text:
    Johnny H. JOHNSON, Plaintiff-Appellant, v. Matthew B. LARSON, et al., Defendants-Appellees.
    No.. 83-190.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.
    Writ Denied Jan. 16, 1984.

      Louis J. Cosenza, Leesville, for plaintiff-appellant.
    Hall, Lestage & Landreneau, David R. Lestage, DeRidder, Cassandra Simms, Baton Rouge, for defendants-appellees.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   CUTRER, Judge.

This is an appeal from a trial court’s ruling in a non-jury trial which granted the defendants’ motion for judgment of dismissal following the close of the plaintiff’s evidentiary presentation.

The plaintiff, Johnny Johnson, was injured as he was standing between two parked vehicles, and one of them was rear-ended by a car driven by Matthew Larson. Included as defendants were Larson and his insurers, Dairyland Insurance Company (Dairyland) and Nationwide Insurance Company (Nationwide); L.R. Hinson, Jr. and R.E. Berry, Vernon Parish Sheriff’s Deputies; Frank Howard, Sheriff of Vernon Parish; their insurers, North River Insurance Company (North River) and International Surplus Lines Insurance Company (International); Vernon Parish and the State of Louisiana. Howard, Vernon Parish and the State were joined on the theory of vicarious liability, resulting from their employer/employee relationship with Hin-son and Berry. The State filed a third party action against Hinson, Berry, Howard, North River and International in the event that judgment was entered against the State.

Prior to trial, Johnson reached a settlement with Larson, Dairyland and Nationwide, reserving his rights against the remaining defendants.

Plaintiff contended at trial that a legal cause of his injuries was the negligence of Deputies Hinson and Berry in failing to take precautionary steps which could have prevented the accident. At the close of plaintiff’s evidence, the trial court granted the defendants’ motion for dismissal finding that the officers were not negligent in their actions as they owed no duty to secure the scene under the circumstances presented.

From the judgment of the trial court dismissing the suit, plaintiff appeals. We affirm.

Prior to considering the facts and the issue, we take note of the appropriate standard to be used in deciding cases wherein a motion for dismissal is filed in a non-jury trial. LSA-C.C.P. art. 1810(B) provides as follows:

“B. In an action tried by the court without a jury, ,after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.”

And, in Bradley v. Hunter, 413 So.2d 674, 676 (La.App. 3rd Cir.1982), writ den., 415 So.2d 952 (La.1982), this court stated:

“When a motion for a dismissal is-filed under this provision, the proper standard to be applied by the trial court, in ruling upon the motion, differs from the standard to be used when a motion for a directed verdict is filed in a jury trial. In a non-jury trial, the trial judge, upon a motion under art. 1810(B) for a judgment of dismissal (upon completion of the plaintiff’s case), must weigh and evaluate all of the evidence presented up to that point in the trial and must grant dismissal if the plaintiff has not established proof by a preponderance of the evidence. Semien v. PPG Industries, Inc., 413 So.2d 956 (La.App. 3rd Cir.1982); Murray v. Haspel-Kansas Investments, 395 So.2d 453 (La.App. 4th Cir. 1981).’’

Under these principles, we examine the facts to determine whether the trial court was correct in holding that the plaintiff had failed to prove by a preponderance of the evidence that the deputies were negligent.

FACTS

On June 27, 1978, shortly before midnight, the plaintiff, Johnny Johnson, was driving his automobile west on Louisiana 10, a two-lane, hard surface highway in Vernon Parish, when he overtook a car being driven very slowly. The other car was driven by Ms. Tannie Rhodes with whom Johnson was well acquainted. Recognizing Johnson, Ms. Rhodes waved to him for assistance and pulled her car onto the shoulder of the road, completely off the travel portion of the highway. After parking her car, Ms. Rhodes left her headlights burning and also turned on her emergency blinking lights, all of which remained burning until the time of the collision. Johnson passed Ms. Rhodes and turned his car around. He then parked his car on the shoulder facing the Rhodes vehicle. Johnson also left his headlights on so that he could see under the hood of Ms. Rhodes’ car.

