author: FORET, Judge.

text:
    SUCCESSION OF Annie Crouch BUDWAH.
    No. 83-244.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.

      Philip A. LeTard, Patrick A. McDonough, Vidalia, for proponents-appellants.
    Glenn B. Gremillion, Ferriday, for opponents-appellees.
    Before FORET, STOKER and YELVER-TON, JJ.
   FORET, Judge.

Harold Watson (proponent-appellant) filed a petition for probate of the testament of his great-aunt, Mrs. Annie Crouch Bud-wah (decedent). Shortly thereafter, Mrs. Josie Crouch Ussery filed an opposition to the probate of said testament based on a number of grounds.

Pursuant to the provisions of LSA-C.C.P. Article 2901, a contradictory' trial of this matter was held. The trial court rendered judgment in favor of Mrs. Ussery, declaring decedent’s testament to be invalid, and null and void. The trial court further rendered judgment, declaring that decedent had died intestate.

Proponent-appellant appeals and raises the following issues:

(1) Whether the trial court erred in finding that proponent-appellant had the burden of proving that decedent had the physical ability to read at the time she executed her testament;
(2) Whether the trial court erred in finding that decedent did not have the physical ability to read at the time she executed her testament; and,
(3) Whether the trial court erred in denying proponent-appellant’s motion for a new trial on the ground that its judgment was contrary to the law and evidence.

FACTS

On January 30, 1981, testatrix executed a testament in statutory form (see LSA-R.S. 9:2442) in which she bequeathed to Mrs. Ussery the usufruct over all of her property. She further bequeathed her undivided interest in a forty-acre tract of land located in Catahoula Parish to Foster L. Watson, and the remainder of her property to be divided equally between Barney F. Watson and proponent-appellant. Finally, testatrix appointed proponent-appellant as her testamentary-executor. On April 25, 1981, testatrix died at the Concordia Parish Hospital.

On July 2,1981, proponent-appellant filed the above mentioned petition for probate of decedent’s testament. On July 8,1981, Mrs. Ussery filed her opposition to the probate of said testament. On that same date, Mrs. Ussery, Maurice Elnora Crouch Willson, and Homer C. Tiffey filed a petition for appointment of an administrator in which they requested that Mrs. Willson be appointed administratrix of decedent’s succession, and that Tiffey be appointed administrator thereof (apparently co-administrators). On January 8, 1982, the trial court issued an order appointing Mrs. Willson and Tiffey as administratrix and administrator of decedent’s succession, respectively. After complying with the requirements of law, letters of administration were issued to this effect.

As noted above, the trial court rendered judgment in favor of Mrs. Ussery. On November 18, 1982, proponent-appellant filed a motion for new trial in which he alleged that said judgment was contrary to the law and evidence. The trial court denied the motion.

BURDEN OF PROOF

Proponent-appellant contends that the trial court erred in finding that he had the burden of proving that decedent was physically able to read at the time she executed her testament. He argues that Mrs. Ussery had the burden of proving that decedent could not do so. A review of the trial court s written opinion shows that it did place this burden of proof on proponent-appellant.

A party attacking a will on the basis of the testator’s incapacity must prove beyond a reasonable doubt that at the time the will was made, the testator did not have sufficient knowledge and understanding of the effect of his action. Succession of Dubos, 422 So.2d 444 (La.App. 4 Cir.1982), writ denied, 429 So.2d 132 (La.1983), application not considered, 429 So.2d 160 (La.1983); Succession of Collins v. Hebert, 377 So.2d 516 (La.App. 3 Cir.1979), writ denied, 879 So.2d 15 (La.1980); Succession of Brown, 251 So.2d 465 (La.App. 1 Cir.1971). Stated another way, there exists a very strong presumption (much like the presumption of an accused’s innocence) that the testator possessed the requisite testamentary capacity. Succession of Dubos, supra; Succession of Zinsel, 360 So.2d 587 (La.App. 4 Cir.1978), writ denied, 363 So.2d 72 (La.1978); Succession of Arnold, 375 So.2d 157 (La.App. 2 Cir.1979), writ denied, 376 So.2d 1267 (La.1979). Finally, a testator’s physical ability to read is considered by our jurisprudence to be an element of testamentary capacity, and therefore the party alleging the lack of that capacity assumes the same burden as that which attaches to proof of mental incapacity. Succession of Dubos, supra; Succession of Littleton, 391 So.2d 944 (La.App. 2 Cir.1980); Succession of Arnold, supra; Succession of Glynn, 167 So.2d 533 (La.App. 4 Cir.1964), writ denied, 246 La. 913, 168 So.2d 823 (1964).

It is our opinion that the trial court erroneously placed the burden of proof on proponent-appellant to show that decedent had physical ability to read at the time she executed her will.

DECEDENT’S PHYSICAL ABILITY TO READ

Proponent-appellant contends that the trial court committed manifest error in finding that decedent did not have the physical ability to read at the time she executed her will. He argues that the evidence shows that decedent had the physical ability to read or, in the alternative, that Mrs. Ussery failed to prove beyond a reasonable doubt that she lacked this capacity.

We note first of all that proponent-appellant relies on a number of affidavits and depositions which he introduced under a proffer of proof at the hearing on his motion for a new trial to prove that decedent had the physical ability to read.

Under LSA-C.C.P. Article 1972, in a non-jury case, two questions are before the trial court in deciding whether to grant a motion for a new trial: (1) whether the judgment is clearly contrary to the law and evidence and (2) whether the party seeking the new trial should have discovered the new evidence with due diligence. Under the first situation, the decision must be made on the evidence presented at the original trial; thus, no new evidence is involved. In the second case, the only question before the trial court is one of diligence. The trial court may look at the evidence in making this determination, but until a new trial is granted, the trial court does not receive any additional evidence in the case. Thus, those affidavits and depositions offered under a proffer of proof by proponent-appellant at the hearing on his motion for a new trial are not before this Court and form no part of the record on appeal. See Blount v. Exxon Corp., 395 So.2d 355 (La.App. 1 Cir.1981).

There is no dispute concerning the fact that decedent was literate. Apparently, she was a retired school teacher. Mrs. Willson was one of the persons who witnessed the execution of decedent’s testament. She stated that decedent was hospitalized at the time in the Jeff Davis Hospital in Natchez. She further stated that decedent was aware of the contents of her testament at that time. However, she believed that decedent was physically unable to read her testament because of her poor eyesight. Mrs. Willson testified that: decedent asked for and was given her glasses when her testament was handed to her by the attorney who had prepared it; however, she was still unable to see well enough to read it, and she gave it to Mrs. Willson to read for her. Mrs. Willson was also unable to read the testament because of her limited education and, according to her testimony, she then gave the testament to the attorney to read, which he did.

George Griffing, the attorney who prepared decedent’s testament, was also a witness to its execution. He testified that he handed the testament to decedent, and that she propped it up against some object and began looking over it. At the same time, he explained to her what the various clauses contained therein meant. He stated that he did not read the will to decedent word for word, and that he did remember decedent asking for and receiving her glasses. Once she was given her glasses, she put them on and began looking over her testament, and gave no indication whatsoever that she was unable to read it.

Proponent-appellant testified that he had lived with decedent from 1973 until she was hospitalized in Natchez. During this time period, decedent handled all of her business affairs without help from anyone. She continued to do this until she was hospitalized in Natchez. After that, he would bring her mail to her in the hospital, and she would open it, look at it, and make comments such as, this bill needs to be paid, etc. This continued up to the date on which she executed the testament.

Barney Watson testified that he visited decedent while she was in the hospital. He stated that decedent was unable to recognize anyone entering her room until they got by her bedside. However, it was his opinion that decedent was unable to read at this time, although he did admit that she was able to ride home with him in his automobile when she was discharged from the hospital. Thus, it appears that her health was such that there was no need to use an ambulance to transport her.

Homer Tiffey testified that he believed decedent could read her mail before she entered the hospital. He also testified that decedent was able to recognize different people if they got close to her bedside. However, he stated that decedent had asked him to read a get well card she had received in the hospital because she was unable to see the writing contained therein. Except for this incident, he was unable to state whether or not decedent was physically able to read while she was in the hospital.

It is our opinion that the opponents of decedent’s will have clearly failed to meet their heavy burden of proving beyond a reasonable doubt that decedent was physically unable to read at the time she executed her testament. The trial court’s finding that decedent was unable to do so is clearly wrong and must be reversed.

DENIAL OF MOTION FOR NEW TRIAL

Because of our decision herein, the issue of whether or not the trial court erred in failing to grant proponent-appellant’s motion for a new trial is moot.

DECREE

For the above and foregoing reasons, the judgment of the trial court invalidating the testament in dispute is hereby reversed, vacated, and set aside and the case is remanded for further proceedings in accordance with law.

The assessment of the costs of this appeal, and in the trial court, shall await a final determination in this matter.

REVERSED AND REMANDED.

      . On March 19, 1982, Mrs. Josie Crouch Ussery died. This was after the trial on this matter was held, but prior to the time that this appeal was filed. After the appeal was filed, Maurice Elnora Crouch Willson and Homer C. Tiffey filed a “MOTION AND ORDER FOR SUBSTITUTION OF PARTIES” in which they sought to be substituted as parties in the place and stead of Mrs. Ussery. In their motion, they allege that Mrs. Ussery died intestate, was predeceased by her husband, and left no children or other descendants, nor brothers and sisters. They further allege that Mrs. Willson is a niece, and Mr. Tiffey is a nephew of Mrs. Ussery, and that they are her intestate heirs and next of kin.
      After considering the motion, we issued an order to the effect that Mrs. Willson and Mr. Tiffey be substituted as parties to this action, and that they be allowed to proceed to prosecute it.

      . LSA-R.S. 9:2443(A) provides that: “A statutory will may be executed under this Section by a person whose sight is impaired to the extent that he cannot read or who does not know how to read.” However, the statute goes on to require that the will be read aloud in the presence of the testator and three competent witnesses, and that the three witnesses must then sign a declaration identical to, or substantially similar to, the one provided in the statute. The evidence shows that only two competent witnesses signed the declaration in the testament at issue. Thus, we must determine whether all of the provisions of LSA-R.S. 9:2442 were met in executing said testament. One of the requirements of LSA-R.S. 9:2442 is that the testator must be physically able to read at the time the testament is executed.


source: Caselaw Access Project

license: Public Domain

text:
    Mary Richardson PICKENS, Plaintiff-Appellee, v. Joseph Aljay PICKENS, Defendant-Appellant.
    No. 83-245.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.

