shows that Bridgewater’s employment caused the accident of March of 1977, the accident caused an injury to. his back which manifested itself as a ruptured disc causing disability and the surgery necessary to treat this injury has resulted in a permanent disability. The judgment of the trial court determining otherwise is contrary to the evidence and is reversed.

DISABILITY

A workmen’s compensation claimant is totally and permanently disabled if he is unable to engage in any gainful employment. La.R.S. 23:1221(2). Louisiana has also adopted the “odd-lot” doctrine which provides that a claimant is also totally and permanently disabled if he can establish that because of his physical impairment and other factors, such as mental capacity, education, and training, he can perform no services other than those which are so limited in quality or dependability that a reasonably stable market for them does not exist. Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980). A claimant who is able to engage in some employment, though not necessarily the type of employment he was engaged in at the time of the accident, is considered to be only partially disabled. La.R.S. 23:1221(3); Dodd v. Nicolon Corporation, 422 So.2d 398 (La.1982); Stracener v. United States Fidelity & Guaranty Company, 420 So.2d 1101 (La.1982). The claimant in a workmen’s compensation proceeding bears the burden of proving to a legal certainty and by a reasonable preponderance of the evidence the nature and extent of his disability. The issue of whether or not he has carried this burden must be determined by examining the totality of the evidence, including both lay and medical testimony. Daney v. Argonaut Insurance Company, 421 So.2d 331 (La.App. 1st Cir.1982).

A report by Dr. Montelaro shows that Bridgewater was temporarily totally disabled from May 19, 1977, through May 30, 1977. However, the employment records of CZ were not filed in evidence and we are unable to tell if he was paid wages in lieu of compensation during this period. Except for this period, Bridgewater was not disabled from March 31, 1977, to November 21, 1977, because he continued to work for CZ. On November 21, 1977, Bridgewater stopped working for CZ because of a very badly infected ear, a nonwork-related condition. Bridgewater was treated successively for an ear infection and a leg infection between February 21, 1977, and February 11, 1978. He was paid nonoccupational disability benefits for the period of November 23, 1977, to February 9, 1978. He did not return to work or attempt to return to work after he was released from treatment for the infections. The record does not have sufficient medical evidence to show when the injury incurred by Bridgewater in March of 1977 manifested itself as disabling. The record does not have sufficient medical evidence to show the extent of Bridgewater’s disability (total or partial) from November 21, 1977, to September of 1981.

The testimony of Dr. Vogel shows that Bridgewater was totally but temporarily disabled as a result of the operation for a six-month period from September 2, 1981, to March 2, 1982. After March 2, 1982, Bridgewater was capable of doing light work which did not involve lifting, pushing or pulling more than 50 pounds or activities involving repeated bending. When Bridge-water reached maximum recovery in September of 1982, he had a permanent partial disability of 10-15% of the body as a whole. Bridgewater is a high school graduate with 480-500 hours of welding experience. He also has training as an X-ray technician and a physical therapist. While in the service, he was a combat engineer. He was born on August 25, 1952, and is married with two children.

Bridgewater did not present evidence to show that because of his physical impairment, mental capacity, education or training he could perform no services other than those which were so limited in quality or dependability that a reasonably stable market for them did not exist. Therefore, he has failed to prove that he is totally and permanently disabled as an “odd-lot” employee. The testimony of Dr. Vogel clearly shows that Bridgewater has been able to engage in some employment since March 2, 1982. Bridgewater has thus established that he is permanently but partially disabled as a result of his injury.

Although Bridgewater has established the nature and extent of his disability after the operation, the evidence fails to establish the nature and extent of the disability during the period from the accident to the operation. We are most reluctant to remand a matter to a trial court to take additional evidence because this further delays a final decision of the case. Shatoska v. International Grain Transfer, Inc., 430 So.2d 1255 (La.App. 1st Cir.1983). However, because of the facts and circumstances of the instant ease, we believe that the interest of justice requires a remand to specifically determine the nature and extent of Bridgewater’s disability during the period of November 21, 1977, to September 2, 1981.

BENEFITS DUE

The parties stipulated at the trial that if Bridgewater was entitled to workmen’s compensation benefits he was entitled to the maximum authorized at the time of his accident. For injuries occurring on or after September 1, 1976, and on or before August 31, 1977, the maximum weekly compensation benefits authorized were $95 per week. La.R.S. 23:1202(1).

On the remand, Bridgewater would be entitled to benefits for temporary total disability of $95 per week for the periods of May 19, 1977, through May 30, 1977, and September 2, 1981, through March 2, 1982. La.R.S. 23:1221(1).

In March of 1977, for partial permanent disability, an employee was entitled to sixty-six and two-thirds percent of the difference between the wages he was earning at the time of the injury and any lesser wages which he actually earned in any week thereafter in any gainful occupation for wages not beyond a maximum of 425 weeks. La.R.S. 23:1221(3). Although Bridgewater has established entitlement to benefits for partial permanent disability after March 2, 1982, the record does not reflect if, or when, he would be entitled to such benefits prior to September 2, 1981. This determination shall be made by the trial court on the remand and the final judgment shaped accordingly.

MEDICAL EXPENSES

An employer is required to pay for all necessary medical, surgical, hospital and medicine expenses for an injured employee. La.R.S. 23:1203; Oregon v. Tri-State Road Boring, Inc., 434 So.2d 65 (La.1983).

Bridgewater proved entitlement to the following medical expenses:

1. Dr. Montelaro $ 8.00
2. Dr. Irwin 120.00
3. VA Hospital 2,172.00
4. Mercy Hospital 4,773.07
5. Tens Unit from Lambert’s 629.59
6. Dr. Vogel 2,695.00
TOTAL $10,397.66

Bridgewater is entitled to an award of $10,-397.66 with legal interest on each individual expense from the date the expense was incurred until it is paid. La.C.C. arts. 1938 and 2924.

