text:
    Ralph COOK d/b/a Florien Lumber Company, Plaintiff-Appellee, v. Joseph M. O’PRY, et ux., Defendants-Appellants.
    No. 83-633.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1984.
    Dean, Lomenick & Seemann, Pat F. Willis, Jr., Opelousas, for defendant-appellant.
    Kenneth N. Simmons, Many, for plaintiff-appellee.
    Before GUIDRY, FORET and CULPEP-PER , JJ.

       Judge William A. Culpepper, Retired, Judge Ad Hoc.

   FORET, Judge.

In this action on open account, the defendant, Joseph M. O’Pry, appeals a judgment in favor of plaintiff, Ralph Cook d/b/a Florien Lumber Company, for $5,086.38, with interest, costs, and attorney’s fees of 25%. We amend and affirm as amended.

The issues on appeal are:

1. Whether the trial court erred in allowing into evidence an invoice which was outside the scope of plaintiffs pleadings; and
2. Whether the trial court erred in allowing plaintiff attorney’s fees under LSA-R.S. 9:2781.

Joseph M. O’Pry, as owner of certain immovable property in Sabine Parish, made several credit purchases of materials and supplies from Ralph Cook d/b/a Florien Lumber Company, in May and June of 1982. In addition, within the same time frame, O’Pry had certain labor performed by Ralph Cook d/b/a Ralph Cook’s Auto Parts.

When O’Pry’s account became delinquent, Cook filed a materialman’s lien on O’Pry’s property in Sabine Parish, along with a suit on open account. A copy of the lien with all of the invoices was mailed to O’Pry on July 22, 1982, at Post Office Box 247, Hornbeck, Louisiana.

At the trial, plaintiff’s counsel attempted to introduce into evidence invoice number 2630, in the amount of $1,310.40, from Ralph Cook’s Auto Parts. Counsel for defendant objected, stating that the invoice was irrelevant because the claim was outside the scope of plaintiff's pleadings. The objection was taken under advisement by the trial judge. The case was tried on the merits and judgment was rendered in favor of the plaintiff, with the money due under invoice number 2630 included in the amount awarded.

On appeal before this Court, defendant contends that the trial court erred in allowing invoice number 2630 into evidence. We agree.

It is undisputed that invoice number 2630 was from Ralph Cook’s Auto Parts, and the billing was for labor performed. Suit was filed, however, not for Ralph Cook d/b/a Ralph Cook’s Auto Parts, but for Ralph Cook d/b/a Florien Lumber Company. Additionally, plaintiff’s petition sought recovery not for labor charges, but only for materials and supplies. Proof intended to go beyond the pleadings is inadmissible, if objected to. Bosworth v. New Orleans Federal Savings & Loan Association, 258 So.2d 191 (La. App. 4 Cir.1972). Thus, defendant’s objection was proper and the trial court’s action in allowing the invoice into evidence was improper.

Defendant also claims that the trial court erred in awarding attorney’s fees because plaintiff did not fulfill the requirements of LSA-R.S. 9:2781 . More specifically, defendant argues that plaintiff did not use due diligence in giving written notice to defendant and plaintiff’s demand letter did not include the correct amount owed.

The demand letter of July 22, 1982, which included invoice number 2630, stated the account balance was $5,086.38. As we have already determined, the $1,310.40 due under invoice number 2630 was not available to plaintiff under the pleadings filed. Thus, plaintiff’s amount was not correctly set forth as required by LSA-R.S. 9:2781.

Under LSA-R.S. 9:2781, when the claimant’s written demand correctly sets forth the amount owed (with supporting invoices), the claimant is entitled to “reasonable attorney fees for the prosecution and collection of such claims when judgment on the claim is rendered in favor of the claimant”. To be awarded attorney fees, the claimant must strictly comply with the provisions of the cited statute. The amount demanded must be the correct amount. Fleet Tire Service v. Schwegmann Brothers Giant Super Markets, Inc., 408 So.2d 54 (La.App. 4 Cir.1981); Ferd. Marks-Smither and Company, Ltd. v. Home Furnishing Store, Inc., 430 So.2d 239 (La.App. 4 Cir.1983); Scarborough v. Nelson, 371 So.2d 1261 (La.App. 3 Cir.1979). Because the demand letter sent by plaintiff in this case did not correctly set forth the amount owed by defendant, the requirements of the statute were not met, and attorney’s fees were not awardable.

In view of our above finding, we need not reach the issue of whether plaintiff used due diligence in the making of its written demand.

For the foregoing reasons, the judgment of the trial court is reversed and recast as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of Ralph Cook d/b/a Florien Lumber Company, against the defendant, Joseph M. O’Pry, in the amount of THREE THOUSAND SEVEN HUNDRED SEVENTY-FIVE AND 98/100 ($3,775.98) DOLLARS, plus legal interest thereon from date of judicial demand.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the lien and privilege, recorded in Mortgage Book 144, Page 391, in the Records of the Clerk of Court, Sabine Parish, Louisiana, be and the same is hereby recognized and preserved, and the property be duly seized and sold as provided by law, and the proceeds therefrom be applied to the payment of petitioner’s claim with preference to all others, except as otherwise provided by law.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that plaintiff’s demand for attorney fees is denied.

All rights of Ralph Cook d/b/a Ralph Cook’s Auto Parts to proceed against defendant to recover the amount of $1,310.40 are reserved.

All costs of the trial court and on appeal are assessed one-half against plaintiff-ap-pellee and one-half against defendant-appellant.

REVERSED IN PART, RECAST AND RENDERED.

      . LSA-R.S. 9:2781(A) & (B) provides:
      “§ 2781. Open accounts; attorney fees; professional fees
      A. When any person fails to pay an open account within thirty days after receipt of written demand therefor correctly setting forth the amount owed and a copy of the invoices in support thereof, that person shall be liable for reasonable attorney fees for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the claimant. Evidence of receipt of written demand by the spouse of the debtor, when they are living together as husband and wife, on behalf of the debtor may be introduced as evidence of written demand on the debtor.
      B. If delivery of written demand on the debtor is attempted, but not accomplished because circumstances made delivery of written demand impossible, a notation, on the envelope containing the written demand, made by the person attempting delivery stating the date of the attempted delivery, the reasons why delivery could not be accomplished, along with the initials of the person attempting delivery and making said notation may be introduced as evidence of written demand on the debtor. If the judge in his discretion finds that sufficient evidence of due diligence in delivery of written demand has been made, he may make a conclusion of written demand for purposes of justice and find that there has been written demand on the debtor.” (emphasis added)


source: Caselaw Access Project

author: GUIDRY, Judge.

license: Public Domain

text:
    Judy Kay MOUTON, Plaintiff-Appellee, v. Lionel J. MOSLEY, Defendant-Appellant.
    No. 83-634.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1984.

      Cline, Miller & Richard, Larry Thomas Richard and Floyd LeBleu, Rayne, for defendant-appellant.
    Edwards, Stefanski & Barousse, Russell K. Zaunbrecher, Crowley, for plaintiff-ap-pellee.
    Before GUIDRY, FORET and CULPEPPER, JJ.

       Judge William A. Culpepper, Retired, Judge Ad Hoc.

   GUIDRY, Judge.

On September 8, 1982, Judy Kay Mouton filed this suit against Lionel J. Mosley for a declaration of paternity and for child support. Personal service was made on defendant on September 10, 1982. Plaintiff entered a preliminary default against defendant on February 17, 1983. Thereafter, on February 24, 1983, the matter was heard by the trial court on confirmation of default. On that date, judgment was rendered in favor of plaintiff and against defendant, declaring Lionel Mosley to be the father of La Neese Mouton and awarding child support to Judy Kay Mouton in the amount of $300.00 per month. This judgment was signed on March 3, 1983.