      Joshua J. Pitre of White & Pitre, Opel-ousas, for defendant-appellant.
    Sandoz, Sandoz & Schiff, Lawrence B. Sandoz, III, Opelousas, for plaintiff-appel-lee.
    Before FORET, STOKER and YELVER-TON, JJ.
   FORET, Judge.

Mary Richardson Pickens (plaintiff) brought an action for separation from bed and board against her husband, Joseph Al-jay Pickens (defendant). In addition, plaintiff filed a rule for custody, alimony pen-dente lite, child support, and use of the family home.

After hearing plaintiff’s rule, the trial court rendered judgment in her favor, awarding her custody of Sonja Pickens (the only child born of the parties’ marriage), the use of the family home during the pend-ency of these proceedings, and $500 per month for alimony pendente lité and child support. The trial court also ordered defendant to provide plaintiff with living accommodations for herself and her children .

Defendant appeals from this judgment and raises the issue of whether the trial court abused its discretion in awarding plaintiff $500 per month for alimony pen-dente lite and child support, and in ordering him to provide plaintiff and her children with living accommodations.

FACTS

The evidence shows that defendant had a gross income of $37,719 in 1981. In addition, defendant testified that he had four or five certificates of deposit in the amount of $10,000 each, which he simply rolls over as they become due. He estimated his total monthly expenses to be $2,905.74, a figure which the evidence shows to be grossly overstated.

Plaintiff estimated her average monthly income from a part-time job to be $200 per month. She estimated her total monthly expenses to be $1,669.74, a figure which the evidence also shows to be grossly overstated, as it includes a monthly expenditure of $769.74 for payment of the mortgage note on the parties’ home.

TRIAL COURT’S DISCRETION

In determining child support, the trial judge is vested with wide discretion. Only manifest abuse of that discretion will move an appellate court to disturb an award of the trial judge. Strickland v. Strickland, 377 So.2d 537 (La.App. 3 Cir.1979); Gravel v. Gravel, 331 So.2d 580 (La. App. 3 Cir.1976); Dupre v. May, 365 So.2d 1173 (La.App. 3 Cir.1978). Similarly, in making an award of alimony pendente lite, the trial judge is vested with the same wide discretion. Gaspard v. Gaspard, 401 So.2d 624 (La.App. 3 Cir.1981); Ryan v. Ryan, 401 So.2d 514 (La.App. 2 Cir.1981); Ledbetter v. Ledbetter, 398 So.2d 1155 (La.App. 2 Cir. 1981).

A review of the respective incomes and expenses of the parties, in light of the statutory authority (See LSA-C.C. Article 148) and the judicial interpretation thereof, does not establish that there has been any abuse of discretion by the trial court in awarding plaintiff $500 per month for child support and alimony pendente lite, and in ordering defendant to provide living accommodations for plaintiff and her children.

DECREE

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

AFFIRMED.

      . Plaintiff had four children from a previous marriage living with her and defendant, and defendant had one child from a previous marriage who was also living with them.

      . This figure should not be included in plaintiffs estimated monthly expenses since the trial court’s judgment orders the defendant to provide living accommodations for plaintiff and her children. Obviously, this means that defendant must pay the mortgage note as plaintiff was given the use of the family home during the pendency of these proceedings.


author: STOKER, Judge.

text:
    James M. CHARGOIS, Plaintiff-Appellant, v. TRIP-L-QUIK, et al., Triple K Corporation, Defendant-Appellee.
    No. 83-252.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.

      Cecelia A. Bonin, New Iberia, for plaintiff-appellant.
    Caffery, Oubre & Dugas, Jerry A. Oubre, New Iberia, for defendant-appellee.
    Armentor & Wattigny, Dean M. Wattig-ny, New Iberia, for defendant-appellee.
    Before FORET, STOKER and YELVER-TON, JJ.

      . The Triple K Corporation was erroneously referred to in the original petition as the Trip-L-Quik Corporation. The correct name of the corporation was given in plaintiffs first amending and supplemental petition. The corporation will hereafter be referred to as Triple K.

   STOKER, Judge.

Plaintiff, James M. Chargois, appeals two judgments of the trial court granting motions for summary judgment filed by Triple K Corporation both of which dismissed plaintiff’s claims against the corporation. Chargois seeks damages for personal injury incurred as a result of alleged battery and false imprisonment by Alfred Meaux, manager of a Trip-L-Quik store, and two of its employees, Sis Hammons and Gerald Anthony Hebert. Triple K was named a defendant along with these three individuals. We reverse and remand the case to the trial court for further proceedings.

FACTS

Chargois claims that he entered the Trip-L-Quik store in Iberia Parish which was operated by Meaux on December 2,1981 to make some purchases. Plaintiff alleges that defendants Meaux, Hammons, and Hebert locked the doors of the store without just cause and prevented him from leaving the store. Plaintiff avers that this constituted false imprisonment. During this imprisonment Chargois was struck by Ham-mons with a lead pipe.

PROCEDURAL ASPECTS

In his original petition, Chargois asserts that Meaux, Hammons, and Hebert were acting in their capacities as manager and employees of Triple K and, therefore, the corporation is vicariously responsible for their actions. In a second supplemental and amending petition, he makes what appear to be allegations of independent negligence on the' part of Triple K.

Plaintiff’s second supplemental and amending petition was filed two days before the hearing on Triple K’s first motion for summary judgment. The hearing was held on October 1,1982. On that same day judgment was rendered and signed in favor of Triple K. Triple K filed a second motion for summary judgment on October 27,1982, addressed to the second supplemental and amending petition. The trial court granted judgment in favor of Triple K on this motion on January 21, 1983. Plaintiff took separate appeals from each judgment (Tr. 80 and 81), but the return date on each appeal was the same, March 28, 1983. One record was made up and lodged in this court. We consider both appeals in this opinion.

APPLICABLE LAW

Triple K asserted in both of its motions for summary judgment that the Trip-L-Quik store involved in this incident was operated by Alfred Meaux pursuant to a written franchise agreement and that Meaux, Hammons, and Hebert were not employees or agents of the corporation. Triple K denies any independent or vicarious responsibility for the incident.

A motion for summary judgment should be granted only 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 material fact, and that mover is entitled to judgment as a matter of law.” LSA-C.C.P. art. 966; Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976), writ denied, 429 U.S. 833, 97 S.Ct. 97, 50 L.Ed.2d 98 (1976). Only when reasonable minds must inevitably concur, as a matter of law, on the facts before the court is a summary judgment warranted, and any doubt is resolved against the granting of a summary judgment and in favor of a trial on the merits. Clement v. Taylor, 382 So.2d 231 (La.App. 3rd Cir. 1980). The likelihood that a party will be unable to prove his allegations upon trial on the merits does not constitute a basis for rendering a summary judgment. Teledyne Movible Offshore, Inc. v. C & K Offshore Company, 376 So.2d 357 (La.App. 3rd Cir. 1979).

On a motion for summary judgment, the court must first determine whether the supporting documents presented by the moving party are sufficient to resolve all material fact issues. If they are not sufficient, summary judgment must be denied. Only if they are sufficient does the burden shift to the opposing party to present evidence that material facts are still at issue, and only at this point may he no longer rest on the allegations and denials contained in his pleadings. Begnaud v. Pedestal Crane, Inc., 408 So.2d 24 (La.App. 3rd Cir.1981).

We have for consideration in the case before us the pleadings, the written agreement between Meaux and Triple K, Triple K’s answers to Chargois’s interrogatories, and affidavits by Meaux and Cliff O’Neal, president of Triple K. The assertions contained in the affidavits appear to be based on the provisions of the written agreement. After reviewing these supporting documents, we find that a genuine issue of material fact does exist, and the motion for summary judgment was improperly granted.

Pertinent portions of the written franchise agreement are as follows:

“E. Owner-operator agrees to comply with all provisions, restrictions and controls provided in this agreement, as well as any other subsequently imposed by Triple K pursuant thereto, including, but not limited thereto, the following listed requirements.
“1. Owner-operator shall hire and supervise efficient, competent, sober and courteous operators and employees for the operation of the business, set their wages and commissions, and pay all such wages and commissions due them with no liability therefor on Triple K.
* ⅜ ⅜ sfc sfc ⅜
“3. Owner-operator hereby specifically agrees that whenever it shall appear in Triple K’s reasonable judgment that owner-operator’s said business is not being operated in compliance with the requirements hereof, that the volume of business being done is not equivalent to the average volume of other businesses similarly situated, or other business is not being operated profitably or efficiently, Triple K, at its option, may place one or more representatives at said store for a reasonable period of time to observe and examine any and all phases of operation thereof and may make any reasonable recommendation to owner-operator as to any operational change or procedure considered necessary or proper for efficient and profitable operation. Owner-operator shall effect promptly any such operational change or procedure so recommended.”

The agreement authorized Meaux to operate his store as a Trip-L-Quik store and the provisions quoted above indicate that Triple K reserved some control over the operation of the store. Plaintiff contends that this control is sufficient for Meaux, Hammons, and Hebert to be considered employees of Triple K. Triple K contends that the provisions are meant only to protect the Trip-L-Quik trade name and to assure that the franchise fees are properly paid.

The matter of the control exercised by Triple K can be resolved only through a determination of the intent of the parties to the agreement. Summary judgment is seldom appropriate when there is a question of what was intended by certain provisions of a contract. Nettles v. Bowlin, 386 So.2d 658 (La.App. 1st Cir. 1980), appeal after remand, 417 So.2d 1192 (La.App. 1st Cir.1982). We find that this is not an appropriate case for summary judgment. See Hinton v. Western Casualty and Surety Company, et a1, 435 So.2d 568 (La.App. 3rd Cir.1983).

In any event, we find that plaintiff’s allegations of independent negligence on the part of Triple K preclude summary judgment in its favor. The documents in support of Triple K’s motion for summary judgment contain only a denial of negligence. They do not sufficiently resolve all factual issues so that Chargois would have the burden to present evidence showing material facts were still at issue.

For the above reasons, the judgment of the trial court granting the motion for summary judgment is reversed. This matter is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.


text:
    BYLES WELDING & TRACTOR, INC., Plaintiff-Appellee, v. E.W. McDANIEL, Defendant-Appellant.
    No. 83-258.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.