SPECIAL COSTS

Bridgewater is entitled to recover expert witness fees for Drs. Irwin, Vogel and Landry of $150 each, and $75 for Dr. Montelaro. La.R.S. 13:3666(A), (B). Bridgewater is entitled to recover $42 for the cost of the Mercy Hospital records. La.R.S. 13:3666(C). Bridgewater has proven and is entitled to recover deposition costs of $318.15. La.R.S. 13:4533; Sorapuru v. Simon, 380 So.2d 1225 (La.App. 4th Cir.1980).

DECREE

For the foregoing reasons, the judgment of the district court is reversed. Judgment is rendered in favor of Bridgewater and against CZ finding that the work-related accident of March 31, 1977, caused Bridge-water’s disability. Judgment is further rendered in favor of Bridgewater and against CZ for medical bills and expenses totaling $10,397.66 with legal interest thereon from the date that each of the expenses were incurred until paid. CZ is assessed expert witness fees of $150 each for Drs. Landry, Vogel and Irwin and $75 for Dr. Montelaro. CZ is assessed $42 for the cost of the Mercy Hospital records and $318.15 for the costs of depositions used at the trial. CZ is cast for all costs in the trial court and in this court. It is ordered that this cause be remanded to the district court for the purpose of determining the nature and extent of the employee’s disability during the period of November 21, 1977, to September 2, 1981, and to render an appropriate judgment reflecting all benefits due the employee for disability in accordance with the views expressed herein.

REVERSED AND RENDERED IN PART AND REMANDED IN PART.

      . The employee does not assign as error the denial of his claim for statutory penalties.

      . The testimony of the medical doctors was presented by either deposition or stipulating their reports. This court is not bound by the manifest error rule in evaluating this evidence. F & S Offshore, Inc. v. Service Machine & Shipbuilding Corporation, 430 So.2d 1167 (La.App. 1st Cir.1983); Schwarz v. Bourgeois, 422 So.2d 1176 (La.App. 4th Cir.1982), writ denied, 429 So.2d 153 (La.1983); Farris v. Ducote, 293 So.2d 589 (La.App. 3rd Cir.1974), writ refused, 295 So.2d 814 (La.1974).

      . The court minutes for October 20, 1982, indicate that oral reasons for judgment were assigned that date. The judgment signed and filed on November 2, 1982, indicates that oral reasons for judgment were assigned. The record contains no transcript of oral reasons for judgment.

      . A bill from Dr. Montelaro for $65 was filed in evidence, but only an $8 charge on this bill is related to Bridgewater’s back.

      . Dr. Vogel requested a fee of $250, but we find that he is entitled only to the same award as Drs. Landry and Irwin.

      .The employee is entitled to legal interest on each weekly compensation benefit from its date due until paid. Shatoska, 430 So.2d at 1263.


source: Caselaw Access Project

author: COLE, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Gary L. SPELL.
    No. 83 KA 0927.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Rehearing Denied April 3, 1984.

      Margaret A. Coon, Asst. Dist. Atty., Cov-ington, for appellee.
    David R. Katner, Lawrence A. Arcell, New Orleans, for appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COLE, Judge.

The pivotal issue presented is whether or not proceedings at which the amount of restitution for a felony victim is determined must be recorded, thus affording an evi-dentiary basis for review of excessiveness.

The facts are as follows. Defendant, Gary Spell, was charged by bill of information with having committed an aggravated battery on July 19, 1980. Defendant pled not guilty and after a jury trial, was found guilty as charged. On October 19,1982, he was ordered to pay a fine of $2,500 and was sentenced to six years at hard labor. The sentence was suspended and defendant was placed on probation for five years, subject to the following conditions:

(1) defendant pay the fine within 18 months from the sentencing date;

(2) defendant serve one year in the parish jail;

(3) defendant make reasonable reparation and restitution to the victim in an amount to be determined by the court at a later date.

Approximately six months later, on April 5, 1983, the court held a hearing in which it suspended the remainder of the jail sentence and ordered defendant released from jail. The court further ordered defendant to make “reparation and restitution to the victim in the amount of $1,000 per month, said amount to be paid throughout his probationary period.” The payments were to begin on July 1, 1983. This hearing was not recorded.

Defendant filed an appeal and sometime thereafter filed a “Motion to Amend and/or to Correct Sentence” and an alternative “Motion to Stay Order Pending the Appeal of this Matter.” At a hearing on July 6, 1983, defendant argued the sum he had been ordered to pay amounted to $60,000 and was therefore excessive. The court noted defendant’s salary ranged from $2,500 to $4,000 a month when he worked as a seaman and that judgment had been confessed in a civil suit filed by the victim against the defendant in the sum of $225,-000. No other factors were mentioned. The court denied both motions.

On appeal, defendant raises two assignments of error. First, he contends the court erred in failing to record and transcribe the April 5th hearing in which the court set the amount of restitution. Second, he contends the amount fixed is excessive.

Defendant cites Code of Criminal Procedure article 843 in support of his first argument. The article reads as follows:

“In felony cases, and on motion of the court, the state, or the defendant in misdemeanor cases tried in a district, parish, or city court, the clerk or court stenographer shall record all of the proceedings, including the examination of prospective jurors, the testimony of witnesses, statements, rulings, orders, and charges by the court, and objections, questions, statements, and arguments of counsel.”

The comments to the article make it clear that in felony cases all proceedings must be recorded and that the list in the article is-only illustrative. In a felony case the recording is done automatically, i.e., the defendant need not make a motion to this effect.

Code of Criminal Procedure article 895.1 and 895, subd. A(7) grant the court authority to order restitution as a condition to probation. Art. 895.1 allows the victim to be compensated for his “loss and inconvenience.” In the present case the lack-of a record of the April 5th hearing is crucial. We cannot determine fairly whether $60,-000 is a reasonable or excessive sum with-. out knowing more facts about the victim’s injury and his residual circumstances. These facts are necessary in order for us to determine the victim’s loss and inconvenience. Necessarily relevant is defendant’s ability to pay the sum ordered.