The travel portion of Louisiana 10 at that point was clearly distinguished from the hard surfaced shoulder by a white painted line. The evidence establishes that the two cars were completely on the shoulder and clear of the travel lanes of Highway 10. Trooper Merlin Schales, who investigated the accident scene, testified that the hard surfaced shoulder was seven to eight feet wide, enough to allow a car to pull completely from the travel lanes. The plaintiff stated that Ms. Rhodes’ right car wheels were on the dirt about one foot north of the hard surfaced shoulder.

According to Johnson, Ms. Rhodes told him that she was having transmission problems and that earlier that day she had had a vacuum hose installed, which had temporarily solved the problem. Shortly after Johnson and Ms. Rhodes had begun looking for the vacuum hose, Deputies Hinson and Berry arrived at the scene and asked if they “were having trouble.” Ms. Rhodes answered affirmatively, but apparently nothing further was said. The deputies remained at the scene for a few minutes and, after receiving no request for assistance, they left.

Soon after the deputies had departed, a car heading west on Louisiana 10 and driven by Matthew Larson, a soldier stationed at Fort Polk, swerved onto the north shoulder of the road colliding with the rear of Rhodes’ vehicle. At that moment Johnson was standing between his and Rhodes’ cars. The impact of the Larson car forced the parked vehicles together, injuring Johnson’s legs. This suit and appeal followed.

The issue presented on appeal is whether the trial judge correctly ruled that the deputies were not negligent in their failure to secure the scene under the circumstances presented.

THE DUTY OF THE DEPUTIES

To resolve the issue of whether the deputies had a legal duty to remain at the scene and secure the area to protect same, we examine the jurisprudence to determine under what circumstances a traffic officer has the duty to secure a hazardous traffic condition to reduce the risk of accident and injury.

In Curry v. Iberville Parish Sheriffs Office, 405 So.2d 1387, 1389 (La.App. 1st Cir. 1981), writs den., 410 So.2d 1130, 1135 (La. 1982), a deputy came upon a scene of an accident. One of the vehicles involved in the accident partially obstructed the highway. He called the dispatcher and reported the accident but did not take steps to secure the scene and to protect against further accident. Shortly after the accident, an intoxicated driver failed to see the partial obstruction of the highway by the vehicle and struck it causing injuries to the plaintiff. The court held as follows:

“As to the second point, the evidence is clear that a deputy is charged with the responsibility of protecting an accident scene. There is ample evidence that Mr. Daigle had two to three minutes in which to perform that duty, which was more than enough time.”

In Duvernay v. St., Through Dept. of Pub. Safety, 433 So.2d 254, 258 (La.App. 1st Cir.1983), a traffic light at the intersection of two highways was malfunctioning. This condition was reported to the deputy who was dispatcher for the Ascension Parish sheriff. The deputy reported the condition to the State Police. No steps were taken by the deputy to have the intersection secured. An accident occurred at the scene of the malfunctioning light causing injuries. The court found the deputy negligent, stating as follows:

“As did the trial court, we find that once Deputy Melancon became aware of the dangerous traffic situation that existed, he then had the duty to take affirmative action to see that motorists, such as Duvernay, were not subjected to unreasonable risks of harm. He did not fulfill his duty merely by sending the teletype message to the State Police. He was required to do more. He should have ascertained if the message was received. He should have either dispatched a patrolman to the scene immediately or made sure the State Police sent a trooper to secure the intersection. He should have made his replacement fully aware of the circumstances. We agree with the trial judge that the intersection could and should have been secured by the Sheriff’s Department prior to the accident. Deputy Melancon breached the duty placed upon him.”