      Edward Paul Chevallier, of Self & Burk-ett, Many, for defendant-appellant.
    Kenneth N. Simmons, Many, for plaintiff-appellee.
    Before FORET, STOKER and YELVER-TON, JJ.
   FORET, Judge.

This is a suit on open account brought by plaintiff, Byles Welding & Tractor Company, Inc. against defendant, E.W. McDaniel, for the sum of $511.60, together with 25% attorney’s fees. The trial court ruled in favor of the plaintiff for the principal sum, but dismissed his claim for attorney’s fees. E.W. McDaniel has appealed, and Byles Welding has answered that appeal praying for a reversal of the trial court’s ruling on the issue of attorney’s fees and also seeking damages for frivolous appeal. The issue on appeal is whether the person who bought the items was clothed with apparent authority to charge to Mr. McDaniel’s account.

FACTS

E.W. McDaniel is in the timber business. Byles Welding is a retail outlet which deals primarily in sales and services of farming and power equipment. The two have transacted business for ten years . Throughout that period of time, several persons have properly charged to Mr. McDaniel’s account. Those individuals include Mr. McDaniel’s father, son, and a few employees who had worked for him for several years. Mr. McDaniel always paid these bills without complaint, even though they may not have been signed by the individual who did the purchasing.

On January 29, 1982, a man by the name of Jerry Ford entered plaintiff’s place of business and informed sales personnel that he was working for E.W. McDaniel and wished to charge several items to Mr. McDaniel’s account. The employees permitted Mr. Ford to charge the items without first checking on his authority to charge. He continued to charge items to Mr. McDaniel’s account through February 8, 1982, and ran up a bill of $511.60. In fact, however, Jerry Ford was not working for Mr. McDaniel, but was employed by his brother, Charles Ford, who had leased some timber equipment from Mr. McDaniel.

Mr. McDaniel first became aware of the unauthorized charges when he received his statement at the end of February. After being contacted by Byles Welding’s bookkeeper, Mr. McDaniel informed her that he was not going to pay the bill. Byles Welding then sent a demand letter on July 23, 1982. In September of 1982, Mr. Clauriste Byles of Byles Welding met with Mr. McDaniel whereby Mr. McDaniel agreed to pay for his son’s charges, which were also on the February statement, but again refused to pay for the charges of Jerry Ford. This suit followed.

The trial court ruled in favor of plaintiff on the grounds that “Byles Welding was correct in assuming that Mr. Ford had the apparent authority to charge to his (Mr. McDaniel’s) account.” We disagree.

Apparent authority is a concept of estoppel operating in favor of a third person seeking to bind a principal for the unauthorized act of an agent. Broadway v. All- Star Insurance Corporation, 285 So.2d 536 (La.1973). The burden of proving apparent authority is on the person seeking to bind the principal. Vermilion Bank & Trust Co. v. Miller, 284 So.2d 662 (La.App. 3 Cir.1973).

The judicially created doctrine of apparent authority has two requirements:

(1) The principal must make some form of manifestation to an innocent third party; and,
(2) The third party must rely reasonably on the purported authority of the agent as a result of the principal’s manifestations.

Pargas, Inc. v. Estate of Taylor, 416 So.2d 1358 (La.App. 3 Cir.1982).

In this case, there was no manifestation whatsoever made by McDaniel which would lead Byles Welding to believe that Jerry Ford had the authority to charge to McDaniel’s account. Mr. Ford had never before worked for McDaniel, nor had he ever charged anything to his account. The trial court apparently found some type of manifestation through McDaniel’s past conduct in allowing several persons the right to charge to his account without any complaint on his part. We can find no authority for the trial court’s position. The mere fact that a principal has previously made several persons his agents does not give a third person the right to assume that he has made all persons his agents.

A third party seeking to benefit from the doctrine of apparent authority may not blindly rely on the assertions of an agent. He has a duty to inquire into the nature and extent of the powers of the agent. Buckley v. Woodlawn Development Corporation, 233 La. 662, 98 So.2d 92 (1957). Byles Welding did not fulfill that duty. It could have easily protected itself by telephoning McDaniel or simply denying Mr. Ford the right to charge until adequate proof of the principal-agent relationship was given. McDaniel should not be punished for Byles Welding’s lax business practices.

We find that because there was no manifestation made to Byles by McDaniel that Jerry Ford was his agent, the trial court committed error of law in finding apparent authority. To hold otherwise would result in giving a complete stranger the right to bind another’s account on the mere assertion of agency status just because several persons have been allowed to charge to that individual’s account in the past.

Since we find for the defendant-appellant, we obviously do not feel that this is a frivolous appeal. Also, we need not reach the issue of attorney’s fees.

DECREE

For the reasons assigned, the judgment of the trial court is hereby reversed. Judgment is hereby granted in favor of appellant, E.W. McDaniel, and against appellee, Byles Welding and Tractor, Inc., dismissing plaintiff’s suit with prejudice. All costs, both at the trial level and on appeal are taxed against appellee.

REVERSED AND RENDERED.

      . Prior to that time, plaintiff’s business was known as Byles Brothers. E.W. McDaniel dealt with that business for close to thirty years.

      . Once, in the late 1960’s, E.W. McDaniel had complained of an unauthorized charge and informed Byles Brothers that no one was to charge to his account unless that person had written permission or until Byles Brothers had phoned him first. That one occasion does not affect the conclusion we have reached here.

      .Charles Ford had an independent contract with E.W. McDaniel whereby Ford would haul logs to Mr. McDaniel’s mill for $3.50 per tie with a deduction of $1 per tie as rent. Jerry Ford was paid only by his brother.


author: YELVERTON, Judge.

text:
    CITY OF LAKE CHARLES, Plaintiff-Appellee, v. DAVE’S SWEDISH SPA RESORT, Defendant-Appellant.
    No. 83-259.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.
    Writ Denied Jan. 16, 1984.

      Robert L. Dow, Lake Charles, for defendant-appellant.
    Peter A. Ciambotti and E.R. Robinson, III, Lake Charles, for plaintiff-appellee.
    Before FORET, STOKER and YELVER-TON, JJ.
   YELVERTON, Judge.

The City of Lake Charles filed suit against Dave’s Swedish Spa Resort, Inc. to recover a 1% city sales tax on sales of membership fees for use of defendant’s facilities for the period from January 1, 1981, through September 30, 1981, together with penalties, interest, collection fees and attorney’s fees, pursuant to Lake Charles City Ordinance No. 1535. The defendant-appellant answered the rule setting forth various affirmative defenses, including judicial and equitable estoppel, res judicata and various federal and state constitutional defenses. From a judgment in favor of the City of Lake Charles, the defendant has appealed. We affirm.

The facts are undisputed. Dave’s Swedish Spa is a Louisiana corporation doing business in Lake Charles. The defendant charged dues or fees for the privilege of access to and the use of its facilities. The facilities included free weights, two saunas, a whirlpool, a swimming pool thirty feet long and twelve feet wide, dynamic exercise equipment, one exercise floor, and a sun solarium. The benefits from exercise were advertised to increase coordination, stamina and endurance as well as relieve stress and tension. There were no organized games, contests or competitive sports at this facility-

In December of 1980 the City of Lake Charles sent letters to all the health spas in the city limits informing them that it would begin to assess a 1% sales tax on membership fees beginning January 1,1981. Counsel for the parties at trial stipulated that if judgment were rendered in favor of the City, the sum of $1,179.18 would be the correct assessment of taxes, penalties and attorney’s fees against the defendant during the period in contention here.

The assessment was made under Ordinance No. 1535 of the City of Lake Charles which levies a sales tax upon the sale of certain services. Article 301, Section 1(b)(2) of that ordinance includes in the definition of taxable sales:

(2) The sale of admission to place of amusement, to athletic entertainment other than that of schools, colleges and universities, and recreational events, and the furnishing, for dues, fees, or other consideration, of the privilege of access to clubs or the privilege of having access to or the use of amusement, entertainment, athletic or recreational facilities;

The City contended, and the trial court found, that the facilities are “athletic” and “recreational,” and that therefore the sales were taxable. Judgment was accordingly rendered for the stipulated amount.

The defendant contends on appeal that the trial court erred in the following respects: (1) in failing to find that the City was barred by the principles of estoppel or res judicata from making this assessment by virtue of a decision of the Louisiana State Board of Tax Appeals; (2) in failing to find the ordinance is unconstitutional; (3) in finding the facilities to be athletic and recreational; and (4) in awarding penalties, collection fees, interest and attorney’s fees.

The trial court gave a full, well reasoned opinion for its judgment. After carefully considering the facts as disclosed by the record and the arguments of counsel, we conclude that the trial court was eminently correct in its findings of fact and law and we adopt its reasons for judgment as our own. We set forth those reasons in full:

EFFECT OF THE DECISION OF THE BOARD OF TAX APPEALS

The above-quoted language of the ordinance is identical to the language of the state sales tax statute, R.S. 47:301(14)(b). The Collector of Revenue for the State of Louisiana had previously made an assessment against “Oak Park Swedish Health Spa.” Oak Park Swedish Health Spa was the name under which the former owner of these facilities had operated. The decision of the Board of Tax Appeals dated October 25,1976, cancelled the assessment. Defendant contends that by virtue of this decision, the City is estopped from making its assessment. The defendant further contends that the matter is res judicata.

Counsel for defendant has made a very learned and detailed argument in support of defendant’s position. The court has considered the argument, but concludes that the City is not bound by the Board of Tax Appeals decision, either under estoppel principles or the principle of res judicata. Among its findings and conclusions contrary to the contentions of defendant are these. Neither of the parties to the Board of Tax Appeals case is a party to the present suit, nor is there sufficient identity of interest and privity among the parties for the judgment to be binding on the City. There has been no conduct or representations on the part of the City to cause the defendant to rely on such conduct and change its position to its detriment; the defendant has not in fact relied on any conduct or representation of the City, or of the State, for that matter; and there has been no change in defendant’s position, much less a change to its detriment because of any reliance on representations by the State or the City. The requirement under the estoppel doctrine that there be a representation by a party cannot be extended to include the outcome of a trial between one who makes a representation (the representation allegedly being the assessment of the tax by the State) and another party. Finally, the court concludes that the City is not an ayant cause and does not share the same quality as parties with the State.

Opposition to the assessment of a tax by one taxing authority because of a ruling by one tribunal adverse to another taxing authority in a dispute with another party under similar circumstances is certainly understandable. But the legal principles asserted in support of this opposition are simply not applicable and do not furnish a legal basis for invalidating the tax assessment at issue here.