Somewhat similar circumstances were presented in State v. Sandifer, 359 So.2d 990 (La.1978). Defendant was convicted of forgery (on a credit sale) and as a condition of her probation was ordered to pay a certain sum to the merchant involved. The sum far exceeded the value of the merchandise she fraudulently acquired. Defendant appealed her conviction and sentence and argued particularly that the court erred in ordering her to pay a sum greater than the value of the merchandise. In considering this argument the Supreme Court noted the trial court had not given reasons for imposing a higher figure. The Supreme Court affirmed the conviction and sentence but vacated that condition of the probation and instructed the trial court to hold a hearing on the matter.

This would be an appropriate remedy in the present case also. We therefore vacate the condition of the probation which required defendant to pay $1,000 a month in restitution. The trial court shall hold a hearing on the matter, allowing both sides to make arguments and present evidence showing the appropriate amount of restitution. After considering and articulating all factors, the court shall determine the appropriate sum to compensaté the victim for his loss and inconvenience. (This proceeding will be recorded in compliance with Code Crim.P. art. 843.) If after this hearing the defendant still feels the sum is excessive he will have the right to appeal. In all other respects the sentence is affirmed.

SENTENCE AFFIRMED; CONDITION OF PROBATION VACATED; CASE REMANDED.

      . The minutes of the April 5 hearing stated that the previous sentence was being "amended.” On June 27, 1983 the court corrected this entry, because the sentence was not in fact “amended” at all; rather, the conditions of the probation were modified. The June 27 entry is identical in substance to the April 5th entry.

      . The civil suit had been pending before the same court. The defendant confessed judgment explaining he had no assets other than his non-garnishable seaman’s wages.


author: DUFRESNE, Judge.

text:
    ASSOCIATES FINANCIAL SERVICES OF AMERICA, INC. v. Mario S. ROGELL.
    No. 83-CA-642.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 1984.
    Rehearing Denied May 17, 1984.

      See also, 449 So.2d 529.
    Gary A. Cotogno, New Orleans, for plaintiff-appellant.
    Pat Breeden, New Orleans, for defendant-appellee.
    Before BOUTALL, CHEHARDY and DUFRESNE, JJ.
   DUFRESNE, Judge.

This is an appeal by Associates Financial Services of America, Inc. (Associates), plaintiff-appellant, from a judgment granting a preliminary injunction enjoining it from proceeding with the seizure and sale by executory process of property owned by Mario S. Rogell, defendant-appellee. Because we agree with the trial court that Associates’ petition for executory process failed to allege an essential material fact, i.e. that the note sued upon was in default, we affirm.

On October 5, 1982, Associates filed a petition to have seized and sold by executo-ry process the home of Rogell. The facts alleged were that Rogell had borrowed some $35,000, and mortgaged his home to secure this loan. It was further alleged that Rogell had failed to make certain payments, and that under the terms of the note and mortgage, Associates could accelerate the note and proceed to seizure and sale of the mortgaged property by executo-ry process. The order for executory process was signed by the trial judge that same day.

On January 7, 1983, Rogell filed a petition for an injunction to stop the sale of the property on the grounds that the mortgage was not authentic because it had not been witnessed and notarized in his presence. On January 10, 1983, a temporary restraining order was issued, “effective” to February 10, when a hearing on the issuance of a preliminary injunction was to be held. As a result of that hearing, no transcript of which appears in the record, the trial judge signed a judgment dated March 7, 1983, which purported to dissolve the temporary restraining order of January 10, 1983. That judgment neither granted, denied, nor addressed in any way the preliminary or permanent injunction sought by Rogell.

Associates again took appropriate steps to seize and sell the property, and the sale was fixed for June 15, 1983. On June 14th, Rogell again sought to enjoin the sale, but in this instance on the grounds, inter alia, that Associates had failed to allege in its original petition that the note sued upon was in default. A temporary restraining order was granted, a hearing held, and on June 29, 1983, a judgment was signed preliminarily enjoining Associates and the sheriff of the parish from proceeding with the sale of the property. It is from this judgment that Associates now appeals.

They urge two errors in the trial court proceeding.

1.) The judgment of March 7, 1983, which dissolved the first temporary restraining order was res judicata and this barred issuance of the second temporary restraining order of June 14th, as well as the preliminary injunction of June 27, 1983.

2.) The original petition for executory process did allege that the note was in default, and the trial court’s finding to the contrary was error.

As to Associates’ argument of res judicata, we reject it because it simply does not address the facts of this case as shown in the record.

It is axiomatic that the principle of res judicata is applicable only where a final judgment has been rendered, Civ.Code Arts. 2286, 3556(31), or in other cases specifically provided by law, cf. Civ.Code Art. 3078. As the present case is not specifically provided for by law, our inquiry is simply whether a final judgment was ever issued on Rogell’s January 7, 1983, petition for a preliminary injunction.

The record clearly discloses that the only judgment ever issued in regard to Rogell’s first petition was that of March 7, 1983, which purported to dissolve the January 10th temporary restraining order. We say “purported” because that temporary restraining order expired, even by its own questionable 30 day term on February 10th (cf. LSA-C.C.P. Art. 3604).

This judgment cannot form the basis for the exception of res judicata for two reasons. First, because it was moot when rendered in that the temporary restraining order had already expired. Second, even had the temporary restraining order still been in effect, a judgment dissolving a temporary restraining order is interlocutory, and therefore not a final judgment as required by Civ.Code Arts. 2286 and 3556(31) cf. Whalen v. Brinkmann, 258 So.2d 145 (La.App. 1st Cir.1972).

We also point out that the record does not show that Rogell’s first petition for preliminary and permanent injunctions because of a defective notarization of the mortgage has ever been ruled on. In this court’s opinion, that petition and all allegations raised thereon are still pending in the district court, and we so hold.