LeJeune v. Allstate Ins. Co., 365 So.2d 471, 477 (La.1978), presents another example of an officer’s duty of securing a hazardous traffic condition to protect against possible accidents. In this case, a deputy was escorting a funeral procession. Upon arriving at an intersection that was controlled by a blinking light, the deputy led the cortege through a blinking red light without protecting the cortege from traffic proceeding along the street controlled by the blinking amber light. A vehicle proceeding along the favored street at a high rate of speed struck the hearse causing the death of a passenger. In a damage suit by the survivors, the court held as follows:

“The duty breached by Deputy Smith was to secure the intersection in order to give drivers on the favored highway, such as Molitor, warning that the funeral cortege was passing through the intersection, and thus to make it safe for vehicles such as the hearse to ignore the flashing red light. The duty was designed to prevent an intersectional collision involving the funeral procession, with the consequent risk of injuries such as those that killed LeJeune."

The plaintiff relies heavily upon the Le-Jeune case to establish the negligence of the deputies in the case at hand. In his reasons for judgment, the trial judge stated that LeJeune is clearly distinguishable from this case on its facts. We agree with this conclusion.

In each of the three cases we have discussed, Curry, Duvernay and LeJeune, we find common factors existing which attached liability to the officers involved. In each case, an obvious, dangerous traffic condition existed, which condition was known to the respective officers, and the officers had ample time and opportunity to protect the dangerous condition but failed to do so. These factors being present in each of these cases, the officers were found to be negligent.

This brings us to the crucial question in the case sub judice; i.e., were these factors present in this case? As we examine the essential facts we conclude that the factors which created liability of the officers in Curry, Duvernay and LeJeune are not present in this case.

In brief, plaintiff acknowledges that he was unable to find any jurisprudence creating a duty under the peculiar circumstances of the present case; we, also, cannot find any such supporting case law.

On the night of the accident in question, the weather was clear and dry. The highway, at that area, was straight and slightly rolling; there were no obstructions to vision on the highway. When the deputies approached the two parked vehicles, each was parked on the shoulder of the road, completely clear of the travel lanes. Both cars’ lights were burning and Rhodes had turned on her emergency lights. The trial judge found the two cars to be visible from a distance of one quarter to one-half mile. The record supports this finding. Ms. Rhodes admitted that her car was still operable at that time, although it would only travel slowly. Assisting Ms. Rhodes in her repairs was the plaintiff and neither he nor Ms. Rhodes requested the officers’ assistance in any manner.

The two well-lighted vehicles parked upon the shoulder, completely clear of the travel lanes of the highway, created no obvious, dangerous condition for anyone using the highway in a reasonable manner. The deputies could not be expected to anticipate that a driver of a vehicle, under the circumstances presented, would leave the main travel portion of the highway and strike a vehicle parked on the shoulder of the highway. To hold otherwise would place an unreasonable burden upon our law enforcement officers and agencies.

We conclude that the deputies, under the facts presented, did not have a legal duty to protect the parked vehicles against the unforeseeable traffic development that occurred in this case.

Plaintiff argues that the right headlight of the plaintiff’s car was shining in the direction of Larson and that this may have confused Larson causing him to leave the main travel portion of the highway. An expert testified that this could be an explanation of the cause of the accident. This position is speculative as the record does not reflect the reason why Larson left the highway striking the Rhodes vehicle. Again, we point out, Larson’s testimony was not presented at trial. This argument lacks merit.

The trial court correctly granted the defendant’s motion to dismiss.

For these reasons, the judgment of the trial court is affirmed. The costs of this appeal are to be paid by plaintiff-appellant, Johnny H. Johnson.

AFFIRMED.

      . The motion was referred to as a motion for a directed verdict, which is only available in jury trials. This is a non-jury trial and the motion will be treated as a motion for a dismissal under LSA-C.C.P. art. 1810(B).

      . The amount of settlement was $30,000.00.