On March 16, 1983, defendant filed an application for a new trial. The trial court fixed this application for hearing on May 16, 1983. Prior to a hearing on this application and on May 10, 1983, upon motion of defendant, an order of appeal was entered, granting an appeal from the judgment of March 3, 1983. A hearing was nonetheless had on the motion for new trial with a judgment being rendered denying the motion as untimely.

On appeal, defendant first contends that the trial judge erred in holding that plaintiffs motion for new trial was untimely and in failing to grant a new trial. In this regard, we note that the jurisdiction of the trial court was divested upon the granting of the order of appeal, and thereafter the trial judge was without jurisdiction to grant or deny a new trial. LSA-C.C.P. Art. 2088. We conclude that defendant’s motion for new trial was effectively waived or abandoned when, on defendant’s motion, the order of appeal was entered.

Defendant’s next contention that this court should annul the judgment of the trial court for alleged ill practices or improper procedure is also without merit. An action to annul a judgment must be brought in the trial court. LSA-C.C.P. Art. 2006.

The remaining issue is whether defendant is entitled to a reversal of the default judgment. A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. LSA-C.C.P. Art. 1702. In the instant case, no note of evidence was taken on the confirmation of the default. A party confirming a default is not required to have a note made of the evidence introduced. However, if no note of evidence is taken, it is incumbent on the appellant to secure a narrative in accordance with LSA-C.C.P. Arts. 2130 and 2131. Succession of Rock v. Allstate Life Ins. Co., 340 So.2d 1325 (La.1976). This was not done. Therefore, we consider this appeal on the record before us.

Where, as in the present case, there is no note of evidence and the judgment recites that plaintiff has produced due proof in support of its demand and that the law and evidence favor plaintiff and are against defendant, the presumption exists that the judgment was rendered upon sufficient evidence and that it is correct. Succession of Rock v. Allstate Life Ins. Co., supra.

For the above and foregoing reasons, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.

      . We nonetheless note that the record reflects defendant’s application for new trial was in fact untimely. LSA-C.C.P. Art. 1974.

      . These allegations appear only in appellant's brief and are not evidenced by the record.


author: FORET, Judge.

text:
    Mrs. Kathleen THOMPSON, Plaintiff-Appellee, v. TG & Y STORES COMPANY, Defendant-Appellant.
    No. 83-636.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1984.
    Brame, Bergstedt & Brame, David Fraser, Lake Charles, for defendant-appellant.
    Plauche, Smith & Nieset, James R. Nies-et, Lake Charles, for plaintiff-appellee.
    Before GUIDRY, FORET and CULPEP-PER , JJ.

       Judge William A. Culpepper, Retired, Judge Ad Hoc.

   FORET, Judge.

Defendant, TG & Y Stores Company, brings this appeal from a judgment of the trial court finding it liable for injuries suffered by plaintiff, Mrs. Kathleen Thompson, in a fall that occurred in defendant’s store. The trial court found that the accident and resulting injuries were caused solely by the negligence of defendant and awarded Mrs. Thompson $11,875.38 for medical expenses and $60,000 in general damages.

The issues on appeal are:

(1) Did the trial court err in its determination that the negligence of defendant’s employees was the sole cause of Mrs. Thompson’s injuries.
(2) Was the trial court’s award of $60,-000 in general damages excessive.

FACTS

On December 4, 1979, while shopping in defendant’s store, Mrs. Thompson tripped over a box that had been left in the aisle by one of defendant’s employees. The box which was full of pillow cases was approximately twelve inches long by six inches wide by six inches high. Mrs. Thompson did not see the box because her attention was directed toward merchandise oh display.

As a result of her fall, Mrs. Thompson, who was 82 years old at the time of the accident, sustained a fracture of the neck of the right femur just below the hip socket. Surgery was performed under general anesthetic to replace the ball of the right hip with a prosthesis. The operation involved the removal of the ball and its replacement with a metal ball and spike which was inserted in the bone marrow of the femur. The hip socket had to be reamed out so that it would accept the metal ball. Mrs. Thompson was hospitalized for thirteen days.

Mrs. Thompson recovered well from the operation but continued to experience pain in her hip. In June of 1980, approximately six months after the operation, x-rays revealed a loosening of the spike in the bone marrow. Over the next few months, her pain increased, and x-rays revealed a continuing loosening of the spike. In January of 1981, slightly over a year after the accident, Mrs. Thompson’s orthopedic surgeon recommended a complete hip replacement. This operation was performed on January 28, 1981. The original prosthesis was removed and replaced with another metal ball and spike that was cemented in place. To accept the metal ball, a plastic socket was inserted inside of the hip socket. She was hospitalized for fifteen days after surgery.

Mrs. Thompson continued to experience some pain. Signs that the prosthesis might again be loosening were confirmed by x-rays in October of 1981. Her surgeon recommended against an operation to correct this problem. Another surgeon, consulted for a second opinion, concurred in this recommendation. At trial, Mrs. Thompson’s surgeon testified that the problem with the prosthesis would not improve with time and could possibly worsen.

Before the accident, Mrs. Thompson was in excellent health for a woman of her age. She was extremely active in church and civic work. Her friends depended upon her to drive them and herself to concerts, social events, and on out-of-town trips. Since the accident, she no longer drives. She can no longer sit through church services. Because of the pain in her hip and a feeling of instability caused by the loose prosthesis, she uses a walker. Daily activities such as dressing have become difficult. The evidence indicates that as a result of the accident, there has been a substantial change in the quality of Mrs. Thompson’s life.

NEGLIGENCE OF THE DEFENDANT

The trial court found that defendant, through the actions of its employees, was negligent, and that its negligence was the sole cause of Mrs. Thompson’s accident and resulting injuries. We find no error in this determination of the court. A store owner owes his customers an affirmative duty to use ordinary care to keep the aisles and passageways of his store in a reasonably safe condition. Ferrington v. McDaniel, 336 So.2d 796 (La.1976); Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486 (La.1976); Kavlich v. Kramer, 315 So.2d 282 (La.1975). Self-service stores require shoppers to keep a lookout for goods which they wish to purchase. Displays of items in stores entice them to focus their attention on the displays rather than on the surface along which they walk. Kavlich v. Kramer, supra. In the present case, the defendant breached its duty to keep the aisles in a reasonably safe condition. Defendant’s employees left a box in the aisle of defendant’s store. Because of its size, this box was difficult to see, and thus created a hazard for an unsuspecting shopper. The accident that resulted could have easily been contemplated as a possible, if not probable, result of defendant’s lack of care.

Defendant’s contention that Mrs. Thompson was contributorily negligent is without merit. Mrs. Thompson’s actions were those of a reasonably prudent shopper. She was not negligent in attending to items on display at the time of the accident. She had no reason to expect that the defendant would place an obstacle in her path.

Since the negligence of defendant was the sole cause of plaintiff’s accident, defendant is liable to Mrs. Thompson for injuries she received.

QUANTUM

The trial court awarded Mrs. Thompson $11,875.38 in special damages and $60,000 in general damages. Defendant contends that the court’s award of general damages was excessive. We disagree.

The evidence clearly shows that the accident resulted in a substantial change in the quality of Mrs. Thompson’s life. Before the accident, she was, for her age, in excellent health and exceptionally active. Since the accident, her activities have been severely limited and she continuously suffers pain. The trial court’s award of $60,000 in general damages was not excessive.

DECREE

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

AFFIRMED.


author: YELVERTON, Judge.

text:
    William A. MOSLEY, Plaintiff-Appellant, v. John V. MACKIE, et ux, Defendants-Appellees.
    No. 83-646.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1984.
    Herman L. Lawson and Dennis G. Stewart, Mansfield, for plaintiff-appellant.
    William R. Boone, Many, for defendant-appellee.
    Before CUTRER, YELVERTON and KNOLL, JJ.
   YELVERTON, Judge.