As to Associate’s second allegation of error, we reject it as well. In May Co., Inc. v. Heirs of Sumage, 347 So.2d 916, 917-18 (La.App. 3rd Cir.1977), the court stated the law applicable here as follows:

Executory process is a • harsh remedy, and the party using it must strictly comply with the letter of the law governing this severe remedy. First National Bank of Lafayette v. Gaddis, 250 So.2d 504 (La.App. 3rd Cir.1971), and Slidell Building Supply, Inc. v. I.D.S. Mortgage Corp., 273 So.2d 343 (La.App. 1st Cir.1972).
Article 2637 of the Louisiana code of Civil Procedure (hereinafter the Code) states that the proof of breach of the mortgage need not be submitted in authentic form. It may be proved by verified petition or affidavit. According to Article 2634 of the Code, the petition must be in compliance with Article 891, which states in part:
“Art. 891. Form of petition
.... It shall set forth the name, surname, and domicile of the parties; shall contain a short, clear, and concise statement of the object of the demand and of the material facts upon which the cause of action is based; and shall conclude with a prayer for judgment for the relief sought. Relief may be prayed for in the alternative.”

Further, an essential allegation of material fact in a petition for executory process is that the note sued on is in default, May, supra; Chrysler Credit Corp. v. Stout, 404 So.2d 304 (La.App. 3rd Cir. 1981).

Associates’ petition alleged the following:

“VIII.
In the act of mortgage, the mortgagor(s) further agreed and stipulated that if the note or any installment thereon be not promptly and fully paid when due or in the event of failure to comply with any of the obligations therein undertaken, or conditions therein set forth, the note should at the option of the holder of the note, at once mature and become due and payable, and authorized the holder of the note to cause the property hereinabove described to be then sold after due process of law under executory or other legal process.
IX.
Defendants paid on said note a total sum of THREE THOUSAND FIVE HUNDRED SIXTEEN AND 68/100 ($3,516.68) DOLLARS leaving a balance of FORTY-NINE THOUSAND TWO HUNDRED EIGHTEEN AND 52/100 ($49,218.52) DOLLARS on said note as of July 23, 1982. However despite amicable demand, defendants have failed to pay the installments subsequent thereto the date of filing this petition.
X.
Petitioner herein exercises its option as the holder and owner of the note in question and declares the balance of the note including principle, interest and attorney’s fees due and payable.”

In this court’s opinion, the above allegations are sufficient to allow Associates to accelerate the note for failure of Rogell to make timely installment payments, which they have done. However, the petition does not sufficiently allege that payment of the accelerated total amount of the loan is now in default, or that it has not been paid. We therefore agree with the trial judge that the petition does not allege a material fact essential to maintaining an action by executory process.

For the foregoing reasons, the judgment of the trial court enjoining the sale of the property at issue by executory process is affirmed, and the case is remanded for further proceedings.

AFFIRMED AND REMANDED.


text:
    Mario S. ROGELL v. ASSOCIATES FINANCIAL SERVICES, OF AMERICA, INC.
    No. 83-CA-643.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 1984.
    Gary A. Cotogno, New Orleans, for defendant-appellant.
    Pat Breeden, New Orleans, for plaintiff-appellee.
    Before BOUTALL, CHEHARDY and DUFRESNE, JJ.
   DUFRESNE, Judge.

This case was consolidated in District Court with the previous case of Associates Financial Services of America, Inc. v. Ma rio S. Rogell, 449 So.2d 526 (La.App.1984) and has been lodged in this court on appeal.

However, the record reveals that this case has never been appealed, is still pending in the District Court and is not properly before us. Since it was erroneously placed on the docket of this court, to avoid any possibility of confusion, we hereby dismiss this appeal and remand the case to the District Court for further proceedings.

DISMISSED AND REMANDED.


author: BOUTALL, Judge.

text:
    Anthony J. GIARRATANO v. The KREWE OF ARGUS, INC. and Puritan Insurance Company.
    No. 83-CA-486.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 1984.
    Rehearing Denied May 17, 1984.

      Richard M. Michalczyk, Cronvich, Wambsgans & Michalczyk, Metairie, T. Robert Lacour, Kenner, for Anthony J. Gi-arratano plaintiff-appellee.
    Robert E. Winn and Shirley A. Nassif, Sessions, Fishman, Rosenson, Boisfontaine & Nathan, New Orleans, for The Krewe of Argus, Inc. and Puritan Insurance Company defendants-appellants.
    Before BOUTALL, GAUDIN and GRIS-BAUM, JJ.
   BOUTALL, Judge.

Appellants, the Krewe of Argus and its insurer Puritan Insurance Company, appeal a judgment of $75,000.00 rendered against them as the result of an injury to a Mardi Gras parade spectator. We affirm for the reasons which follow.

Plaintiff-appellee Anthony J. Giarratano sustained a severe eye injury while attending the Krewe of Argus parade with his family on February 7, 1978. Mr. Giarrata-no suffered extensive and permanent damage to the vision in one eye when a stuffed mouse on a pointed cane, some 30-36 inches long, was thrown or dropped from an Argus float and penetrated his eye.

On the morning of trial plaintiff settled with the two named individual defendants, Mr. Lee and Mr. Morton, who had been maskers on the float. At the time of settlement the trial judge also dismissed the Krewe of Argus’ third party demands against Lee and Morton. Trial proceeded against the sole remaining defendant, the Krewe of Argus, with the jury returning a verdict in favor of plaintiff in the amount of $75,000.00.

Raised on appeal are two jury instructions which the trial court refused, and questions of law regarding contribution among joint tortfeasors.

ISSUES

(1 & 2) Whether the trial court erred in refusing to instruct the jury on assumption of risk and in refusing to provide jury interrogatories on that issue.

(6) Whether the trial court erred in refusing to submit separate jury charges and interrogatories on independent negligence of the Krewe of Argus versus its vicarious liability.

(3 & 4) Whether the trial court erred in failing to submit to the jury charges and interrogatories on whether Morton and Lee were joint tortfeasors with the Krewe and also (5) erred in failing to grant the Krewe a ⅜ pro rata reduction of the judgment in light of the alleged joint liability of the aforementioned individuals.