      . Larson did not testify at the trial. It is not clear what caused him to leave the travel portion of the highway and strike the Rhodes car situated on the shoulder. The investigating officer stated that Larson told him at the accident scene that he went upon the shoulder to avoid a car that was approaching him traveling in Larson’s lane. The officer stated that Ms. Rhodes confirmed this. Ms. Rhodes, at trial, denied telling the officer that an approaching car was involved. Johnson stated that he was unaware of the presence of the fourth car.


source: Caselaw Access Project

author: GUIDRY, Judge.

license: Public Domain

text:
    LOUISIANA ASSOCIATION OF EDUCATORS, et al., Plaintiffs-Appellants, v. CONCORDIA PARISH SCHOOL BOARD, Defendant-Appellee.
    No. 83-191.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.

      Gold, Little, Simon, Weems & Bruser, Charles S. Weems, III, Alexandria, for plaintiffs-appellants.
    John Sturgeon, Ferriday, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   GUIDRY, Judge.

At issue in this suit is the validity of an incentive pay plan adopted by the defendant, Concordia Parish School Board, for the 1981-82 school year. The plaintiffs are the Louisiana Association of Educators (LAE), a statewide organization of persons engaged in the teaching profession, and Fred A. Foster, an LAE member and employee of the defendant school board. The plaintiffs prayed for an injunction to prevent the distribution of any funds pursuant to the contested plan, as well as a declaration that the pay plan was both unlawful and unconstitutional. Following trial of the matter, the trial judge found that the pay plan was not unconstitutional, nor did it violate statutory law. From the dismissal of their demands, the plaintiffs appeal.

The incentive pay plan was adopted by the defendant School Board on July 7,1981. It provided that each employee was allowed ten days of sick leave for the 180 day school year. It further provided that the School Board would pay all certified teachers $40.00 per day for each day of sick leave not used, for a possible total of $400.00. Non-certified personnel and support personnel were also to be paid for sick leave not used, at the rate of $30.00 per day. In addition, a bonus of $100.00 was to paid any employee with perfect attendance throughout the school year. The pay plan was funded out of proceeds from a sales tax authorized by the Concordia Parish Police Jury, with 80% of the proceeds of the sales tax to be used to supplement other revenues available to the school board for the payment of teachers’ salaries.

The instant suit was filed on June 3,1982, following the completion of the 1981-82 school year but prior to the distribution of any funds pursuant to the incentive pay plan. On that date, the trial court denied the temporary restraining order sought by the plaintiffs, but ordered the school board to show cause, on June 18, 1982, why a preliminary injunction should not issue to enjoin the school board from implementing the pay plan.

On June 15, 1982, the School Board instructed its superintendent to calculate the amounts owed school board employees under the plan, and to make the payments. The checks were to be issued to the employees on June 25, 1982.

This matter was heard by the trial court on June 18,1982, after which the trial court took the matter under advisement. On August 30,1982, the trial judge signed written reasons for judgment, wherein he resolved the merits of the case in the school board’s favor. Formal judgment was signed on December 9, 1982.

The plaintiffs contend that the incentive pay plan authorizes a deduction from teachers’ salaries for the use of sick leave in violation of LSA-R.S. 17:1201 et seq. These statutes provide, in part, that all teachers employed by parish school boards are entitled to a minimum of ten days sick leave per school year without loss of pay. Any deduction from a teacher’s pay for the first ten days of absence is prohibited. The plaintiffs also contend that the pay plan constitutes a donation of public funds in violation of Article VII, Sec. 14 of the Louisiana Constitution of 1974, which provides in pertinent part:

“Section 14. (A) Prohibited Uses. Except as otherwise provided by this constitution, the funds, credit, property, or things of value of the state or of any political subdivision shall not be loaned, pledged, or donated to or for any person, association, or corporation, public or private.”

We find it unnecessary to reach the issues raised by the plaintiffs, as the instant suit has become moot.

A moot case is one which seeks a judgment or decree which, when rendered, can give no practical relief. Robin v. Concerned Citizens for Better Education in St. Bernard, Inc., 384 So.2d 405 (La.1980). Courts will not rule on questions of law which have become moot since their decree will serve no useful purpose and afford no practical relief. Jones v. Natchitoches Parish Police Jury, 371 So.2d 1243 (La.App. 3rd Cir.1979); Bradley & Braud, Inc. v. Canady, 342 So.2d 1184 (La.App. 1st Cir.1977).