This is an appeal from a judgment fixing a boundary and declaring John V. Mackie and his wife the owners of a disputed strip of land on their side of the boundary. The parties stipulated at the trial that before 1978 there had been an ancestral fence separating their contiguous estates and that this fence was the correct boundary between them. The ancestral fence was torn down in 1978. It was the location of the ancestral fence that formed the single disputed issue in the consolidated cases. This is also the sole issue on appeal.

The issue arose in two cases consolidated for trial. The instant case was a suit to fix the boundary between the contiguous lands of William A. Mosley and John V. Mackie and his wife. The second case, Mosley v. Mackie, 448 So.2d 899 (La.App. 3rd Cir.1984), in which we this day file a separate opinion, was originally brought as a posses-sory action by Mackie. The court ordered that Mackie’s possession be recognized and that the parties file a petitory action (should either choose) within 45 days. Mosley then filed a petitory action claiming ownership of the strip of land lying along the disputed boundary. To the petitory action Mackie filed a reconventional demand seeking damages for trespass. The trespass action was severed and the consolidated cases went to trial only on the boundary and petitory actions. The trial court found for Mackie in both cases, determining that Mackie was the owner of the disputed strip, and fixing the boundary where the court determined the ancestral fence had been. A judgment was signed in Mackie’s favor in the consolidated cases. Mosley appeals. We affirm.

The location of boundary is a question of fact to be determined by the trier of fact and such a determination should not be reversed on appeal in the absence of manifest error. Fontenot v. Marks, 430 So.2d 810 (La.App. 3rd Cir.1983); Williams v. Peacock, 441 So.2d 57 (La.App. 3rd Cir. 1983). The task of the trial court was simplified in the instant case because the parties stipulated that the correct boundary was where the ancestral fence had been and the only fact question the court had to determine was the location of the ancestral fence.

Mackie testified he tore down the ancestral fence in 1978 and built a new one. His property was west of the old fence line. He built the new fence six to eight inches west of the line so the new fence would be altogether on his property. Several witnesses supported his testimony. James Diamond helped put up the new fence and said it was right where the old one had been. Wilson Santos placed it as close as six inches, as did Opal Rabón, who tore down the old fence. Freddie Paul hauled dirt to the location and was acquainted with the place; he said the old and new fences were less than a foot apart. James Litton, a lifelong resident of the area, thought the distance apart was no more than six to eight inches.

Mackie’s position was also supported by a registered surveyor, R.Y. Leone, who surveyed the property in 1976 before the Mackies’ purchase, and looked at it again in 1983 on the second day of the trial of the case.

The opposing testimony of Mosley and his witnesses placed the old fence several feet from the new fence, variously estimated at from four to 12 feet, and declared that the boundary was this distance west of the new fence, rather than east of it.

The trial court fixed the location of the ancestral fence, and hence the boundary line, in the same place occupied by the present fence built by John V. Mackie, which also conformed with the East line of a survey done by R.V. Leone. A complete review of the record establishes that this finding of fact is not clearly wrong. The judgment of the trial court is, accordingly, affirmed at appellant’s costs.

AFFIRMED.


text:
    William A. MOSLEY, Plaintiff-Appellant, v. John V. MACKIE, et ux, Defendants-Appellees.
    No. 83-647.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1984.
    Herman L. Lawson and Dennis G. Stewart, Mansfield, for plaintiff-appellant.
    William R. Boone, Many, for defendant-appellee.
    Before CUTRER, YELVERTON and KNOLL, JJ.
   YELVERTON, Judge.

For the reasons assigned in the opinion this day rendered in Mosley v. Mackie, 448 So.2d 897 (La.App. 3rd Cir.1984), the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.


author: KNOLL, Judge.

text:
    Bernadine McMILLAN, Plaintiff-Appellant, v. FIREMAN’S FUND INSURANCE COMPANY, Defendant-Appellee.
    No. 83-656.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1984.
    Preston N. Aucoin, Ville Platte, for plaintiff-appellant.
    Bolen & Erwin, James A. Bolen, Jr., Alexandria, for defendant-appellee.
    Before CUTRER, YELVERTON, and KNOLL, JJ.
   KNOLL, Judge.

This appeal involves a workmen’s compensation suit. The sole issue for determination is whether the trial court properly maintained defendant’s exception of prematurity.

FACTS

The plaintiff, Bernadine McMillan, was employed by Holloway Sportswear as a knit cutter. On January 28, 1982, while carrying a bolt of linen, McMillan slipped and fell, injuring her back.

Fireman's Fund, Holloway’s workmen’s compensation carrier, timely commenced paying weekly benefits at the rate of $97.33 based on a weekly wage basis of $146 per week, and paid all medical expenses incurred by appellant which totaled $12,493.85. Pursuant to appellant’s request, benefits were paid to her every fourteen days. The last check mailed to appellant was on March 31, 1983 and constituted payments due between March 25, 1983 and April 7, 1983. The next check mailed was dated April 27, 1983 and covered the three week period between April 8, 1983 and April 29, 1983.

Appellant filed suit on April 19, 1983 alleging wrongful termination of workmen’s compensation benefits. The appellee filed an exception of prematurity alleging that all medical expenses and workmen’s compensation benefits were paid timely with the exception of a two week interruption occurring in April of 1983.

PREMATURITY

In order to avoid an employer’s exception of prematurity, the Louisiana workmen’s compensation statute requires that the claimant allege and prove that, at the time suit is filed, the claimant “is not being or has not been paid, and that the employer has refused to pay” the benefits claimed. Further, the claimant must prove that the allegations are with “... reasonable cause or foundation in fact ...,” or else the suit will be dismissed as premature. The determination of whether the claimant’s allegations are justified under the facts shall be determined by the court. LSA-R.S. 23:1314.'

In Patton v. Silvey Companies, 395 So.2d 722 (La.1981), the court interpreted the provision “justification under the facts” contained in R.S. 23:1314 and stated:

“An alternate interpretation which we consider more reasonable and appropriate is that ‘justification under the facts’ coupled with the outset requirement, among others, that plaintiff must allege and prove ‘the employer has refused to pay’ requires the court to determine more than simply whether plaintiff is receiving compensation; rather, the court must determine whether the employer has unreasonably determined to terminate benefits, or has unreasonably refused to pay.
It is by virtue of the latter interpretation that Malone espouses and Jack v. Fidelity and Casualty Co. of New York, [306 So.2d 806 (La.App. 3rd Cir.1975)] has applied the three considerations noted above, namely whether there existed a reasonableness in ceasing to make payments, promptness in resuming them, and manifestation of a desire to cooperate. ” (Emphasis added).

To determine an exception of prematurity the court must go beyond the question of whether the claimant is receiving workmen’s compensation benefits. If a benefit has not been timely made, the trial court must inquire into the reasonableness of the termination of benefits. Accordingly we find the trial court was correct in determining that plaintiff’s action was premature.

Lisa Stephan, a senior claims representative for Fireman’s Fund, testified that plaintiff should have been sent a workmen’s compensation check on April 13, 1983 covering the period between April 8, 1983 and April 29, 1983. She reviewed plaintiff’s claim filed prior to April 9, 1983, and reprogrammed the computer to continue benefits to plaintiff. She later learned that the check for benefits covering the period of April 8,1983 to April 29,1983 had fallen out of the computer and had not been sent to plaintiff. A new check was immediately issued covering the period of April 8, 1983 to April 29, 1983. There is no testimony that Fireman’s Fund ever unreasonably refused to provide workmen’s compensation benefits due plaintiff.

We are mindful of our decision in Fredericks v. Associated Indemnity Corporation, 401 So.2d 575 (La.App. 3rd Cir.1981), but note that it is distinguishable on the facts. In Fredericks, supra, compensation benefits were not paid because the computer was not reprogramed to continue payments. In the present case the computer had been reprogrammed to continue payments.