ASSUMPTION OF RISK

The facts of this case are basically uncontested. At the time of the injury, plaintiff was an employee of Manufab, Inc., owned by Mr. Morton and Mr. Lee. Plaintiff and his family were told ahead of time which float his employers would be riding on in the Krewe of Argus parade. Plaintiff, his wife, and their two young children positioned themselves at the front line of the crowd, according to plaintiffs testimony, some 5 to 10 feet from passing floats. As the float carrying Lee and Morton passed, plaintiff was leaning down to talk to his son, who was asking to sit on his father’s shoulders. As plaintiff straightened up, a mouse on a pointed stick, one among a “hail” of such favors being dropped to the Manufab group, struck him in the eye. Anthony Giarratano suffered a punctured cornea, necessitating two operations and resulting in permanent damage to his vision.

Appellant, the Krewe of Argus, has argued in its Motion for New Trial and on appeal that the trial court erred in refusing to instruct the jury on the defense of assumption of risk. We agree that the trial court was in error in not submitting this issue to the jury, since assumption of risk is a question of fact to be determined by an evaluation of the plaintiff’s subjective knowledge in each case. See Dorry v. Lafleur, 399 So.2d 559 (La.1981); Restatement, Second, Torts, Sec. 496 D comment e.

Under the authority of art. V sec. 10(B) of the Louisiana Constitution of 1974 and Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975), we have the jurisdiction to make findings of fact which have been erroneously excluded from the jury’s consideration at the trial court level. Accordingly, we have reviewed the entire record in order to determine the assumption of risk issue.

Since Dorry v. Lafleur, supra, the proof requirement for the applicability of the assumption of risk defense has consisted of the following three factors: (1) the plaintiff must have actual knowledge of the dangerous condition, (2) there must be appreciation of its dangerous quality, (3) there must be a voluntary assumption of the danger. This is a subjective standard which turns on the facts and circumstances of each individual situation. Prior to Dor-ry, the inquiry employed was “what the plaintiff knew or should have known.” See Colclough v. Orleans Parish School Board, 166 So.2d 647 (La.App. 4th Cir. 1964). As the Dorry opinion aptly points out, this former inquiry into what the plaintiff should have known falls more .correctly into the realm of contributory negligence. We need not deal with the issue of plaintiff’s contributory negligence in the present case. In response to interrogatories the jury specifically found that plaintiff was not contributorily negligent.

Applying the factors set out in Dorry v. Lafleur, supra, to the case now before us, we conclude that in this instance plaintiff did not assume the risk of his injury. Plaintiff here testified that from his experience at previous parades he had never witnessed the type of favor which injured him being thrown from floats. He testified that to his knowledge unusual favors were handed down, sometimes in plastic bags.

Appellant has argued that experienced spectators at Mardi Gras parades must assume that they run the risk of being struck by flying objects. We decline to subscribe to such a sweeping application of the assumption of risk doctrine to the exclusion of all negligence.

A parading Krewe is at least under the minimum standard of care imposed by La. C.C. art. 2315 to act in a reasonable and prudent manner. We are not convinced that anyone merely watching a parade from the sidelines knows or must know from previous experience that coconuts will be thrown at him like baseballs, or, as in the case here, that long-pointed sticks, thrown almost simultaneously by two and possibly three maskers, will be showered on his head from an unusually high float. It is in this respect that the present case resembles Schofield v. Continental Ins. Co., 330 So.2d 376 (La.App. 4th Cir.1976). In that case a Mardi Gras spectator received a Zulu coconut full in the face. In that case, as in the present one, the manner in which the injury was inflicted represented an unforeseeable deviation from any reasonable standard of care, not foreseen and thus not assumed by the spectator. Assumption of risk under these circumstances is not a viable defense. We must add, however, that we do not interpret the Schofield case to stand for the proposition that assumption of risk may never apply in the case of an injured parade spectator. Each case depends on its own facts and circumstances.

Finally, we would briefly address the proviso in Dorry v. Lafleur, supra, at 563, that (in light of the 3 requirements set out therein):

This is not to say that the plaintiff’s disclaimer of knowledge or appreciation must be taken at face value. This is a fact question. And there are some risks that every man must be held to appreciate, (see Restatement, supra, comment d). There is a plain difference, however, between what one must have known (a finding of actual knowledge) and what one should have known (the imposition of an objective standard of care).

Comment d to the Restatement, Second, Torts, Sec. 496(D), cites, inter alia, the following examples of risks which an adult must be held to appreciate: the risk of burning oneself when one comes into contact with fire, the risk of falling from a high place, of drowning in a body of water, or, the “normal and ordinary risks” attendant to a particular locale if the person is well acquainted with it.

We find that although plaintiff had previously attended many Mardi Gras parades, his testimony substantiates that he was not aware of the particular risk which injured him, nor was the throwing of a 30-36 inch pointed stick in his direction such an apparent or “normal and ordinary risk” that he must be held to have appreciated the risk of harm in the manner in which it befell him.

We conclude that the preponderance of evidence shows that plaintiff did not assume the risk of this injury.

Independent versus vicarious liability of the Krewe of Argus

Appellant Krewe of Argus has argued that the evidence at trial proved only that the individual maskers were negligent, and that no relationship permitting vicarious liability of the Krewe itself exists. Therefore, appellant argues, the trial court erred in refusing to give the jury a separate instruction on independent liability versus vicarious liability.