CONSTITUTIONALITY OF THE ORDINANCE

The court does not agree with defendant that utilization of the words “amusement, entertainment, or recreational facilities” and “dealer” is overly broad, vague, and in violation of Article 1, Section 3 of the Louisiana Constitution of 1974 and the Fourteenth Amendment.

There is no evidence to support the contention that the sales tax sought to be imposed discriminates against the defendant by subjecting its property to a tax not imposed upon others in the same class.

There is no constitutional prohibition against causing this defendant to go to court to defend this suit in spite of the fact that a former owner of the facilities had previously been successful in the hearing before the Board of Tax Appeals.

The court concludes that the ordinance is not unconstitutional.

MERITS

The question is: Does the .defendant’s operation fall within the ambit of the statute for purposes of imposition of the tax?

Defendant sells membership fees to members of the public for the use of its facilities. The facilities include a small swimming pool, a sauna, steam room, a whirlpool, exercise machines, weights and sun lamps. Defendant presented a number of witnesses who testified that they go to the spa solely for reasons of health, some having been recommended to do so by their doctors. There was testimony of the health benefits derived from the use of these facilities. In fact, it was stipulated that health benefits are received by the members from the use of these facilities. For purposes of this decision, the court will assume that all users of the facilities pay their fees with the expectation of receiving some health benefits, and that all do receive some such benefits. But this, in itself, does not preclude these facilities from being athletic and recreational facilities, and thus, place defendant’s operation outside the ambit of the ordinance. The further additional fact that no competitive athletic contests are conducted at the spa or sponsored by the spa, and that no facilities are available for athletic games such as tennis, etc. does not mean that the facilities cannot be considered athletic facilities.

Facilities which increase one’s athletic abilities are athletic facilities, whether or not one chooses to use his increased athletic abilities competitively. These facilities are designed to, and presumably do, increase one’s strength and stamina, cause loss of excess weight, and in general, improve one’s physical fitness. Swimming and weight lifting are athletic sports, even though the participant does not engage in them competitively. Furthermore, undoubtedly, some of defendant’s clients do use their increased athletic abilities as a result of use of these facilities, in engaging in competitive athletic events. The conclusion is inescapable that these facilities which offer improved physical fitness through their use are athletic facilities.

They are also recreational facilities. There was testimony to the effect that after use of these facilities, one is refreshed, both in body and in mind. Stress is relieved. Are these not the purposes and results of recreational activities?

While one may be motivated to join the spa to improve an arthritic or heart condition, and not to improve their athletic abilities so that they can engage in athletic events competitively, nor because they “enjoy” using the facilities, this does not mean that these facilities are neither athletic nor recreational. The results are both recreational and improved physical fitness.

For these reasons, the City is entitled to recover the sales tax due on the fees collected for the use of these facilities. The evidence supports the correctness of the amount sued for.

Accordingly, judgment will be rendered in favor of the plaintiff and against the defendant in the amount of $1,179.18, including taxes, penalties, interest, collection fee, and attorney’s fees for the period of January 1, 1981, through September 30, 1981.

Judgment will further be rendered making the rule issued herein absolute, prohibiting the defendant from further pursuit of business until such time as it has paid the delinquent taxes, interest, etc. to the plaintiff.

Costs to be paid by defendant.

Appellant’s technical defenses primarily focus on judicial estoppel, equitable estoppel and res judicata. The common law doctrine of judicial estoppel does not apply in Louisiana. Doyle v. State Farm (Mut.) Ins. Co., 414 So.2d 763 (La.1982). The doctrine of equitable estoppel is recognized in this State but estoppels are not favored in law because they bar the normal assertions of rights. Guillory v. Calcasieu Parish Police Jury, 410 So.2d 1213 (La.App. 3rd Cir.1982). Three of the elements of estoppel required before the court can invoke the doctrine are: (1) a representation by conduct or word; (2) justifiable reliance; and (3)a change of position to one’s detriment because of the reliance. Guillory, supra. These three elements are not present in this case.

The doctrine of res judicata also is not available as a defense. LSA-C.C. art. 2286 requires that the thing demanded be the same, the cause of action be the same, and the parties be the same. In the present case we agree with the trial court’s determination that neither of the parties to the Board of Tax Appeals case is a party to the present suit. Also, the tax sought in the first suit was a 5% state sales tax assessed in a prior year, not the 1% city sales tax for the period from January 1, 1981, through September 30, 1981. See Carre v. City of New Orleans, 6 So. 893 (La.1889).

Appellant makes the additional argument on this appeal that the trial court erred in awarding the sum of $1,179.18 to the city because this sum inequitably included penalties, interest, collection fees and attorney’s fees. This argument has no merit. The record clearly reflects that at trial defendant’s counsel stipulated that the sum of $1,179.18 was the correct assessment under the ordinance if judgment were rendered in favor of the plaintiff. The stipulation is binding on defendant. See Western Surety Company v. Avoyelles Farmers Co-Operative, 277 So.2d 627 (La.1972); Belle Chasse Cabinet Works, Inc. v. Jenkins, 380 So.2d 717 (La.App. 4th Cir.1980). The trial court’s award was correct.

For the above reasons, the judgment of the trial court is affirmed at defendant-ap-, pedant’s costs.

AFFIRMED.


author: FORET, Judge. STOKER, Judge,

text:
    Robert C. GREEN, et al., Plaintiffs-Appellees, v. SUPERIOR OIL COMPANY, et al., Defendants-Appellants.
    No. 83-263.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.

      William H. Syll, Jr., Lafayette, for defendants-appellants.
    Paul J. Guilliot, Lafayette, for plaintiffs-appellees.
    Dan A. Spencer, Houston, Tex., for defendants-appellants.
    Before FORET, STOKER and YELVER-TON, JJ.
   FORET, Judge.

This is an action for personal injuries and property damages by husband and wife, Robert C. Green and Phyllis Green. The defendants are Superior Oil Company and George D. King. The trial court found for the plaintiffs and assessed damages. The defendants have appealed. In answer to the appeal, Robert C. Green seeks an increase in the amount of damages awarded for his pain and suffering. The issue on appeal is whether the plaintiffs presented sufficient evidence to prove the damages awarded by the trial court.

FACTS

On Wednesday, June 25, 1980, Robert C. Green was driving an automobile owned by his wife, Phyllis Green. That auto was struck by another one owned by Superior Oil Company and being driven by one of its employees, George D. King. The accident was due to the fault of Mr. King while he was acting in the course and scope of his employment. This suit followed.

The only issue at trial was the amount of damages. The court lumped an award of $4,500 for both the pain and suffering and loss of earnings of Robert C. Green. It appears that approximately $3,000 was given for the loss of earnings and $1,500 for the pain and suffering. Phyllis Green was awarded $680.36 for damages to her car.

PROOF OF DAMAGES

In Louisiana tort cases, the plaintiff must prove by a preponderance of the evidence the damages caused by the tort-feasor’s fault. Proof is sufficient to constitute a preponderance when it shows that the fact sought to be proved is more probable than not. Jordan v. Travelers Insurance Co., 257 La. 995, 245 So.2d 151 (1971). Defendants-appellants allege that the plaintiffs did not introduce sufficient evidence to carry their burden.

A. LOSS OF EARNINGS.

The record clearly shows that there was sufficient medical evidence to support the trial court’s conclusion that Mr. Green was prevented from working because of his accident-related injuries. Appellants do not challenge that finding. They do claim, however, that the plaintiffs did not introduce sufficient evidence to justify the trial court’s award for loss of earnings.

The only evidence presented by plaintiffs regarding loss of earnings was their own testimony. Both Mr. and Mrs. Green testified that Mr. Green had been working for a painting contractor in Texas and had been earning $100 per day with a guaranteed minimum of $400 per week. A claim for loss of earnings need not be proved with mathematical certainty, but only by such proof as reasonably establishes a plaintiff’s claim. This may consist only of plaintiff’s testimony, if considered credible by the trier of fact. Bize v. Boyer, 402 So.2d 110 (La.App. 3 Cir.1981), affirmed, 408 So.2d 1309 (La.1982); Ainsworth v. State Farm Automobile Insurance Co., 399 So.2d 1242 (La.App. 3 Cir.1981). Since the trial judge ruled in favor of the plaintiffs, it is obvious that he found their testimony credible. A trial judge’s determination of credibility will not be disturbed absent manifest error. LeBlanc v. Montgomery Ward & Co., Inc., 420 So.2d 1320 (La.App. 3 Cir.1982). Thus, plaintiffs sufficiently carried their burden of proof as to Mr. Green’s loss of earnings.

B. PROPERTY DAMAGE.

Where it is evident that damage has occurred, the trial court is given broad discretion to fix damages even in the absence of specific evidence as to the exact amount. DeRouen v. Department of Transportation & Development, Office of Highways, 392 So.2d 765 (La.App. 3 Cir.1980); Jordan v. Travelers Ins. Co., supra. In reviewing an award of damages, the question is not whether a different award might have been more appropriate, but whether the award of the trial court can be reasonably supported by the evidence and justifiable inferences from the evidence before it. Augustine v. Dickenson, 406 So.2d 306 (La.App. 3 Cir.1981).

According to both Mr. Green and Mr. King’s testimony, the damage done to Phyllis Green’s automobile was a crinkled right fender. As to the precise amount, the only evidence was the testimony of Mrs. Green regarding what she paid to have the car repaired. Mrs. Green testified that she got one estimate for $680.36, but had the car repaired at another place for “about $600” because the second place was cheaper. Since the only evidence as to the exact amount of damages was Mrs. Green’s testimony, the trial court erred in using the $680.36 figure; he should have awarded her the $600. We therefore amend the judgment and award $600 to plaintiff-appellee for damages to her car.

C. PAIN AND SUFFERING.

Appellants do not challenge the trial court’s granting of an award for pain and suffering. Appellee, Robert C. Green, in answer to appeal, seeks an increase in this award. The record shows that Mr. Green suffered a slight cervical strain along with headaches, stomachaches, and earaches. He remained away from work for approximately six weeks because of these injuries. The trier of fact has much discretion in the awarding of damages. LSA-C.C. Article 1934(3); Boswell v. Roy O. Martin Lumber Co., Inc., 363 So.2d 506 (La.1978). We cannot find that the award of the district judge constituted an abuse of his discretion.