We find the record supports that Fireman’s Fund has not refused to pay the benefits to the appellant nor has it acted unreasonably.

For the foregoing reasons the judgment of the trial court dismissing plaintiff’s suit on the exception of prematurity is affirmed.

AFFIRMED.


text:
    The STONE OIL CORPORATION, Plaintiff-Appellee, v. ACADIANA CONSULTING & INVESTMENT COMPANY, INC. and Sherry Higginbotham Broussard, Defendant-Appellant.
    No. 83-657.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1984.
    Cabes, Tracy & Perret, Robert L. Cabes, Lafayette, for defendant-appellant.
    Sandoz, Sandoz & Schiff, Lawrence B. Sandoz, Jr., Opelousas' for defendant-ap-pellee.
    Andrew L. Gates, III, Lafayette, for plaintiff-appellee.
    Before CUTRER, YELVERTON and KNOLL, JJ.
   YELVERTON, Judge.

The issue in this appeal is whether a wife is entitled to summary judgment classifying as community property certain immovable property rights, based on proof that the property was purchased in the husband’s name in 1971 during the existence of the community of acquets and gains, and that the instrument of purchase did not recite the “double declaration” then necessary to characterize the property as the separate property of the husband. Because of the intervening expression of the legislative will through what is now Civil Code Article 2340, we conclude that proof of these facts alone does not establish the wife’s right to summary judgment. We reverse and set aside the summary judgment and remand the case for further proceedings.

The issue is presented within the framework of a concursus proceeding instituted by the Stone Oil Corporation. The concur-sus was to determine the ownership of certain royalties derived from production on a tract of land in Vermilion Parish. The contesting parties claiming the royalties are Sherry Higginbotham Broussard, former wife of Whitney Lynn Broussard, and Acadiana Consulting & Investment Co., Inc. Acadiana is the successor in title from Whitney Lynn Broussard. Mrs. Broussard filed a motion for summary judgment which was granted on March 29, 1983. Acadiana appealed.

The mineral rights at issue were purchased by Mr. Broussard from his sister. The purchase was by an act of cash sale and assumption dated January 20, 1971. Whitney Lynn Broussard was the vendee and was identified in the sale as married to and living with his wife Sherry Ann Hig-ginbotham. The recited price was $8,000, of which $6,000 was paid in cash and the rest was the assumption of a mortgage note having a balance of $2,000.

Mr. Broussard presently claims that the property purchased was his separate property. The Broussards had a community property regime. The conveyance instrument did not contain a declaration that the property was acquired with the husband’s separate funds for his separate estate.

The Broussards were divorced in 1978. In 1980 the husband conveyed to his mother all of his interest in the mineral rights at issue. His mother later transferred her rights to Acadiana.

The former wife, Mrs. Broussard, filed a motion for summary judgment claiming that she owned half of the mineral rights acquired by Mr. Broussard from his sister, and therefore she is entitled to the mineral royalties. She alleges that since the property was acquired during the community and the contract of sale failed to include a declaration that the property was her former husband’s separate property, the property is conclusively presumed to have been community property. The trial court granted Mrs. Broussard’s motion for summary judgment and declared her the owner of a community one-half interest.

La.C.C.P. art. 966 provides that any party may move for a summary judgment at any time, and the mover is entitled to summary judgment in his favor if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to a material fact, and that the mover is entitled to judgment as a matter of law. Indus. Sand and Abrasives v. L. & N.R. Co., 427 So.2d 1152 (La.1983). Whether or not a summary judgment is appropriate in the present case depends upon whether there are genuine issues as to the material facts which the moving party, the wife, had the burden of proving.

The facts material to a decision in the case are substantially different depending on whether a conclusive presumption applies or whether a rebuttable presumption applies. In 1971 there existed a jurisprudential requirement that unless the instrument of acquisition of immovable property by the husband contained the “double declaration” that the property was bought with his separate funds for his separate estate, the property was conclusively presumed to belong to the community estate. Primeaux v. Libersat, 307 So.2d 740 (La. App. 3rd Cir.1975), writ granted 310 So.2d 847 (La.1975), reversed on other grounds 322 So.2d 147 (La.1975). A summary judgment based upon that conclusive presumption obviously requires only the proof of the foundation facts for the establishment of the presumption. There is no question that in this case this much proof existed, for indeed these facts were uncontested. The purchase was made during the marriage and the purchase instrument did not contain the double declaration.

However, LSA-C.C. art. 2340, the source of which was Act 709 of 1979, which became effective January 1, 1980, suppressed the requirement of a double declaration established by the jurisprudence. It provides as follows:

“Things in the possession of a spouse during the existence of a regime of community of acquets and gains are presumed to be community, but either spouse may prove that they are separate property.”

As explained by the comments to this article, it establishes a rebuttable presumption that property acquired during the existence of the regime of community is community property. The question in the instant case is whether that article has retroactive application to the purchase in 1971.

In the case of Wood v. Wood, 424 So.2d 1143 (La.App. 1st Cir.1982) our colleagues of the First Circuit have expressed the opinion, with appropriate citations of authority, that article 2340 applies retroactively. Their reasoning is that the article is procedural in nature because it establishes a rebuttable (as opposed to a conclusive) presumption. A procedural law is given retroactive effect unless its language indicates a contrary intention. The legislation creating this new article did not indicate that it was not to be retroactive. Therefore, article 2340 is to be given retroactive effect.

According to the further opinion in Wood v. Wood, supra, retroactive application of the article does not operate to divest a wife of a vested right. The double declaration rule did not create any substantive right in favor of the wife because the double declaration rule was not a legislative creation, but a jurisprudential one. “The decisions of state courts in Louisiana do not create or eliminate substantive rights, since this is the proper function of the legislature.” Id., 424 So.2d at 1151.

The First Circuit accordingly opined that the article should have retroactive application. We reach the same conclusion for the same reasons as expressed by that court at 424 So.2d 1149-1151.

Examining the summary judgment evidence in the light of article 2340, we find that there are genuine issues of fact that remain in dispute. The depositions of the former married couple were put in evidence at the summary judgment hearing. Mr. Broussard testified that he purchased the property with his separate funds. He stated that he used money from the checking account of Bruce’s 5 & 10 Stores, a separate asset. Later when shown a cancelled $6,000 check drawn, on a community checking account and asked whether that was the check with which he purchased the property, Mr. Broussard stated that it possibly could have been but that the money ultimately came from his separate assets. No evidence was presented as to whether the $2,000 balance due on the mortgage note was paid with community or separate funds.

Although from the evidence presented the mineral rights purchased by Lynn Broussard appear to be community property, we cannot say as a matter of law that the property belonged to the former community. There is still a genuine issue of material fact as to whether the property was purchased with community or separate funds. The motion for summary judgment should have been resolved against the mover and in favor of a trial on the merits.

For the above reasons the summary judgment of the trial court is reversed and set aside, and the case is remanded for further proceedings consistent with this decision.

REVERSED AND REMANDED.


text:
    Larry FONTENOT, Plaintiff-Appellant, v. CAGLE CHEVROLET, et al., Defendants-Appellees.
    No. 83-732.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1984.
    Caskey & Pizzolatto, Nick Pizzolatto, Jr., Lake Charles, for plaintiff-appellant.
    Camp, Carmouche, Barsh, Hunter, Gray & Hoffman (Randy Fuerst, Lake Charles, for defendant-appellee.
    Before GUIDRY, FORET and CULPEPPER , JJ.

       Judge William A. Culpepper, Retired, Judge Ad Hoc.

   FORET, Judge.