The trial court did give the following instruction:

The Louisiana Law in this regard provides:
“Every act whatever of man that causes damage to another obligates him by whose fault it happened to repair it.” Fault in this law is meant to be the same as negligence. Negligence is defined as the lack of due diligence or care. In the legal sense, negligence means the failure of a party to use due care in a particular set of circumstances. In other words, negligence is the failure of a party to use the standard of care which an ordinary reasonable and prudent person would use under a similar set of circumstances. Basically, each of us has the duty not to injure or damage another as a result of our fault or negligence.
A person can be at fault by an unreasonable act of commission or by omission. In other words, if a person fails to perform some act which a reasonable prudent person would perform, and such failure to act causes injury of any type to another, that failure or omission is negligence, the same as if that person would not have acted under similar circumstances. In short, negligence is the failure to exercise reasonable care towards another person to whom a duty to exercise reasonable care is owed, and negligence includes omissions as well as commissions.

We note at the outset the familiar principle of law that the trial court is bound to instruct the jury only on the law which pertains to the evidence adduced in that particular case. Jackson v. West Jefferson General Hospital, 245 So.2d 724 (La.App. 4th Cir.1971); USF & G v. Sanders Drilling, 396 So.2d 1353 (La.App. 3rd Cir.1981).

Considering that the individual defendants had been dismissed from the case, as well as the third party demand by the Krewe of Argus against them, there was a sole defendant on trial: the Krewe itself. The basic issue raised was not whether Lee or Morton was negligent and thus the Krewe of Argus vicariously liable, but whether the Krewe was itself negligent and liable for its own negligence. There appears in the record a charge that each party’s negligence was to be considered independently without regard to the other parties. Correspondingly the interrogatories presented to the jury were directed only to the negligence of the Krewe of Argus:

“Was the defendant, Krewe of Argus, Inc., at fault or negligent in causing plaintiffs injuries?”

There is sufficient evidence in the record to support the jury’s conclusion that the Krewe of Argus, by its failure to set out basic safety guidelines for its members to follow, by its failure to inform and educate its members as to the potential for various types of injury to occur to spectators, and by its failure to supervise the types of throws bought by its individual members, was guilty of negligence by omission.

In light of the procedural posture of this case and the evidence, it was not error for the trial court to refuse to instruct the jury on the absence of vicarious liability in this case.

Contribution among Joint Tortfeasors

Appellant argues, in Assignments of Error 3, 4, and 5, that the trial court erred in not submitting to the jury the issue of the liability of Mr. Morton and Mr. Lee as joint tortfeasors with the Krewe of Argus, or in the alternative that the trial court erred in not making that finding itself, which should have resulted in a % reduction of the $75,000.00 award against the Krewe of Argus.

Defendant-appellant, and not the plaintiff, had the burden of proving the liability of Mr. Morton and Mr. Lee as joint tortfeasors, since they settled with the plaintiff prior to trial. Raley v. Carter, 412 So.2d 1045 (La.1982). The trial court, in its Denial of Motion for New Trial, expressly found that defendant-appellant had not met its burden of proof in this regard. We find no manifest error in this holding.

The testimony of Mr. Morton and Mr. Lee, when called by defendant-appellant, was brief and inconclusive. Both men recounted their recollection of the 1978 Argus parade, both admitted to throwing the type favor which injured plaintiff, but neither could say who had thrown the particular favor which injured Mr. Giarratano. Mr. Morton testified that he saw the actual injury occur, but could not determine, in the midst of the bedlam, where it had come from. Mr. Lee testified that all the maskers bought their own favors, and that this particular one was a big seller. As mentioned earlier, since the throws were not inspected for suitability prior to the parade it is not known, nor was any testimony offered as to whether other maskers were also throwing this type favor.

The balance of the testimony of the two men concerned what, if any, safety precautions and guidelines they had been given prior to the parade.

Pretermitting the question of whether Mr. Lee and Mr. Morton were insureds under the Puritan liability policy, which would bar the Krewe’s claim for contribution as a matter of law, we affirm the trial court’s holding that the Krewe did not carry its burden of proof on the issue of joint liability of Mr. Lee and Mr. Morton.

For the reasons above, we affirm the judgment appealed.

AFFIRMED.


author: WILLIAMS, Judge.

text:
    STATE of Louisiana v. Isiah LEWIS.
    No. KA-1363.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Susan Scott Hunt, Beryl M. McSmith, Asst. Dist. Attys., New Orleans, for plaintiff-appellee.
    William H. Slaughter, III, New Orleans, for defendant-appellant.
    Before KLEES, BYRNES and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal by defendant Isiah Lewis from a conviction for manslaughter in violation of La.R.S. 14:31. Defendant appeals to this court on the basis that there is insufficient evidence to sustain his conviction.

On October 28, 1982, defendant’s wife, Patricia Lewis, suffered second and third degree burns over 85% of her body. Defendant claimed that she was cooking and an explosion in the kitchen had caused the injuries. An investigation into the incident was conducted, and defendant was arrested when his wife died six days after the fire. He was indicted by a Grand Jury on a charge of second degree murder. After a trial by a twelve person jury, defendant was convicted of manslaughter. A sentencing hearing was held, and defendant received the maximum sentence, 21 years at hard labor.

Defendant asserts that there was not sufficient evidence introduced at trial to sustain his conviction. The defense produced the following facts: Although they had recently been having problems, defendant and his wife had enjoyed a good marriage for 15 years. Several of the neighbors in the immediate community and the pastor of the church which defendant attended testified that defendant was a nonviolent man and could not have performed the crime for which he was accused. Defendant himself testified and said that his wife went into the kitchen to prepare some food and he saw fire ignite her and then she ran from the kitchen to the living room to the bathroom and back to the living room. During this time he attempted to put the flames out by beating her with the sofa cushions. The defense also stressed that at no time did the victim ever name her husband as having perpetrated the act and that they appeared to be a warm, loving couple.

At trial, the State adduced the following facts: On cross-examination, defendant testified that he and his wife had been separated for several weeks prior to the incident, and a few hours before the crime he had gone looking for her to ask her to come home to take care of himself and their five children. He found her dancing with another man in a bar near Charity Hospital where she worked. He dragged her out of the bar “by her hair,” and they returned to their home. Defendant testified that at about 12:45 a.m. his wife told him she was going into the kitchen to prepare something to eat. During several of the statements he gave to investigating officers, defendant testified that his wife told him that she was going to make some hamburgers. Investigators found no hamburger in the kitchen other than in the freezer. Investigators from the Police Department and the Fire Department testified unequivocally that no fire had taken place in the kitchen.