DECREE

We amend the judgment below to award plaintiff, Phyllis Green, $600 in property damages. In all other respects, the judgment of the trial court is affirmed. Costs of this appeal are to be borne by defendants-appellants.

AMENDED AND AFFIRMED AS AMENDED.

STOKER, J., concurs in part and dissents in part and assigns written reasons.

STOKER, Judge,

concurring in part, dissenting in part.

With the exception of the award for automobile damages of $600,1 concur in the majority opinion. I would disallow the automobile damages for the reasons given in DeRouen v. Dept. of Transportation and Development, 392 So.2d 765 (La.App. 3rd Cir.1980).

      . Although the better practice is to itemize and apportion damages with reference to a plaintiff’s claim for medical expenses, loss of wages and pain and suffering, it is not required of the trial court. Conway v. Patterson, 201 So.2d 332 (La.App. 2 Cir.1967), writ denied, 251 La. 219, 221, 203 So.2d 555, 556 (1967). Our itemization and apportionment is based on Mr. Green’s absence from work for approximately six weeks with a weekly wage of $500.

      . Although plaintiffs’ evidence is admittedly lacking, the defendants introduced very little in the way of contradictory evidence. This, no doubt, greatly influenced the trial court’s decision.


text:
    Stuart L. WILLIAMS, et ux, Plaintiffs-Appellees, v. Henry PEACOCK, Defendant-Appellant.
    No. 83-265.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.

      Self & Burkett, Don M. Burkett, Many, for defendant-appellant.
    Gahagan & Gahagan, Fred S. Gahagan, Natchitoches, for plaintiffs-appellees.
    Before FORET, STOKER and YELVER-TON, JJ.
   YELVERTON, Judge.

This is a boundary action and an action for damages for trespass to immovable property.

The Williamses brought these actions alleging the boundary line between the contiguous estates had been a fence which the defendant, Henry Peacock, removed and that trees were cleared by the defendant upon the plaintiffs’ estate. The plaintiffs alleged the fence had been in existence in excess of 30 years and that they and their ancestors in title had possessed the land up to the fence during that period. The plaintiffs prayed that the trial court recognize the plaintiffs’ right to possession of the property up to the fence line, that the defendant be ordered to restore the fence to its previous location, and that the defendant be ordered to pay property damages, attorney’s fees and court costs. From' a judgment in favor of the plaintiffs recognizing the former fence line as the boundary between the parties’ two tracts of land and ordering the defendant to replace the fence at his expense and pay the plaintiffs $722.97 in damages for the trespass and court costs, the defendant has appealed. We affirm.

The three issues presented on appeal by appellant are whether 1) the trial court erred in failing to establish the boundary according to the respective titles of the parties, 2) the trial court abused its discretion in failing to appoint a surveyor to establish and mark the proper boundary before judgment, and 3) the trial court abused its discretion in awarding $722.94 in damages for the trespass and $200 as an expert witness fee.

The appellees answered the appeal contending the trial court should have awarded attorney’s fees.

The boundary in dispute is that which lies between the Williams property on the west and the Peacock property on the east. Since before 1937 a fence had been in existence running north and south between the two properties. In December 1981 the defendant took down the fence and cleared and sold timber from the land eight feet west of where the fence had been. The plaintiff and his ancestors in title had used the property up to the fence for grazing cattle and hunting for a period far in excess of 30 years. The plaintiff had put “posted” signs on the fence about 10 years ago. The character of the land was visibly different on opposite sides of the fence. On the west side (Williams estate) there was forest; on the east (Peacock estate) it was apparent the land had once been in cultivation; the trees were young.

The defendant testified that originally there had been three fences running parallel north and south between the two tracts of land. The defendant claimed that the center one of these three fences represented the boundary between the two estates and that it was once located approximately eight feet to the west of the fence which the defendant tore down in 1981. The third fence, according to the defendant’s testimony, had been located approximately eight feet west of the center fence. The defendant and three of his former employees testified that the remains of the two outer fences were in existence in 1967 and that they cut timber to the line represented by the center fence.

Plaintiffs presented testimony which disputed the existence of more than one fence. Plaintiff Williams testified that only one fence has separated the two estates in the past 45 years. Harmon Jamison, an adjacent landowner of both parties, testified he was familiar with the.property since 1949 and that he regarded the fence which the defendant tore down in 1981 as the boundary between the two estates. Mr. Jamison stated no other fence was ever visible. Williams explained that remnants of fence wire could be found near the existing fence because his land had once been divided into fourteen fields, all fenced, and that the boundary fence was intersected at places by these field lines. Other witnesses for plaintiffs testified that there was but one fence which was recognized as the boundary.

The trial court rendered judgment in favor of plaintiffs recognizing the fence location as the boundary. Appellant contends this was error, and that the boundary should have been fixed according to the respective titles of the parties.

La.C.C. art. 794 reads:

Art. 794. Determination of ownership according to prescription
When a party proves acquisitive prescription, the boundary shall be fixed according to limits established by prescription rather than titles. If a party and his ancestors in title possessed for thirty years without interruption, within visible bounds, more land than their title called for, the boundary shall be fixed along these bounds.

As this court stated in Fontenot v. Marks, 430 So.2d 810 (La.App. 3rd Cir.1983):

The applicable law was set forth in LeBlanc v. LaBorde, 368 So.2d 1126 (La.App. 3rd Cir.1979) wherein this court stated:
“[W]here there is a visible boundary and where there has been actual uninterrupted possession, either in person or through ancestors in title, for thirty years or more of the land extending beyond that described in the title and embraced within the visible bounds, then the party who possesses acquires the right to the land beyond their title. William T. Barton Industries, Inc. v. Wellman, 343 So.2d 996 (La.1977); Brookshire v. Guidry, 355 So.2d 559 (La.App. 3 Cir.1978).
The requirements of these articles indicate that one must maintain an enclosure, such as a fence, around the property and exercise open, physical possession as owner for a continuous and uninterrupted period of thirty years. Martin Timber Company v. Taylor, 187 So.2d 196 (La.App. 3 Cir.1966). There must have been not only evidence of a corporeal possession of the property for the required period of time, but also a positive intent to possess as the owner shown by the possessor during the time. William T. Burton Industries, Inc. v. McDonald, 346 So.2d 1333 (La.App. 3 Cir.1977). Finally, the tacking of possession of all predecessors in title is permitted for acquisitive prescription beyond title to a visible boundary. Dubois v. Richard, 223 So.2d 198 (La.App. 3 Cir.1969).”
[1] We note that in a boundary action, the boundary’s location 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. Richardson v. Scrantz, 385 So.2d 1269 (La.App. 3rd Cir.1980); Simmons v. Toliver, 422 So.2d 729 (La.App. 3rd Cir.1982).

In the present case, even assuming that the titles of the parties would have established the boundary eight feet to the west of the fence, the trial court did not err in establishing the boundary line as the former fence line. It is clear from the evidence that the plaintiffs and their ancestors in title had possessed the property up to the fence as owner for more than 30 years. The evidence also preponderates as to the existence of one fence as the boundary between the two estates for at least 30 years. The testimony was undisputed that the trees on the plaintiffs’ side of the fence were much larger, as were those along the fence line itself. This is revealed not only by the testimony but also by the photographs of the stumps in evidence. The evidence did not support defendant’s testimony that he cut the trees in 1967 within the strip eight feet to the west of the fence. We find no disturbances in the plaintiffs’ possession during the 30 year period.

Appellant’s contention that the trial court erred in failing to appoint a surveyor during the proceeding to establish the boundary line according to the titles of the parties is without merit. LSA-C.C.E. art. 3692 leaves the appointment of a surveyor to the discretion of the court. We find no abuse of discretion in the trial court’s decision that a survey was not necessary in order to evaluate the respective contentions of the parties. We note that the trial court did appoint a surveyor to ascertain and locate the common boundary of plaintiffs and defendant as said boundary was established by the judgment (the fence line). This was proper under Morrison Grain Co., Inc. v. Charrier, 410 So.2d 1202 (La.App. 3rd Cir.1982).

As to the award of damages and the expert witness fee we find no abuse of discretion. Marvin Jackson, an expert in the field of timber evaluation, appraised the value of the timber cut by the defendant on the plaintiffs’ property at $722.97, which was the amount the trial court awarded the plaintiffs. This was the only evidence offered regarding the value of the timber.

The plaintiffs answered the appeal contending that the trial court improperly denied attorney’s fees for his successful trespass action. The jurisprudence is well settled that attorney’s fees are not allowable unless they are particularly authorized by law or by a contract between the parties. Gewin v. Willamette Industries, Inc., 406 So.2d 730 (La.App. 3rd Cir.1981). The trial court was correct. There is no authority for awarding attorney’s fees in this case. Gewin, supra.

For the above and foregoing reasons, the judgment appealed by defendant-appellant is affirmed. All costs of this appeal are assessed to defendant-appellant.

AFFIRMED.


text:
    STATE of Louisiana, In the Interest of Keith O’Neal MILES.
    No. 83-456.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.

      Carl Koehler, Alexandria, for defendant-appellant.
    T. Gerald Henderson, Asst. Dist. Atty., Alexandria, for plaintiff-appellee.
    Before FORET, STOKER and YELVER-TON, JJ.
   FORET, Judge.

The State brought this action to terminate the parental rights of Geraldine Miles with respect to her four-year-old son, Keith Miles.

The Alexandria City Court (acting in its capacity as a juvenile court) rendered judgment terminating Mrs. Miles’ parental rights.

Mrs. Miles appeals and raises the following issues:

(1) The trial court erred by allowing in evidence certain testimony given by Dr. Dan Lonowski concerning psychological testing he had conducted on Mrs. Miles approximately two and one-half years prior to the hearing conducted to determine if her parental rights should be terminated.
(2) The trial court erred in applying an incorrect burden of proof by failing to require the State to prove by clear and convincing evidence that Mrs. Miles is unfit to retain parental control over Keith and that she has no reasonable expectation of reformation.
(3) The State failed to show compliance with LSA-R.S. 13:1601(G)(1).