In this workmen’s compensation case, claimant, Larry Fontenot, sought a modification of an earlier award against defendants, Cagle Chevrolet, Inc. and Great American Insurance Company.. Disability benefits under the original award had terminated on May 2, 1982. Claimant contended that he was totally and permanently disabled and entitled to benefits from the terminal date of the original award. From a judgment in favor of defendants, plaintiff perfects this appeal.

The issues on appeal are:

(1) Whether the trial court erred in considering evidence intended to show that the cause of claimant’s disability existing at the time of the modification hearing was not claimant’s work-related injury, but an injury that claimant had sustained prior to that injury.
(2) Whether the trial court erred in finding that claimant failed to meet the burden of proof required for a modification of the original award of workmen’s compensation benefits.

FACTS

On February 12, 1981, while in the employ of Cagle Chevrolet, claimant, Larry Fontenot, fell from a bulldozer and injured his back. Claimant’s orthopedic surgeon characterized this injury as a “mild low back injury”. On the original trial of this claim, the trial court found that claimant had been temporarily totally disabled from February 12, 1981, the date of the work-related accident, to November 12, 1981, the date of the trial. The court awarded claimant benefits for the period of total disability. The court also found claimant to be partially disabled for a period of time not to exceed six months following the date of the trial (up to May 2, 1982), and awarded him benefits for this period of partial disability .

At the time of his 1981 accident, claimant was being treated for back problems which were a result of a severe back injury which he had suffered in 1978, before his employment with Cagle Chevrolet. He had undergone surgery for this injury in February of 1980. At the time he went to work for Cagle Chevrolet, claimant had not been released by his surgeon to return to work. In July of 1982, shortly after the termination of the original award, he underwent a second back surgery.

At the trial of this matter, claimant did not testify in his behalf. The trial court denied the modification, finding that claimant had not met the burden of proof of establishing that his present disability resulted from the injury of February 12, 1981, rather than from the 1978 injury.

WAS IT PROPER FOR THE COURT TO CONSIDER THE CAUSE OF CLAIMANT’S DISABILITY?

In his brief, the claimant contends that the trial court improperly considered evidence related to the cause of his disability. He cites DeVille v. Travelers Insurance Company, 240 So.2d 541 (La.App. 3 Cir.1970), writ denied, 257 La. 276, 242 So.2d 247 (1971) for the proposition that a trial court’s determination of the cause of a disability at the time of trial is res judicata and cannot be relitigated at a modification hearing. Claimant misplaces his reliance on DeVille. In DeVille, we held that while the cause of a claimant’s disability at the time of trial is res judicata, this did not preclude the introduction of evidence to show that a disability existing at the time of a subsequent modification hearing was the result not of the work-related injury, but an injury occurring subsequent to the original judgment.

Admittedly, the case presently before this Court is different from DeVille in that the defendant in the present case adduced evidence to show that the claimant’s disability was a result, not of an accident occurring after the original judgment, but before it. Despite this difference between the two cases, we believe that the underlying rationale of DeVille supports the trial court’s action in the present case. DeVille stands for the proposition that the court’s original finding as to the cause of a claimant’s disability is res judicata only as to the cause of the disability existing at the time of the original judgment. It is not res judicata as to the cause of disability existing at the time of a modification hearing. Accordingly, a defendant is entitled to adduce evidence showing that a claimant’s disability which exists at the time of a modification hearing is not the result of the work-related injury, but of some other cause. We think that it makes no difference whether this cause occurred before or after the original judgment if an employer can in fact show that a claimant’s disability is a result of this cause and not of the work-related injury. If we held otherwise, we would be drawing an artificial line in time, which would, in cases such as the present one, prevent the introduction of evidence bearing directly on the actual cause of a claimant’s disability.

The issue before the trial court in the instant case was not the cause of claimant’s disability at the time of the original trial, but the cause of his present disability. Defendants were entitled to present evidence tending to show that claimant’s present disability was not caused by the accident he suffered while in the employ of Cagle Chevrolet.

DID THE TRIAL COURT ERR IN FINDING THAT CLAIMANT DID NOT CARRY HIS BURDEN OF PROOF?

In a workmen’s compensation case, the trial court’s factual findings as to disability are entitled to great weight and will not be disturbed absent manifest error. Harris v. Louisiana-Pacific Corporation, 420 So.2d 1220 (La.App. 3 Cir.1982); Hoofkin v. Schwegmann Brothers Giant Super Markets, Inc., 398 So.2d 1218 (La.App. 4 Cir.1981); Newell v. United States Fidelity & Guaranty Co., 368 So.2d 1158 (La. App. 3 Cir.1979); Stokes v. Continental Insurance Co., 345 So.2d 1200 (La.App. 1 Cir.1977).

In reaching its decision, the trial court examined the testimony of two orthopedic surgeons, Dr. Schneider, who testified for claimant, and Dr. Morin, who testified for defendants. According to Dr. Schneider, claimant’s 1978 injury was a severe back injury while his 1981 injury was a mild one. He testified that since the original trial, claimant’s condition had deteriorated from a 30% disability to the back to a 35% disability. He also testified that he had performed a second surgery on claimant in July of 1982. However, he could not specify which accident had caused the degenerative changes which had necessitated surgery and caused claimant’s continuing disability. Dr. Morin thought claimant’s pain was residual from the 1980 surgery and may have been exaggerated. Although he assigned a 15% to 20% partial permanent disability to the body as a unit, he felt that claimant could resume work as a bulldozer operator.

Claimant contends that, in light of the fact that Dr. Schneider was the treating physician, the trial court erred in giving more weight to Dr. Morin’s testimony than to that of Dr. Schneider. Having examined the testimony of the two physicians, we feel that claimant’s conclusion that the trial court gave more weight to Dr. Morin’s testimony is unwarranted. As noted above, Dr. Schneider could not specify which accident had caused claimant’s present disability. On the basis of the testimony of both doctors, the court could have concluded that any continued disability of claimant was not due to the work-related injury he had sustained while employed by Cagle Chevrolet.

Also significant is claimant’s failure to testify at the trial of this matter. This unexplained failure of claimant to testify, when he was in an excellent position to give evidence concerning his pain and his diminished physical ability, created a presumption that his testimony would be unfavorable. Maxwell v. Gibson, 421 So.2d 1175 (La.App. 2 Cir.1982), writ denied, 426 So.2d 179 (La.1983); Clifton Upholstery Company v. Kayjun Industries, Inc., 254 So.2d 514 (La.App. 3 Cir.1971).

In his brief, claimant maintains that by showing that his disability had continued for a longer period of time than the court had supposed in its original determination, he had met his burden of proving change in that disability. While we do not disagree with this, we point out that the trial court’s decision did not rest on a finding that claimant had not carried his burden of proof to show that there had been a substantial change in his disability. Rather, the trial court concluded that claimant failed to prove that any disability existing at the time of the modification hearing was a result of his work-related accident. The court concluded that:

“... evidence indicates a substantial likelihood that any disability presently existing results from the earlier injury and surgery.”

We find that the record supports this conclusion of the trial court. Accordingly, we concur in the court’s decision not to modify the award.

Claimant’s demand for penalties and attorney’s fees is moot in view of our affirmation of the trial court’s judgment.

DECREE

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

AFFIRMED.

      . We affirmed this finding at 417 So.2d 1338 (La.App. 3 Cir.1982), writ denied, 421 So.2d 1125 (La.1982).


author: DOUCET, Judge. DOMENGEAUX, Judge,

text:
    STATE of Louisiana (Department of Health and Human Relations) In re Phillip Johnson, Plaintiff-Appellee, v. Phillip JEFFERSON, Defendant-Appellant.
    No. 83-813.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1984.

      P. Spencer Torry, Alexandria, for defendant-appellant.
    Carl Koehler, Alexandria, for plaintiff-appellee.
    Before DOMENGEAUX, STOKER and DOUCET, JJ.
   DOUCET, Judge.