In the instant case, the plaintiffs seek a declaration that the incentive pay plan in question is unconstitutional and/or unlawful, as well as an injunction to prevent its implementation. The trial court denied the plaintiffs’ request for a temporary restraining order pending the resolution of the law suit. The plaintiffs did not apply for supervisory writs to review this ruling by the trial court. Thus, the School Board proceeded with the implementation of the plan. The funds were scheduled to be distributed on June 25, 1982 and the parties agree that this distribution has taken place. The record shows that the Con-cordia Parish School Board had not adopted such an incentive pay plan prior to the 1981-82 school year, and that there were no plans to re-institute the plan in future years. Under these circumstances, a declaration by this court concerning the validity of the pay plan would serve no useful purpose, nor could it afford the plaintiffs any practical relief, since the plan in question has been fully implemented, and the record does not indicate that there is any likelihood that any similar plan will be adopted in the future.

Accordingly, the plaintiffs’ appeal is dismissed as moot. All costs are assessed to plaintiffs-appellants.

APPEAL DISMISSED.


text:
    BANK OF SOUTHWEST LOUISIANA, Plaintiff-Appellee, v. Horace J. THIBODEAUX and Janice A. Thibodeaux, Defendants-Appellants.
    No. 83-208.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.

      Donald Soileau, Mamou, for defendant-appellant.
    Kenneth Ray Rush, Oakdale, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   GUIDRY, Judge.

Defendant, Janice A. Thibodeaux, has appealed devolutively from a judgment rejecting her petition for an injunction arresting a seizure and sale under executory process.

Although able counsel for defendant-appellant has presented interesting arguments that the sale should have been enjoined, we have concluded these issues are now moot. The record reflects that the sale was held before the motion for a devolutive appeal was filed.

Under these facts, the jurisprudence is firmly established that the appeal is subject to dismissal for mootness. A few of the many cases dismissing appeals in similar situations are: City Finance Company of Alexandria, Inc. v. Johnson, 410 So.2d 1189 (La.App.3rd Cir.1982); Bradley and Braud, Inc. v. Canady, 342 So.2d 1184 (La.App. 1st Cir.1977); Ford Motor Credit Company v. Guillory, 335 So.2d 36 (La.App. 3rd Cir. 1976); Rourke v. Corsey, 334 So.2d 480 (La.App. 3rd Cir.1976); Mr. Pizza, Inc. v. Furlow, 230 So.2d 649 (La.App. 4th Cir.1970); State v. Mutual Inv. Co., 214 La. 356, 37 So.2d 817 (La.1948); Wetherbee v. Lodwick Lbr. Co., 194 La. 352, 193 So. 671 (La.1940).

For the above and foregoing reasons, the appeal herein taken is dismissed. All costs of this appeal are assessed against the defendant-appellant.

APPEAL DISMISSED.


author: GUIDRY, Judge. DOMENGEAUX, J.,

text:
    David PERRODIN, Plaintiff-Appellee, v. Evelyn ZANDER, et al., Defendants-Appellants.
    No. 83-213.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.
    Writ Denied Jan. 16, 1984.

      Gist, Methvin, Hughes & Munsterman, DeWitt T. Methvin, Jr., Alexandria, for defendants-appellants.
    A. Gaynor Soileau, Ville Platte, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   GUIDRY, Judge.

The plaintiff, David Perrodin, brought this suit to recover for personal injuries he sustained when he was struck by an automobile while crossing a street in Ville Platte, Louisiana, in the early morning hours of May 11, 1980. Made defendants were the driver of the automobile, Evelyn Zander, and her insurer, State Farm Mutual Automobile Insurance Company. State Farm was also named as defendant in its capacity as the uninsured motorist insurer of the plaintiff.