Eugene Tierney, Jr., the District Chief for the New Orleans Fire Department, responded initially to the call: The victim was on the ground, across the street from the house. He testified that as he entered the house where the fire had taken place, he smelled a sharp acrid odor similar to cleaning fluid. He also noticed a sofa cushion in the back yard that was burning and that the water faucet was on. He could not find a container that held the sharp smelling substance anywhere in the house. He did notice that the burner was in the “ON” position on the gas stove, and was not lit. He testified that no natural gas was escaping.

Several people who entered the house noticed a gasoline smell in the home. Officer Mark Willow who gave the defendant a ride home from Jo Ellen Smith Hospital where his wife had been taken in order for him to retrieve his insurance card, smelled gasoline on defendant and then most clearly in the house. He noticed that there was charred material on the living room floor near the sofa and that the smell of gasoline emanated most strongly in the living room.

Several other people who came in contact with the victim, noticed a smell of gasoline or petro-chemical on her clothes immediately after the fire. At Jo Ellen Smith Hospital, the nurse on duty asked defendant if the house had burned down and he said “No, just the couch.” The nurse queried the victim as to what happened and she told her that she was never going to tell what happened. The victim was soon transferred to Charity Hospital where she was to be treated for her burns. The doctor who initially examined her there, who was qualified at trial as an expert in the area of burn treatment, said that she was burned down the front and back of her body with the most severe burns occurring in the head area and gradually becoming less severe down the length of her body. He testified that the pattern of burns was consistent with a flammable liquid being poured down her head and ignited. He stated that the injuries were inconsistent with a natural gas flash explosion. Dr. McGary, the pathologist who did the autopsy on the victim also stated that the pattern of burns was consistent with a flammable liquid having been poured over her head, but not with a gas explosion.

Investigators from the Police and Fire Departments concluded that no fire had taken place in the kitchen. There were pieces of clothing in the living room that had been burned as well as another cushion from the sofa. These experts also concluded that there had been no burning in the kitchen and no gas explosion on the stove. They also stated that the burned sofa cushion in the yard could not have been used to put out the fire as defendant claimed, but rather had been set on fire itself.

A chemical examination of the blue jeans that the victim was wearing and the sofa cushion showed unmistakenly that gasoline had been poured on them. A skin sample taken from the victim for these purposes was inconclusive.

In reviewing the evidence for sufficiency, we must view it in the light most favorable to the prosecution and in order to determine whether any rational trier of fact could have found the essential elements of the crime were proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Fuller, 414 So.2d 306 (La.1982).

Manslaughter is:

(1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed; or
(2) A homicide committed, without any intent to cause death or great bodily harm.
(a) When the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Articles 30 or 30.1, or of any intentional misdemean- or directly affecting the person; or
(b) When the offender is resisting lawful arrest by means, or in a manner, not inherently dangerous, and the circumstances are such that the killing would not be murder under Articles 30 or 30.1.

After reviewing the evidence presented at trial, we cannot conclude that the prosecution failed to carry its burden of proof under these circumstances.

Defendant asserts that his conviction was based entirely upon circumstantial evidence. La.R.S. 15:438. In State v. Shapiro, 431 So.2d 372 (La.1983), the Supreme Court of Louisiana held that a conviction based on circumstantial evidence presented must exclude every reasonable hypothesis of innocence. After reviewing the evidence, we can find no reasonable hypothesis of innocence in this case. The defense has asserted in brief to this court, several of its own “reasonable hypotheses of innocence.” These assertions are totally without merit. Defense has asserted that (1) the victim poured gasoline on herself and committed suicide; (2) the victim poured gasoline on herself in an attempt to commit suicide, changed her mind, and then later went into the kitchen to cook dinner and ignited herself; (3) defendant Isiah Lewis poured gasoline on her, later changed his mind, then she went into the kitchen to cook something and accidentally ignited herself; and (4) an unknown party poured gasoline on victim and she later ignited herself while cooking. We find all these hypotheses to be unreasonable. No container was ever found that would have contained the flammable liquid. It is highly unlikely that the victim would have poured gasoline on herself, then taken the trouble to hide the container so that it could not have been found and then ignited herself. Also, it is highly unlikely that after having been recently doused either by herself or her husband with a flammable liquid such as gasoline, the victim would attempt to prepare dinner at a gas stove. There was also no evidence whatsoever that anyone else had entered the house at any period immediately preceding the accident. We are unable to formulate any other reasonable hypothesis of innocence in this case.

For the foregoing reasons, the conviction and sentence of defendant Isiah Lewis are hereby affirmed.

AFFIRMED.


author: GAUDIN, Judge.

text:
    ST. JOHN THE BAPTIST PARISH SCHOOL BOARD v. PLANTERS BANCSHARES, INC.
    No. 84-CA-142.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 22, 1984.
    Writ Denied April 23, 1984.
    William B. Birner, Reserve, for plaintiff-appellee.
    Charles M. Rush, Lafayette, for defendant-appellant.
    Before CHEHARDY, GAUDIN and DU-FRESNE, JJ.
   GAUDIN, Judge.

This tax collection proceeding originated in the 29th Judicial District Court. St. John the Baptist School Board, in accord with the provisions of LSA-R.S. 47:1574, filed suit against Planters Bancshares, Inc. for collection of past due and unpaid sales and use taxes.

Following a hearing, Planters Bancs-hares was ordered to pay $10,479.42 plus interest, penalties and attorney fees.

On appeal, Planters Bancshares contends that the trial court erred (1) in not considering Planters Bancshare’s exception and answer and (2) in rendering a judgment favorable to the school board although appellee did not sufficiently show that sales and use taxes were in fact due and unpaid. Planters Bancshares alleges in its brief that “... plaintiff did not prove its case as required by law.”