The State of Louisiana instituted this action against Phillip Jefferson pursuant to La.R.S. 46:236.1 F to establish the paternity of Phillip Johnson, whose mother is Del-phine Johnson, and to obtain a judgment of child support. After a trial on the merits the trial judge held that the State had satisfied the burden of proving Phillip Jefferson’s paternity and ordered him to pay $60.00 per month for support of the child. From this judgment the defendant appeals.

Defendant-appellant claims that the State did not prove, as required by Article 209 of the Louisiana Civil Code, by a preponderance of evidence the filiation between Phillip Johnson and Phillip Jefferson. LSA C.C. Art. 209, as amended in 1981, reads in part as follows:

“A child not entitled to legitimate filiation nor filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must prove filiation by a preponderance of the evidence in a civil proceeding instituted by the child or on his behalf...”

Since Phillip Jefferson was not filiated by legitimation or by formal acknowledgment under Article 203, the State on his behalf must prove filiation by a preponderance of the evidence. In Succession of Matte, 346 So.2d 1345 (La.App. 3rd Cir.1977) we stated that informal acknowledgment can prove filiation and that “courts have generally been reluctant to find an acknowledgment (or proof of paternity) unless the father continuously and unequivocally recognize the child as his own.” Compare: Malek v. Yekani-Fard, 422 So.2d 1151 (La.1982).

Defendant-appellant contends that the plaintiff did not show by a preponderance of the evidence that Mr. Jefferson “continuously and unequivocally” recognized Phillip Johnson as his own and thus did not establish filiation. He claims that the only testimony regarding the informal acknowledgment was given by the close relatives of the minor’s mother.

The trial court’s finding of an informal acknowledgment is a factual determination. If there is a “reasonable factual bases for the trial judge’s conclusion regarding informal acknowledgment .... his conclusion should not be disturbed in appeal.” Succession of Matte, supra. The record in this case reveals that the trial court’s finding was proper.

Delphine Johnson, the child’s mother, testified that -in 1977 she and Phillip Jefferson dated and had sex. She claimed that Mr. Jefferson visited the child in the hospital when he was born, brought him Christmas and Easter presents, and addressed the child as his own.

The testimony of the other witnesses was discussed thoroughly by the trial court and, therefore, will be adopted as follows:

“Mrs. Johnson’s testimony is corroborated by her mother, Octavia Johnson, who says that she saw the defendant visit with her daughter in the hospital. The defendant has told her that he’s the father of the child. He visited the child and Delphine at the home about three times a week. The relationship apparently abated, but he has continued to visit and give gifts to the child. This was cross-examined closely by Mr. Jefferson’s attorney.
Patricia Robert, a cousin of Delphine has heard the defendant proclaim that he is the father of the child. She corroborates some of the visitations with the child and some of the presents as does Richard Johnson, a brother of the plaintiff, who has seen the defendant visit with the baby even when Delphine was away in Tacoma, Washington with one Greg Humphreys. He called the baby his son and the baby called him “Father.” He was familiar with the gifts that were given or at least one of them and he knows that Delphine spent the night with Phillip and, of course, that would have to be circumstantial as he was not there, but he saw them leave the night before and he saw the defendant bring Delphine back the next morning....
A sister-in-law of Delphine, Carolyn Johnson, also testified and she equally corroborated the defendant had said he’s the father of the child, that he’d-come by and visit with the child, take the child off in his car, and she is familiar with the fact that Delphine spent the night at his house again on the same criteria that I’ve laid out.
Mr. Jefferson basically testified on cross and then on his own testimony basically denying the relationship claiming that he had two marriages, a separation in between, that he couldn’t afford to give these gifts. He admits he did give the Christmas gift out of sympathy for Octavia, the grandmother, who he thought was a problem. She was having a problem because of her husband being ill and the daughter, the mother of the child, being away.
Mr. Batiste (testifying for the defendant) basically added very little to the lawsuit.”

As the above reveals, the trial court meticulously considered the testimony before determining that Phillip Jefferson informally acknowledged Phillip Johnson.

Although the witnesses testifying as to the filiation were presented by the plaintiff, the trial court found them believable. Reasonable evaluations of such credibility should not be disturbed on appeal. Carter v. Koehring, 283 So.2d 716 (La.1973). In this case, the trial court did make a reasonable evaluation, for as the record reveals, the testimony of each witness was conscientiously studied. Furthermore, the defendant had no witnesses except himself to contradict the plaintiff’s evidence. The trial court, therefore, committed no error in finding that the plaintiff proved by a preponderance of evidence the filiation between Phillip Johnson and Phillip Jefferson and in ordering Phillip Jefferson to pay child support.

For the reasons assigned, the judgment of the district court is affirmed. The costs of this appeal are assessed against the appellant, Phillip Jefferson.

AFFIRMED.

DOMENGEAUX, J., concurs and assigns reasons.

DOMENGEAUX, Judge,

concurring.

I agree with the majority opinion because Phillip Johnson’s mother Delphine Johnson, was not married. Had she been, I would take the position that under La.C.C. Article 209 as it presently reads by amendment of Act 720 of 1981, the law would not allow the establishment of Phillip Johnson’s paternity or the imposition of child support on Phillip Jefferson. For a decision of the effect and limitations of La.C.C. Article 209 see Fontenot v. Thierry, 422 So.2d 586 (La.App. 3rd Cir.1982), an opinion which. I authored.

The majority opinion cites for comparison with Succession of Matte, the 1982 Louisiana Supreme Court case of Malek v. Yekani-Fard, 422 So.2d 1151. Malek, I respectfully suggest, erroneously follows Warren v. Richard, 296 So.2d 813 (La.1974), for the proposition that in proving filiation, the mother’s marital status is irrelevant ... See my comments in Fontenot v. Thierry, supra, concerning' the Warren v. Richard case. It may be that, through inadver-tance, the Supreme Court overlooked the significance of the 1981 amendment of La. C.C. 209, which I now submit should have the effect of legislatively overruling Warren v. Richard to the extent that it allowed proof of filiation regardless of the mother’s marital status.

I respectfully concur.


author: DOMENGEAUX, Judge.

text:
    Bertha D. CUNNINGHAM, Plaintiff—defendant-in-rule—Appellee, v. Fred CUNNINGHAM, Defendant—plaintiff-in-rule—Appellant.
    No. 83-814.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1984.
    David A. Sheffield, Alexandria, for defendant-appellant.
    Führer, Flournoy & Hunter, John Morton, Alexandria, for plaintiff-appellee.
    Before DOMENGEAUX, STOKER and DOUCET, JJ.
   DOMENGEAUX, Judge.

Fred Cunningham, the original defendant, filed a rule against Bertha D. Cunningham, the original plaintiff, to reduce or terminate a previously granted alimony award. From a judgment on the rule in favor of Bertha D. Cunningham, Fred Cunningham has perfected this appeal.

On January 4, 1980, Bertha Cunningham obtained a divorce from Fred Cunningham. The divorce decree provided that Fred was to pay Bertha Two Hundred ($200.00) Dollars per month as alimony and an additional Two Hundred ($200.00) Dollars per month as child support for a minor child. In February of 1981 Fred stopped paying alimony. In November of 1981 when the child became a major, he stopped paying child support. On October 27, 1982, Fred and Bertha entered into an agreement which stated that the payment of child support had been legally terminated because of the child’s majority and that Fred would resume paying alimony of Two Hundred ($200.00) Dollars per month. More specifically the agreement provided:

“Appearers further declare that Fred terminated paying alimony to Bertha in February, 1981 as a result of Bertha’s becoming self-employed and allegedly having sufficient funds to provide for her maintenance and support. However, Bertha hereby waives any claim for past alimony through October, 1982 with the understanding and agreement that Fred shall recommence payment of alimony to Bertha in the sum of $200.00 per month commencing November 1, 1982, payable $100.00 on the 1st and 15th of each month without the necessity of Bertha employing the services of an attorney and proceeding with legal action to have said alimony payments recommenced.”