FACTS

The record contains a statement of facts 'prepared by the trial court and the district attorney’s office in compliance with LSA— C.Cr.P. Article 892, prior to its amendment in 1982. The following information is contained in that statement:

“On June 13, 1980, the minor child of Geraldine Miles, Keith Miles, DOB: 2-20 — 79, was admitted to Huey P. Long Hospital, Pineville, Louisiana, with multiple insect bites all over his body and two old circular burns which appeared to be cigarette burns. On July 23, 1980, the child was seen again at Huey P. Long Hospital with fresh cigarette burns on his chest, multiple scratches, a fractured forearm at least seven to fourteen days old, belt marks on his back and marks on his neck resembling rope burns. The child at this time was very withdrawn and had little affect.
Subsequently, the Alexandria Child Protection Agency and the Alexandria Police conducted an investigation which developed witnesses who indicated they had seen the defendant Miles burn the child with a cigarette on several occasions, beat the child with a stick and belt leaving whelps [sic] and bruises. Another witness stated that she had seen the child tied up in a sheet on the floor for “being bad”. The defendant Miles appeared in court for arraignment with her retained counsel, Mr. Kenneth Rodenbeck, on October 22, 1980, and entered a plea of not guilty to the bill of information charging her with Cruelty to a Juvenile. The Trial was set for December 8, 1980. During trial, the defendant Miles was represented by Mr. Kenneth Rodenbeck before a jury of six (6) people. On December 10th, the jury returned a verdict of guilty of Cruelty to a Juvenile against the defendant Miles. A pre-sentence investigation was then ordered by District Court Judge Richard Lee and sentencing was set for March 18, 1981.
On March 18, 1981, the defendant Miles was present in Court with her Attorney Mr. Kenneth Rodenbeck and received a sentence of five (5) years to the Louisiana Department of Corrections.” (Emphasis ours.)
DOCTOR LONOWSKI’S TESTIMONY Mrs. Miles contends that the testimony of

Dr. Lonowski regarding certain psychological testing he had conducted on her should not have been allowed in evidence because the testing had been performed approximately two and one-half years prior to the hearing on the State’s petition to terminate her parental rights. She argues that said testimony was irrelevant.

For evidence to be relevant, it must have some probative value and be reasonably connected to the transaction in question. Associates Financial Services Company, Inc. v. Ryan, 382 So.2d 215 (La.App. 3 Cir.1980); Vignes-Bombet Company, Inc. v. Rowe, 288 So.2d 889 (La.App. 1 Cir.1973). Evidence should not be excluded where it is admissible to prove any hypothesis included in plaintiff’s alleged cause of action. Associates Financial Services Co., Inc. v. Ryan, supra; Goltzman v. Goltzman, 372 So.2d 1262 (La.App. 3 Cir.1979). Finally, the trial court is granted a great deal of discretion in assessing the probative value of evidence. City of Baton Rouge v. Tullier, 401 So.2d 422 (La.App. 1 Cir.1981), writ denied, 406 So.2d 605 (La.1981).

Dr. Lonowski testified that he examined Mrs. Miles on July 28, 1980, at the request of the Alexandria Child Protection Center. At that time, an investigation was being conducted into the alleged abuse of Keith by Mrs. Miles. This psychological examination revealed that Mrs. Miles was suffering from a severe personality disturbance. Dr. Lonowski stated that such individuals usually resist treatment for their mental illness.

■ Dr. Lonowski then testified that he had read certain reports submitted to him by officials of the penal institution where Mrs. Miles was incarcerated. These reports confirmed Dr. Lonowski’s diagnosis, and also revealed that Mrs. Miles was resisting treatment for her condition. After persistent questioning by defense counsel, Dr. Lo-nowski reluctantly opined that with “optimum treatment” Mrs. Miles had a 50/50 chance of becoming a fit parent.

It is clear that the testimony of Dr. Lonowski regarding his psychological examination of Mrs. Miles in 1980 was relevant to the issues before the trial court. Based on this earlier psychological testing and the later reports he received on her, Dr. Lonow-ski was of the opinion that Mrs. Miles’ mental condition was becoming worse. Thus, the evidence complained of was relevant and properly admitted.

BURDEN OF PROOF

A review of the district attorney’s petition shows that LSA-R.S. 13:1601(A) and (C) provide the grounds relied upon for terminating Mrs. Miles’ parental rights.

LSA-R.S. 13:1601(A) and (C) provide:

“§ 1601. Petitioning for the termination of parental rights
The court on its own motion may order that the district attorney petition, or the district attorney in his discretion may petition, for the termination of parental rights of the parent or parents of an abused, neglected, or other child within a juvenile court’s jurisdiction, when the grounds set forth in the petition meet all the conditions of Subsection A, B, C, D, E, or F of this Section. The district attorney may appoint any attorney representing the Department of Health and Human Resources as a special assistant district attorney for the purpose of prosecuting any such case, regardless of the domicile of said special assistant.
A. (1) The abuse or neglect of the child by the parent or parents results from a crime committed against the person of the child or when a parent is an accessory to such a crime.”
(2) The abuse or neglect of the child by the parent or parents consists of cruel and inhuman treatment which is below a reasonable standard of human decency.
(3) The parent is unfit to retain parental control and there is no reasonable expectation of reformation on the part of the parent or parents.
C. (1) The abuse or neglect of the child by the parent or parents results from grossly negligent behavior which directly harms the child.
(2) The abuse or neglect of the child by the parent or parents consists of persistent cruel and inhuman treatment which is below any reasonable standard of human decency.
(3) The parent is unfit to retain parental control and there is no reasonable expectation of reformation on the part of the parent or parents.”

LSA-R.S. 13:1603 provides, in pertinent part, that:

“§ 1603. Adjudication of termination
A. Whenever the court of proper jurisdiction finds that the allegations of Subsection A, B, C, D, E, or F of R.S. 13:1601 are proven true by the evidentiary standards set forth in this Section, it may order the termination of parental rights of the parent or parents against whom the allegations are proven.
Under Subsection A of R.S. 13:1601, Paragraph (1) must be proven beyond a reasonable doubt. Paragraphs (2) and (3) must be proven by clear and convincing evidence.
Under Subsection C of R.S. 13:1601, Paragraph (1) must be proven beyond a reasonable doubt. Paragraphs (2) and (3) must be proven by clear and convincing evidence.”

Mrs. Miles contends that the State has failed to meet its burden of proof under either LSA-R.S. 13:1601(A) or (C), as required by LSA-R.S. 13:1603. We disagree.

Under LSA-R.S. 13:1601(A), the State has proven beyond a reasonable doubt that the abuse or neglect of Keith by Mrs. Miles resulted from a crime committed against the person of the child. As noted above, on December 10, 1980, Mrs. Miles was convicted of the crime of cruelty to a juvenile (Keith), and was sentenced to serve a term of five years with the Department of Corrections. Further, it is obvious that the State has proven by clear and convincing evidence that the abuse or neglect of Keith by Mrs. Miles consisted of cruel and inhumane treatment far below any reasonable standard of human decency. Finally, as noted in the testimony given by Dr. Lonow-ski, Mrs. Miles is unfit to retain parental control, and there is no reasonable expectation of reformation on her part. We conclude that the State has proven this last element by clear and convincing evidence. Thus, we see no need for any discussion of whether the State met its burden of proof with respect to LSA-R.S. 13:1601(C).

NOTICE

Mrs. Miles argues that the State failed to give her notice that she could possibly lose her parental rights because of her incarceration in a state penal institution.

LSA-R.S. 13:1601(G)(1) provides:

“G. (1) Each person who is incarcerated in a state penal institution in this state shall be given and allowed to keep the following notice within forty-eight hours after incarceration:
“Louisiana law provides that your rights as a parent can be permanently terminated under certain circumstances. When parental rights are terminated, a parent loses all rights to visit, have custody of, or make any decisions or exercise any control over his or her minor child, or children.
Your parental rights may be permanently terminated if, after notice by the Department of Health and Human Resources, you fail to provide a plan for appropriate care for your minor child or children during the period of your incarceration.
Please refer to Louisiana Revised Statutes 13:1600 to 1605, especially 1601(E), for the details of Louisiana law on termination of parental rights.”
A copy of La.R.S. 13:1600-1605 shall be attached to the above statement. The superintendent of each penal institution shall keep a signed and dated receipt from each prisoner indicating that he has received and understands the above statement and law. This receipt shall be attached to the permanent file of each prisoner.

It is our opinion that Mrs. Miles (rather than the State) had the burden of proving that she had failed to receive the notice provided for in LSA-R.S. 13:1601(G)(1). In any event, LSA-R.S. 13:1601 contains no reference to sub-paragraph (G)(1) as being an essential prerequisite for the termination of parental rights under LSA-R.S. 13:1601(A) through (F).

ATTORNEY’S FEES

Mrs. Miles’ counsel shows that he is serving as her appointed counsel and has done so since the institution of these proceedings. He further shows that no fee has yet been fixed or paid for services thus far provided. He therefore requests that we fix a reasonable fee based on the amount of time that he has spent working on this case as specified in his brief.

In pertinent part, LSA-R.S. 13:1602(C) provides that,

“... an attorney shall be appointed by the court to represent the parent or parents if the court determines that such parent or parents are indigent and unable to employ counsel solely for that reason, in accordance with the Louisiana Code of Civil Procedure, Articles 5091 through 5098.”

Thus, we will remand this case to the trial court with instructions that it set a reasonable fee for the services provided by Mrs. Miles’ counsel, in accordance with law.

DECREE

For the above and foregoing reasons, the judgment of the trial court, terminating Mrs. Miles’ parental rights with respect to her minor son, Keith Miles, is affirmed. However, the case is remanded to the trial court with instructions that it set a reasonable fee for the services provided by Mrs. Miles’ counsel, in accordance with law.

All costs of this appeal are assessed against Mrs. Miles.

AFFIRMED and REMANDED WITH INSTRUCTIONS.

      . Dr. Lonowski was accepted by the trial court as an expert in the field of clinical psychology.

      . In Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), the United States Supreme Court held that: “Before a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence.” See 102 S.Ct., at 1391.


author: CUTRER, Judge.

text:
    Melvin THIBODEAUX, Plaintiff-Appellant, v. HERCULES, INC., Defendant-Appellee.
    No. 83-266.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.
    Writ Denied Jan. 6, 1984.
    Edwards, Stefanski & Barousse, Russell K. Zaunbrecher, Crowley, for plaintiff-appellant.
    Jones, Tete, Nolen, Hanehey, Swift & Spears, William B. Swift, Lake Charles, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   CUTRER, Judge.

This is a workmen’s compensation claim brought by Melvin Thibodeaux for injuries he allegedly incurred during the course of his employment as relief operator with Hercules, Inc. From a judgment rejecting his demands, Thibodeaux appeals. We affirm.