For reasons following, we do not agree with these contentions and we affirm the appealed-from decree.

Suit was filed on January 5, 1984, citing R.S. 47:1574 and stating that Planters Bancshares owed $18,845.41, plus interest, penalties and attorney fees.

The statute, which provides for the collection of taxes by summary proceedings, reads:

“In addition to any other procedure provided in this Sub-title or elsewhere in the laws of this state, and for the purpose of facilitating and expediting the determination and trial of all claims for taxes, penalties, interest, attorney fees, or other costs and charges arising under this Sub-title, there is hereby provided a summary proceeding for the hearing and determination of all claims by or on behalf of the state, or by on or behalf of the collector, for taxes, excises, and licenses and for the penalties, interest, attorney fees, costs or other charges due thereon, by preference in all courts, all as follows: “(1) All such proceedings, whether original or by intervention or third opposition, or otherwise, brought by or on behalf of the state, or by or on behalf of the collector, for the determination or collection of any tax, excise, license, interest, penalty, attorney fees, costs or other charge, claimed to be due under any provision of this Sub-title, shall be summary and shall always be tried or heard by preference, in all courts, original and appellate, whether in or out of term time, and either in open court or chambers, at such time as may be fixed by the court, which shall be not less than two nor more than ten days after notice to the defendant or opposing party.
“(2) All defenses, whether by exception or to the merits, made or intended to be made to any such claim, must be presented at one time and filed in the court of original jurisdiction prior to the time fixed for the hearing, and no court shall consider any defense unless so presented and filed. This provision shall be construed to deny to any court the right to extend the time for pleading defenses; and no continuance shall be granted by any court to any defendant except for legal grounds set forth in the Louisiana Code of Practice.
“(3) That all matters involving any such claim shall be decided within forty-eight hours after submission, whether in term time or in vacation, and whether in the court of first instance or in an appellate court; and all judgments sustaining any such claim shall be rendered and signed the same day, and shall become final and executory on the fifth calendar day after rendition. No new trial, rehearing or devolutive appeal shall be allowed. Sus-pensive appeals may be granted, but must be perfected within five calendar days from the rendition of the judgment by giving of bond, with good and solvent security, in a sum double that of the total amount of the judgment, including costs. Such appeals, whether to a court of appeals or to the Supreme Court, shall be made returnable in not more than fifteen calendar days from the rendition of the judgment.
“(4) Whenever the pleadings filed on behalf of the state, or on behalf of the collector, shall be accompanied by an affidavit of the collector or of one of his assistants or representatives or of the counsel or attorney filing the same, that the facts as alleged are true to the best of the affiant’s knowledge or belief, all of the facts alleged in said pleadings shall be accepted as prima facie true and as constituting a prima facie case, and the burden of proof to establish anything to the contrary shall rest wholly on the defendant or opposing party.”

(Underlining provided.)

The district judge scheduled a hearing for February 3, and service was made on Planters Bancshares, through its registered agent, on January 27. On February 2, appellant filed a motion for continuance, saying (1) that service had not been made until January 30 and (2) that Planters Bancshares’ counsel and accountants had not had adequate time to prepare a defense.

The trial judge examined the record on February 3 and, finding no return of service, granted the motion for continuance and reset the hearing for February 24. Later, the return of service was placed in the record, indicating that service had been made on January 27 and not on the 30th.

At the hearing on February 24, the trial judge explained that he had granted the continuance only because the return of service was not in the record but that he had no authority, under the statute, to extend the deadline for pleading defenses if the February 3 hearing had been scheduled “... not less than two nor more than ten days after notice...” Accordingly, the trial judge did not consider either Planters Bancshares’ exception of improper venue or its answer, both of which had been filed on February 23.

Ironically, the trial judge had been involved in a previous proceeding under R.S. 47:1574, entitled St. John the Baptist School Board v. Marbury-Pattillo Construction Co. and reported at 239 So.2d 387 (La.App. 4th Cir.1970) and 259 La. 1133, 254 So.2d 607 (1971). It is apparent, from the statute itself and from the opinions of the Fourth Circuit and Supreme Court of Louisiana, that while the trial judge can postpone the hearing or trial, he cannot allow additional time to file pleadings.

The Supreme Court stated:

“... all defenses must be filed prior to the time fixed for the hearing, and those not so filed are not to be considered by the court.”

The Supreme Court was referring to the original hearing date, not the second. In Marbury-Pattillo, as in the instant case, there were two hearing dates. In each instance, the first hearing date was set “... not less than two days nor more than ten days after service...”, while the second hearing date was several weeks later.

Thus, a defendant in a R.S. 47:1574 action must plead any and all defenses, whether by exception or to the merits of the claim, prior to the original hearing date, so long as that setting is not less than two days nor more than ten days after service. Then, if the defendant has “... legal grounds set forth in the Louisiana Code of Practice...”, the hearing or trial date shall be continued to an appropriate time. But the pleading requirement remains.

This procedure is harsh. We note, however, that the validity or constitutionality of the statute is not at issue and that no actual prejudice in the application of the statute is being claimed. As the Supreme Court pointed out in Marbury-Pattillo, the statute’s “... provisions are strict, but the language and intent are clear.”

At the trial on February 24, the school board offered the affidavit of its business manager and tax collector, as warranted by paragraph (4) of the statute, plus the testimony of two other auditors, including the one who had actually audited the records of Planters Bancshares’ rig No. 14, which had been used in St. John the Baptist Parish, while the defense consisted entirely of the cross-examination of petitioner’s auditors. The record fully supports the $10,479.42 judgment and the awards of $2,973.55 in interest, $2,619.86 in penalties and $1,607.28 in attorney fees.

Appellee asks that the award for attorney fees be increased, but we find the amount awarded sufficient to cover the trial in the district court and the appeal to this Court.

In every aspect, the judgment of the 29th Judicial District Court of February 27, 1984 is affirmed.

AFFIRMED.