Since the date of their agreement Fred paid the Two Hundred ($200.00) Dollars per month. In March of 1983 he filed the within rule for a modification of alimony. As previously indicated, the trial court rendered judgment against him and in favor of Bertha and he now devolutively appeals that judgment.

ISSUES

Fred contends that the trial court erred in considering the agreement between him and Bertha to be a consent decree. Furthermore, he claims that since the document was not a consent decree the trial court should have examined the changed circumstances between the date of the original divorce judgment, January 4, 1980, and the date of the rule, March of 1983, not the changed circumstances between the date of the document, October 24, 1982, and the date of the rule.

VALIDITY AND RATIFICATION OF ALIMONY CONSENT DECREE

In the area of alimony awards the trial court is vested with much discretion. Awards will not be disturbed on review unless there has been a clear abuse of discretion or manifest error in the trial court’s factual appreciations. Bass v. Bass, 417 So.2d 67 (La.App. 3rd Cir.1982). A review of the record reveals an exercise of proper discretion.

Alimony after divorce can be made the subject of a contract and is considered a consent decree. King v. King, 390 So.2d 250 (La.App. 3rd Cir.1980), writ denied, 396 So.2d 884 (La.1981); Beringer v. Beringer, 415 So.2d 429 (La.App. 1st Cir.1982). In determining that the document between the Cunninghams was such a contract, the trial court carefully examined the agreement and stated “the purpose of the agreement was to avoid Bertha’s employing an attorney and [in] having the alimony payments commenced.” The court further noted that the contract was ratified because from the date of the signing Mr. Cunningham has paid Two Hundred ($200.00) Dollars a month as provided for in the agreement.

Appellant argues that the agreement was not a consent decree because it was not attached to the divorce judgment. Although the agreement was not executed on the same day as the divorce judgment, it does refer to and incorporate that judgment. As the trial court stated, “the alimony of $200.00 is precisely the amount provided for by the divorce decree dated January 4, 1980.” The trial court, therefore, was correct in finding the agreement to be a consent decree.

CHANGE OF CIRCUMSTANCES

Since the agreement is a consent decree, Fred Cunningham must prove a change of circumstances from the date of the agreement in seeking a reduction of the alimony. Bass v. Bass, supra. Hence, the trial court did not have to consider Mrs. Cunningham’s finding employment between the time of the divorce January 4, 1980, and the date of the consent decree, October 27, 1982.

In his reasons for judgment the trial judge discussed the change of circumstances. The discussion was thorough, and therefore we will adopt it as follows:

“Fred Cunningham testified that on October 27, 1982, he was holding down two jobs — a full time job with Duluth Oil Exchange and a part-time job with someone else. He stated that he was making approximately $162.85 per week with Duluth. He did not say how much he was making on his part-time job. Since that time, he has lost both jobs. However, he is now working for the Lube Center. The statements introduced into evidence by him .... on the other hand, show that he is now making approximately $250 per week. This is almost one hundred dollars more per week than he was making at Duluth. Since nothing was said at trial about how much Fred made at his part-time job, it is impossible for this Court to say whether he is presently making more or less than he was making in October of 1982. Even if he is making less, that reduction of income is certainly negligible. It is the finding of this Court that the change, if any, in Fred Cunningham’s financial situation is insufficient in and of itself to warrant a change of alimony.
As part of his statement of income and expenses, plaintiff-in-rule lists school expenses for his son. However, plaintiff admitted on the witness stand that his son is not presently in school and will not start school until the next school year. Moreover, by the time he does start school, there may be other changes to be taken into account. For example, once the child is in school, plaintiff’s present wife will be freed from her daily chore of taking care of the child. She may very well decide to get a job and thereby add to the family’s overall income. Therefore, the school expenses listed in the statement do not show any present change of circumstances for this Court to consider.
The only other possible change indicated by the evidence is a possible pay raise. It is undisputed that Bertha Cunningham was working for the Rapides Parish Council on Aging on October 27, 1982. She testified that she was making $3.35 an hour when she started working and that subsequently she got a five cents an hour raise. However, she was not sure whether the raise came before or after October 27th. She also introduced into evidence two (2) check stubs .... These check stubs were from her place of employment and show her earnings. One of them states that it is for the period ending October 29, 1982, during which period Bertha had worked eighty (80) hours at the rate of $3.40 per hour. Thus, she had been making $3.40 per hour for at least two weeks as of October 27, 1982. It is therefore the finding of this Court that Mrs. Cunningham had received her five cents an hour raise prior to October 27, 1982, and that there has been no change in her salary since that date. This Court would also mention in passing that even if Mrs. Cunningham had not received her raise until after the date of the agreement, such a small raise would not be a change substantial enough to warrant a change in alimony.
In summary, in order to have alimony terminated or altered, the plaintiff-in-rule must show a change in circumstances since October 27, 1982. It is the finding of this Court that the plaintiff has failed to show any change of circumstances, except possibly a slight reduction in his weekly income. Even if his weekly income has been reduced somewhat, that reduction is so slight that it is not substantial enough to warrant a change of alimony.”

As the above analysis reveals, there was no change of circumstances between the date of the rule and the date of the consent agreement. The alimony award, therefore, will not be reduced.

DECREE

For the above and foregoing reasons, the decision of the trial court is affirmed. All costs are assessed against defendant-appellant.

AFFIRMED.


text:
    Raymond GRANGER, Plaintiff-Appellant, v. FORD, BACON & DAVIS CONSTRUCTION CORPORATION and Aetna Life and Casualty Company, Defendants-Appellants.
    No. 83-827.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1984.
    Writ Denied June 8, 1984.
    McClain, Morgan & Savoy, R. Scott McClain, Lake Charles, for plaintiff-appellant.
    Raggio, Cappel, Chozen & Berniard, Stephen A. Berniard, Jr., Lake Charles, for defendant-appellee.
    Before GUIDRY, FORET and CULPEPPER, JJ.

       Judge William A. Culpepper, Retired, Judge Ad Hoc.

   GUIDRY, Judge.

Raymond Granger filed this suit for worker’s compensation benefits plus penalties and attorney’s fees alleging an accident and injury on the job, in the course and scope of his employment on July 25, 1980. Named as defendants are Ford, Bacon & Davis Construction Corporation, his employer at the time, and Aetna Life and Casualty Company, the employer’s insurer. After trial on the merits, the trial court rendered judgment in favor of defendants rejecting plaintiff’s demands. Plaintiff appeals.

Plaintiff was employed by Ford, Bacon & Davis as a pipefitter welder at the PPG plant in July of 1980. On July 25, 1980, plaintiff allegedly struck his head on a valve stem as he rose after completing a weld. Plaintiff reported the accident to his employer on August 4, 1980. Defendants paid weekly compensation benefits in the stipulated amount of $148.00 per week from the date of the accident until suit was filed.