On June 26, 1979, Thibodeaux was struck .in the back by a forklift and was thrown several feet by the blow. After the accident Thibodeaux went to the plant’s first aid station and was placed on light duty for two weeks, after which he returned to his full duties as an operator. He was paid full wages while on light duty.

Thibodeaux testified that, one month later, he was lifting a pallet when he felt something pull in his back. He stated that, within three or four days, his back returned to the condition that it was in before the lifting incident. Thibodeaux’s job with Hercules was terminated in August 1979. It was stipulated that his discharge was not due to the prior injury but was due to an evaluation of his work performance. Hercules places new employees on probation for four months. At the end of this period, their performance is evaluated in order to determine whether the employee achieves a permanent status.

Following his discharge from Hercules, Thibodeaux worked for approximately eight different firms in jobs that required heavy manual labor, earning as much or more than he did at Hercules. There were no complaints from any of his superiors as to his ability to perform his work. At the time of trial, January 11, 1983, he was employed by Anco Insulators. Thibodeaux stated that he had injured his back several times after leaving Hercules but the episodes of pain would last only two or three days.

Thibodeaux testified that his back pain was intermittent; that is, it would “come and go.” The majority of the time he incurred no pain. He also admitted that he had received a back injury in an automobile accident in 1975. For that injury he had been hospitalized.

After leaving Hercules in August 1979, Thibodeaux did not consult a physician until February 20,1980. On this date he consulted Dr. Percival Kane, a family practitioner. During the period beginning February 20, 1980, through December 10, 1981, Thibo-deaux consulted numerous physicians which included principally those specializing in orthopedic surgery or neurosurgery. From December 10, 1981, until trial, January 23, 1983, Thibodeaux had consulted no physicians.

Dr. Dale Bernauer, an orthopedic surgeon, saw Thibodeaux on several occasions. This physician performed extensive tests including an EMG, nerve conduction study and myelograms. The tests were normal. Dr. Bernauer testified that he could ascertain no objective findings that would support Thibodeaux’s back complaints. Dr. Bernauer stated that Thibodeaux could perform his usual employment duties without experiencing any substantial pain. Other physicians, Dr. Gerald Litel, neurosurgeon, Dr. Norman Morin, orthopedic surgeon, and Dr. Percival Kane, family practitioner, came to the same conclusion reached by Dr. Bernauer.

Dr. Dean Moore, a neurosurgeon, examined Thibodeaux and found no objective findings to support his complaints. He stated that further tests such as myelo-gram, EMG and CAT scan may be advisable. If these were also normal, this would rule out any possible disc problem.

Dr. Homer Kirgis, a neurosurgeon, ran a CAT scan test and clinical examination. His examination of Thibodeaux’s x-rays showed a slight narrowing at the L5-S1 level. He did not consider that this indicated any surgery. Dr. Norman Morin, who had examined Thibodeaux before the accident in question, stated the slight narrowing at the L5-S1 level was present in x-rays taken prior to Thibodeaux’s employment with Hercules. Dr. Morin concluded that this condition did not indicate a disc condition that may produce disability.

Thibodeaux had seen other physicians but these were not called to testify.

The trial court, in its reasons for judgment, found that Thibodeaux did not suffer substantial pain as a result of the accident in question. Thibodeaux’s claim for disability was rejected for these reasons.

Our review of the record convinces us that the trial court was correct in its conclusion. We find no manifest error.

For these’reasons, the judgment of the trial court is affirmed. Melvin Thibodeaux, plaintiff-appellant, is to pay the costs of this appeal.

AFFIRMED.


author: LABORDE, Judge.

text:
    Gene KING, Plaintiff-Appellant, v. WILSON BROTHERS DRILLING CO., INC., Defendant-Appellee.
    No. 83-271.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.
    Writ Denied Dec. 16, 1983.

      Young & Burson, M. Terrance Hoyehick, Eunice, for plaintiff-appellant.
    Allen, Gooch & Bourgeois, Sera H. Russell, Lafayette, for defendant-appellee.
    Before DOUCET, LABORDE and KNOLL, JJ.
   LABORDE, Judge.

Plaintiff, Gene King, filed this workmen’s compensation claim against his employer, Wilson Brothers Drilling Company, Inc., defendant, seeking compensation benefits and medical expenses for an alleged job related heart attack (myocardial infarction). Plaintiff claims that as a result of emotional and physical stress caused by his employment, he suffered chest pains (angina pectoris) at work on several occasions, followed by a heart attack at his home. Defendant denies all liability contending that the heart attack is neither job related nor compensable. The trial court denied all of plaintiff’s demands by dismissing the suit and holding that the injury did not occur, nor arise within the course and scope of plaintiff’s employment. Plaintiff appeals this holding. We affirm.

The plaintiff’s assignments of error present two issues for our consideration:

1) Whether or not a heart attack is an accidental and compensable injury arising out of, and in the course of employment when the employee was not on the job or engaged in the business of his employer when the heart attack occurred; and
2) Whether or not a heart attack resulting from an aggravated pre-existing heart condition, precipitated by alleged job stress, is an accidental injury “arising out of” one’s employment.

The trial court in a comprehensive opinion resolved each of these issues in favor of the defendant.

FACTS

King, a forty-nine year old male, was employed by Wilson Brothers Drilling Company, Inc., as an oil field worker since 1971. During the four months prior to his heart attack King worked as a “driller” on an oil rig platform. His responsibilities included: the management of four personnel workers; maintaining rig operations; and filling out daily reports. The only physical labor required of King was to pull “levers” with a maximum resistance of fifteen pounds while standing up all day. King also had the task of climbing stairs to and from the platform at the beginning and end of each shift.

King had been working twelve (12) hour shifts with twenty-four (24) hours off between each shift, the week of his heart attack. On Wednesday, August 13, 1980, King’s work crew consisted of himself and four others. They worked the 6:00 p.m. to 6:00 a.m. shift beginning Wednesday evening. At the end of the shift, one of the workers informed King that he would not return for the next shift beginning Friday at 6:00 a.m. During the Friday shift another worker was injured, leaving King with two men short for the Saturday shift beginning at 6:00 p.m. King did not have replacements for either of the workers and lost a safety award as a result of the injury to his crewman on the Friday shift.

When King returned home Sunday morning following the Saturday night shift, he began looking for two replacements, to no avail. He went to bed around 10:30 p.m. concerned about showing up with a short crew for the third day in a row. King testified that he feared losing his job due to this crew shortage since he felt responsible for providing a full crew. He was also aggravated with losing the safety award. After retiring on Sunday night King was awakened shortly after midnight with severe chest pains. After a medical examination King was diagnosed to have suffered from a heart attack (myocardial infarction).

King testified that during the last four days at work he felt ill and experienced slight chest pains while climbing the stairs on the rig. These chest pains were diagnosed by his physician, J.T. Thompson, as symptoms of angina pectoris caused by arterial blockages in the heart (arteriosclerosis). Medical experts testified that “stress” is one of several medical factors attributable, in some cases, to arteriosclerosis but would not conclude that stress was the causal link to King’s heart condition or that it precipitated his heart attack.

ISSUE # 1

King contends that his heart attack entitles him to total and permanent disability benefits under the worker’s compensation statute since the injury is work related. The trial court reasoned that he did not suffer a work related disability since he failed to prove his disability was compensa-ble under the Worker’s Compensation Act, LSA-R.S. 23:1021, et seq.

The requirements for a successful claim for worker’s compensation as set forth in LSA-R.S. 23:1031 are as follows:

“If an employee ... receives personal injury by accident arising out of and in the course of his employment, his employer shall pay compensation in the amounts, on the conditions, and to the person or persons hereinafter designated...” (Emphasis added).

An accident occurs “in the course of employment” when it happens during the time of employment and at a place contemplated by the employment. Guidry v. Sline Industrial Painters, Inc., 418 So.2d 626 (La.1982); Lisonbee v. Chicago Mill and Lumber Company, 278 So.2d 5 (La.1973). This showing alone does not satisfy Louisiana’s dual requirement, although it will enhance the worker’s potential for recovery. The additional requirement is that the accident “arose out of” the employment. In order to recover, the employee must establish that he sustained a personal injury by accident under this dual prong theory. Stuckey v. Home Insurance Company, et al., 433 So.2d 776 (3rd Cir.1983) cert. denied 435 So.2d 450 (La.1983); Lonzo v. Town of Marksville, et al., 430 So.2d 1088 (3rd Cir.1983) cert. denied, 438 So.2d 573, 576 (La.1983); Guidry v. Sline Industrial Painters, Inc., supra.

We will first consider whether King was in the course of his employment when he suffered the heart attack (myocardial infarction).

Our review reveals that the severe heart attack occurred while King was at home and asleep, eighteen hours after his last shift and only six hours before his next duty was to begin. Within any construction of the law, clearly, King was not “in the course of” his employment when the seizure occurred. Plaintiff argues that his efforts and time spent at home in attempting to find a full crew may have constructively placed him “in the course of his employment” during the time he spent contacting potential workers. Nevertheless, the precise occasion when King was stricken was substantially removed from those duties in both time and place. The heart attack did not occur at a time or place contemplated by the characteristics of the employment. In other words, it is not reasonably forseeable that a “driller” will sustain work related injuries consistent with the normal occupational risks involved in drilling, at midnight while home asleep.

Plaintiff argues that the trial court erred in concluding that the heart attack occurred on a specific occasion, namely, midnight and at King’s home. Rather, that the heart attack is an accidental and com-pensable injury since the time and place to properly mark the occasion of the heart attack should have been when King experienced chest pains (angina) on the rig, four days prior to the severe heart attack suffered at home. We disagree.

The chest pains occurring at work were diagnosed by Dr. J.T. Thompson as symptoms of angina pectoris, a pre-existing heart condition, resulting from arteriosclerosis. Expert testimony established that the pains are considered as symptoms of a condition, rather than indications of muscle destruction as with a heart attack. Plaintiff has failed to show that the arteriosclerosis was causally linked or related to his employment. Therefore, these symptoms will not be treated by this court as an accidental injury for compensation recovery in this case. We recognize that in Adams v. New Orleans Public Service, Inc., 418 So.2d 485 (La.1981), the Supreme Court held that a very severe and disabling episode of angina pectoris caused by strenuous physical labor, leaving a worker unable to resume his job, will constitute an “accident” or “injury” recoverable under the Worker’s Compensation Statute. However, in this instance, King was not left disabled by the alleged angina that he experienced at work and he was able to continue his duties. We refuse to allow recovery for symptoms and pains caused by a pre-existing disease where the work is no more stressful than everyday life.