Plaintiff’s only witnesses at trial were himself, his wife, his son and Dr. Edward L. Heartfield. The latter’s testimony was offered by way of deposition. The trial judge, in written reasons for judgment, determined that plaintiff had failed to prove by a preponderance of the evidence that an accident occurred. In reaching this conclusion, the trial judge pointed to the fact that plaintiff’s testimony and that of his wife was discredited by impeachment and inconsistencies. In this connection, the trial court stated:

“Plaintiff testified that on July 25, 1980, he had been welding on a pipe near the ground and upon raising up struck the back of his head on a valve stem hanging down at an angle from above. On direct examination he said he was stunned for a moment but continued working. On cross examination he claimed the blow broke the skin, bled and he went to a washroom to wash the blood off with paper towels. His wife testified she examined a bump on his head that evening and the skin was not broken. She said they went to their family physician, Dr. Eastland, in Orange, Texas, for treatment that evening. No such doctor testified, by deposition or otherwise.
Plaintiff claims that after several days he began having headaches and dizzy spells and then reported the occurrence of the accident to his foreman, ‘Blue’. Defendant alleges no report was made until August 10, 1980. There is no other confirmation of an accident, or a head injury, in the record even though two other people were present.
Plaintiff was a member of a Texas union, a pipefitter welder, working out of a pipefitter’s local union in Lake Charles. He could only identify his foreman as ‘Blue’, who surely would have been a pipefitter working out of the same union, as well as would have been the helper working with plaintiff. It would seem reasonable that plaintiff could have located them through either the union or the employer. No effort to do so is demonstrated.
In this case the testimony of plaintiff and his wife have been so discredited that the court must and does determine that plaintiff has failed to prove by a preponderance of the evidence that an accident occurred. For instance, plaintiff testified at trial March 22, 1983, that his compensation benefits had not been paid in about a year. His wife testified the last check was March 10, 1982. Plaintiff’s petition alleges defendants arbitrarily and capriciously failed to pay compensation benefits in the sums required by law from the date of the injury to the date of filing of suit.
The record demonstrates that benefits were paid each two weeks, in the stipulated rate of $148.00 per week not only to March 10, 1982, but were in fact continuing when suit was filed August 6, 1982. They were terminated, thereafter upon advice of counsel. Not only was all compensation claimed paid timely but in the interim defendant Aetna Insurance advanced plaintiff $7,302.00 over and above regular benefits out of sympathy for his financial hardships....
The complaints related by plaintiff to Dr. Heartfield, as demonstrated by the doctor’s deposition, are so divergent from his actual conduct as to bring the court to the conclusion that the subjective findings upon which the doctor relied were not true. This would, of course, seriously detract from the doctor’s opinion that the ‘accident’ history was a ‘reasonable medical probability’ for plaintiff’s objective symptoms.”

On appeal, plaintiff contends that the trial court’s finding constitutes manifest error.

The standard of review which we must apply in this case was stated by the Supreme Court in Canter v. Koehring Company, 283 So.2d 716 (La.1973) as follows:

“Where there is evidence before the trier of fact, which upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error ... ”.

Plaintiff recognizes his burden of proving by a preponderance of the evidence that an employment accident occurred and that it had a causal relation to the disability. Prim v. City of Shreveport, 297 So.2d 421 (La.1974); Randle v. Commercial Union Ins. Co., 396 So.2d 1007 (La.App. 3rd Cir.1981). He nonetheless contends that this burden may be met by claimant’s own testimony corroborated by surrounding circumstances, relying on Thompson v. Natchitoches Parish Hospital Service District, 335 So.2d 81 (La.App. 3rd Cir.1976), writ denied, 338 So.2d 298 (La.1976).

Although a worker’s compensation claimant may prove the occurrence of an accident by his own testimony corroborated by the surrounding circumstances, that testimony is always subject to the trier of fact’s reasonable evaluation of credibility. Guilbeaux v. Trinity Universal Ins. Co., 134 So.2d 717 (La.App. 3rd Cir.1961) and cases cited therein.

Plaintiff’s own testimony was the only direct evidence of the accident. In corroboration thereof, plaintiff introduced the testimony of his wife and Dr. Heart-field. Dr. Heartfield’s testimony depends, to a great extent, upon plaintiff’s history and subjective symptoms related to him by plaintiff, and a careful review of the record clearly indicates that there was more than sufficient reason for the lower court to question the credibility of plaintiff.

In testimony and in answer to interrogatories, Mr. Granger stated that he had been prevented from working at all times since the occurrence of the alleged accident. However, he later admitted full time employment with Bechtel Corporation from November 1980, when he worked a 40 hour week performing as a pipefitter welder, until completion of the job in June 1981. In addition, although plaintiff admitted working as a pipefitter in a shop at his home, he initially stated that his earnings therefrom were insignificant. This testimony was impeached when plaintiff admitted testifying in another proceeding in January of 1982 that he earned an average of $400.00 a week working out of that shop. Both plaintiff and his wife testified that plaintiff was unable to operate a motor vehicle. Nevertheless, plaintiff later testified that while employed by Bechtel, he took turns driving in a carpool from his home in Orange, Texas, to a job site in Sulphur, Louisiana.

We find that the trial judge’s evaluation of plaintiff’s credibility is supported by the record and find no manifest error in his conclusion that plaintiff failed to prove the occurrence of any accident while employed by defendant by a preponderance of the evidence.

For the above and foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to plaintiff, Raymond Granger.

AFFIRMED.

      . The record reflects that defendants in fact allege that an accident report was made on August 4, 1980.


author: PER CURIAM.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Frank D. VAUGHN, Jr., Defendant-Appellant.
    No. K84-70.
    Court of Appeal of Louisiana, Third Circuit.
    April 17, 1984.

      Frank A. Flynn, Allen, Gooch, Bourgeois, Breaux & Robison, P.C., Lafayette, for defendant-appellant.
    David F. Hutchins, Sp. Asst. Dist. Atty., Lafayette, for plaintiff-appellee.
    Before GUIDRY, FORET and KNOLL, JJ.
   PER CURIAM.

Defendant, Frank Vaughn, was convicted of driving while intoxicated — second offense, a violation of LSA-R.S. 14:98. He applied to this Court to review his one assignment of error, to-wit: the trial court erred in denying his motion to suppress the evidence against him.

The basis of his assignment is the argument that the police officer lacked the requisite reasonable suspicion that the defendant was committing, had committed, or was about to commit a crime which was needed to effectuate the necessary reasonable cause to stop the defendant. State v. Williams, 416 So.2d 91 (La.1982); LSA-C.Cr.P. Article 215.1.

The police officer’s testimony, at the hearing on the motion to suppress, reflected that he based his stop of the defendant on the following observations:

“The driver of the vehicle proceeded into the oncoming lane, approx — with his two (2) left tires on the inside of the oncoming lane about six (6) inches. In other words, he crossed over the — the center line about six (6) inches for approximately ten (10) feet. This was observed after seeing the suspect sway in his own southbound lane several times within that lane.”

The arresting officer also testified that he followed the defendant’s vehicle for a distance of about one and one-half city blocks from the time that he first saw him, to the time of arrest. The officer was vague in parts of his testimony. For example, he could not remember whether there was another police officer in his car with him at the time of the arrest. He does not remember whether the defendant indicated his intention to turn right on Taft Street, on which street he was arrested. There is no testimony by the arresting officer that defendant’s driving presented actual danger to anyone, such as to oncoming cars in the opposite lane, or that when defendant swayed in his own lane, just in what fashion this was done, e.g., whether from side to side or a matter of inches, etc.

It is the opinion of this Court that the defendant’s actions crossing six inches over the center line and traveling thus for approximately ten feet, even when coupled with the observation of a vehicle swaying within its own lane, does not per se present sufficient facts to establish the requisite reasonable cause which is necessary before a police officer may legally stop a motorist; particularly so, when the police officer followed the defendant for only one and one-half blocks, and further, when defendant’s driving presented no evidence of danger to himself or to others. The consequences of a D.W.I. conviction, under present law, are so grave that reasonable cause to stop a motorist should consist of more than minor deviations, such as in this case, observed for a distance of one and one-half city blocks.

Inasmuch as the evidence fails to establish reasonable cause to stop the defendant, the trial judge erred in denying the motion to suppress the evidence. Hence, the writ applied for is granted and accordingly, IT IS HEREBY ORDERED that the motion to suppress be granted and that the evidence against the defendant be suppressed. The matter is remanded for further proceedings not inconsistent with this ruling.