In Daney v. Argonaut Insurance Company, 421 So.2d 331 (1st Cir.1982) an ironworker experienced back pains on the job stemming from pre-existing back problems. The court denied recovery, holding that even though plaintiff experienced back pains while on the job, he failed to relate the symptoms to a causally related “accident” or “injury” occurring on the job.

The law imposes upon the plaintiff in compensation cases, as it does in other civil cases, the burden of proving the causal link by a preponderance of the evidence. Prim v. City of Shreveport, 297 So.2d 421 (La.1974). We hold that King has failed to prove by a preponderance of the evidence that his heart attack was causally related to an “accident” or “injury” suffered on the job. Nor has he made an adequate showing that the symptoms of angina constituted a work related “injury” thereby leaving him disabled or by precipitating the heart attack. Therefore, as in Daney, supra, the plaintiff in this instance has failed to prove the causal link between the injury and his employment as a necessary requisite to recovery.

ISSUE # 2

“Arising out of employment” contemplates that the accident will result from some risk to which the employee is subjected to in the course of his employment and to which he would not have been subjected had he not been so employed. Lisonbee, supra. In conjunction with this rule our courts have consistently held that a worker’s pre-existing condition does not bar his recovery when that condition is aggravated by the risks or conditions of his employment. The employer takes the worker as he finds him. Guillory v. United States Fidelity and Guaranty Insurance Co., 420 So.2d 119 (La.1982). King therefore has the burden of showing that the physical or emotional stress from which he suffered was a risk he encountered in the course of his employment and that this risk aggravated his heart condition, resulting in a heart attack. In the recent case of Guidry v. Sline Industrial Painters, Inc., supra, the Louisiana Supreme Court established:

“If the physical exertion, stress, or strain on the job, and preceding the infarction, is no more than the worker would likely have experienced in a non-work situation, the attack may be the result of the natural progression of the pre-existing disease rather than the result of the employment activity. * * *
For the heart accident to arise out of or be connected with the employment, the exertion stress or strain, acting upon the pre-existing disease, must be of a degree greater than that generated in everyday non-employment life (e.g., as compared to the more or less sedentary life of the average non-worker).
In other words if the activities in which the worker with a pre-existing heart disease is engaged, whether for his job usual and customary or not, entail exertion, stress or strain greater than would be involved in everyday non-employment life and he experiences a heart accident, he has made a prima facie showing that the accident arose out of or was connected with, the employment.” (Emphasis added and footnotes omitted).

The trial court found that physical stress was non-existent as a precipitating cause of King’s heart attack. We agree. Further, our review reveals that plaintiff suffered no job related mental stress greater than that involved in everyday, non-employment life. King testified that he feared losing his job for various reasons as already indicated. However, the record is void of any factual evidence, other than the testimony of plaintiff and his wife, tending to show that the fear of losing his job was substantial or justified and greater than other fears that are involved in everyday, non-employment life. For these reasons we hold that King’s heart attack, which may have been precipitated by mental stress, did not arise out of his employment.

We conclude that King has failed to show his heart attack was caused by conditions and factors arising out of the course and scope of his employment and not by other causes to which he and all the rest of society might have been exposed. The testimony fails to show by preponderance that his disability was of a nature characteristic of his employment. Therefore, we agree with the trial court that King’s disability is not compensable under the Worker’s Compensation Act.

Upon further review, we hold that plaintiff’s remaining assignments of error are without merit.

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

AFFIRMED.

      . The word pre-existing is italicized within the case cited above.


author: KLIEBERT, Judge.

text:
    Mary H. Decedue, wife of/and Charles DECEDUE v. GOVERNMENT EMPLOYEES INSURANCE COMPANY.
    No. 83 CA 429.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 9, 1983.
    Rehearing Denied Dec. 19, 1983.
    William W. Hall, Hall, Lentini, Moule-doux & Wimberly, Metairie, for plaintiff-appellant.

      Carmelite M. Bertaut, Hammett, Leake & Hammett, New Orleans, for defendant-ap-pellee.
    Before KLIEBERT, CURRAULT and DUFRESNE, JJ.
   KLIEBERT, Judge.

The trial judge had a combined hearing on the defendant’s, Government Employees Insurance Company (hereafter GEICO), motion for a summary judgment and exceptions of no cause of action and res judicata. He dismissed the motion for summary judgment and the exception of no cause of action, but maintained the exception of res judicata, thus dismissing plaintiff’s suit against GEICO, the plaintiff’s underinsured and uninsured insurance carrier.

The dismissal was grounded in the fact that Mrs. Mary Decedue, wife of/and Charles Decedue, plaintiffs, settled their claims against the alleged tortfeasor (Jack White, Jr. and Ace Transfer Company, Inc.) without reserving their rights against GEI-CO. In the trial court and here, GEICO contends, under Hoefly v. Government Employees Insurance Company, 418 So.2d 575 (La.1982), it was liable in solido with the alleged tortfeasor; hence, under La.C.C. Article 2203, the release of the alleged tort-feasor without reservation of rights against GEICO served to discharge GEICO from the obligation. The trial judge agreed and upheld the exception of res judicata. We affirm.

For the reasons stated by the minority opinions in the Hoefly case, supra, in our view the tortfeasor and GEICO are not solidary obligors. As an intermediate appellate court, however, we are duty bound to apply the holding of the majority opinion in Hoefly, supra. Once the concept of a solidary obligation between the tortfeasor and the under insured or uninsured insurance carrier is accepted, our inquiry is limited to applying the provisions of La.C.C. Article 2203 to the facts presented here.

La.C.C. Article 2203 provides:

“The remission or conventional discharge in favor of one of the codebtors in solido, discharges all the others, unless the creditor has expressly reserved his right against the latter. ■
In the latter case, he can not claim the debt without making a deduction of the part of him to whom he has made the remission.” (Emphasis supplied)

The plaintiffs settled their claim with the tortfeasor and his insurer (who had $100,-000.00 of coverage) for $95,000.00 and executed a release of the tortfeasor, his insurer and “all other persons, firms and corporations from all claims and demands ...” The existence and execution of the release is undisputed.

Clearly, under La.C.C. Article 2203, the failure of the plaintiffs to reserve their rights against GEICO resulted in its discharge. Accordingly, we affirm the judgment of the trial court. Each party to bear his own cost of the appeal.

AFFIRMED.


author: GRISBAUM, Judge.

text:
    Diane ARENA v. WINN-DIXIE LOUISIANA, INC.
    No. 83-CA-418.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 9, 1983.
    Rehearing Denied Dec. 19, 1983.
    Writ Denied Feb. 27, 1984.

      Gordon Hackman, Boutte, for plaintiff-appellant.
    Dan R. Dorsey, River Ridge, for defendant-appellee.
    Before CURRAULT, GAUDIN and GRISBAUM, JJ.
   GRISBAUM, Judge.

This is a personal injury case in which plaintiff Diane Arena appeals the amount of damages awarded. The jury found defendant Winn Dixie negligent and awarded $1500 for past pain and suffering; $500 for future pain and suffering; and $500 for embarrassment and inconvenience. The parties stipulated to the medical bills of $184.99. We affirm.

On April 9,1981 Diane Arena, while shopping in a Winn Dixie food store, slipped in a puddle of wax and fell hitting her head and lower back. Thereafter, she was taken to a hospital emergency room where x-rays were made of her skull and the cervical and lumbosacral spine area. The x-rays were normal. The next day she was examined by Dr. Fleming, an orthopedic surgeon. He diagnosed her condition as acute lumbar sprain. From April 10 through October 30, 1981, she visited Dr. Fleming on four different occasions. Dr. Stokes, an orthopedic surgeon, examined her for Winn Dixie on September 8, 1981.

The sole issue is whether the jury abused its discretion in its award of damages.

Louisiana Civil Code Article 1934(3) and Louisiana Supreme Court cases set forth the principles of appellate review for assessment of general damages. Article 1934(3) provides that in assessing general damages, “much discretion must be left to the judge or jury....” Applying Article 1934(3) to review of damage awards, Supreme Court decisions have indicated a methodology for this review. See, Reck v. Stevens, 373 So.2d 498 (La.1979); Coco v. Winston Industries, 341 So.2d 332 (La.1976); Miller v. Thomas, 258 La. 285, 246 So.2d 16 (1971); Lomenick v. Schoeffler, 250 La. 959, 200 So.2d 127 (1967); Ballard v. National Indemnity Co., 246 La. 963, 169 So.2d 64 (1964); Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963). Only if the record “clearly reveals” that the trier of fact abused its discretion in making its award of damages, can we disturb an award of the trial court. Coco, 341 So.2d 332, 335. Reck v. Stevens explained,

“Before a trial court award may be questioned as inadequate or excessive, the reviewing court must look first, not to prior awards, but to the individual circumstances of the present case.” Reck v. Stevens, 373 So.2d 498, 501 (La.1979).

The record reflects Dr. Fleming’s examination on April 10, 1981 revealed muscle spasm of moderate degree; active motion in the lumbar region 50 percent normal; and restriction of motion in all spheres. A straight leg test produced discomfort in the lower back at 60 degree elevation. He also found she had not experienced nerve damage. On her April 24 visit, she complained of pain in the coccyx area. X-rays of that area indicated some evidence of arthritic involvement and no evidence of fracture. Dr. Fleming testified it is not unusual for arthritis to become symptomatic after a trauma. On August 25, 1981, his examination indicated a lumbar strain, which was in the process of resolution. In addition, he noted some slight restriction of motion but no muscle spasm. Moreover, on cross-examination, he stated his diagnosis was a sprain of the lower back, not an aggravation of an arthritic condition. Finally, he described her lower back injury as mild to moderate. Dr. Stokes, Winn Dixie’s medical expert, testified she sustained contusions to sacral coccygeal region and lumbar strain. He found no nerve route compression or irritation and no mechanical findings. He estimated a three to six week recovery period for this mild to moderate lumbar strain.

After careful review of the record, this court does not find the medical evidence “clearly reveals” an abuse of the jury’s discretion. Therefore, absent an initial determination that the trial court’s very great discretion in the award of general damages has been abused, this court should not disturb the trier’s (jury’s) award. Reck v. Stevens, 373 So.2d 498, 501 (La.1979).

We affirm the judgment of the trial court. The cost of this appeal is assessed against the appellant.

AFFIRMED.