The plaintiff filed the instant suit on April 9,1981. In addition to the fifteen day delay for answer provided by LSA-C.C.P. Art. 1001, the plaintiff, in a letter addressed to State Farm’s claim agent, Joe Anding, granted the defendants an extension of thirty days in which to file an answer. When no answer was filed by the defendants within this extended period, the plaintiff entered a preliminary default against both defendants on June 2, 1981. On July 11, 1981, the plaintiff confirmed the default. On July 14, 1981, the trial court rendered and signed a judgment in favor of plaintiff and against defendants awarding $60,000.00 in general damages and $7,632.19 in special damages.

Both defendants timely filed a motion for new trial. Following a hearing on the motion, the trial court issued an order denying the defendants’ motion for a new trial on the issue of “liability” of the defendant, Evelyn Zander. However, the court granted the motion for new trial on the issues of (1) the liability of State Farm as the liability insurer of Evelyn Zander and/or the uninsured motorist insurer of the plaintiff; and, (2) the amount of damages sustained by the plaintiff.

The matter was thereafter brought to trial on the limited issues to be re-tried on August 26, 1982. Before the first witness was called, the plaintiff voluntarily dismissed State Farm from the suit with prejudice. The trial then proceeded on the issue of damages only. The trial judge, after taking the matter under advisement, rendered judgment in favor of the plaintiff against Evelyn Zander for general damages of $26,000.00 and special damages in the amount of $4,793.00. The defendant, Evelyn Zander, appeals.

The defendant asserts that the trial court erred in: (1) granting the original default judgment against her; (2) failing to grant a new trial as to all issues and all parties and entering judgment for the plaintiff after hearing the evidence adduced at the partial new trial; and (3) awarding excessive damages.

CONFIRMATION OF DEFAULT JUDGMENT

The defendant contends that the plaintiff failed to make sufficient proof of his demand in confirming the default judgment, and that the granting of the judgment by the trial court was error.

LSA-C.C.P. Art. 1702 provides that a judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. A prima facie case is established only when the plaintiff proves the essential allegations of his petition to the same extent as if those allegations had been specifically denied. Jim McCary, Inc. v. Price, 391 So.2d 921 (La.App.2d Cir.1980).

The following facts were established by the plaintiff at the hearing to confirm the default judgment. The plaintiff and a companion, Jeanor Paul Fontenot, had been out drinking in Ville Platte, Louisiana, on the evening of May 10 and early morning hours of May 11, 1981. At approximately 3 a.m., Fontenot drove the plaintiff to a local car dealership located on U.S. Highway 167 in Ville Platte, where the plaintiff’s car was parked. The two had decided that the plaintiff would lock his car and allow Fon-tenot to drive him home, the plaintiff being too intoxicated to drive himself. After Fontenot parked on the shoulder of the road across Highway 167 from the car dealership, the plaintiff began to walk, in a southerly direction, across the highway to where his car was parked. As the plaintiff stepped across the center line, into the eastbound lane of travel, he was struck by a vehicle being driven in an easterly direction by the defendant, Evelyn Zander.

Fontenot testified that, while he didn’t see the actual impact, he did see the plaintiff immediately before and immediately after impact. He stated that, as Perrodin was crossing the road, he appeared to notice the headlights of the oncoming vehicle, and raised his hands as if to attempt to stop the vehicle from striking him. Fontenot stated that he turned his head for a moment and did not see Zander’s vehicle strike the plaintiff, but did look again in time to see Perro-din in the air after being struck. Fontenot estimated that the plaintiff had just crossed the center line, and was about two feet into the eastbound lane when he was struck. He stated that the Zander vehicle, although travelling at a normal rate of speed, did not take any evasive action to avoid the accident. He further testified that the area was very well lighted, and that the shoulders of the highway were paved and unobstructed.

Joe Manuel, who investigated the accident for the Ville Platte City Police, also testified at the hearing. He stated that the night was clear, the area was well lighted, and that the shoulders of the road were paved. He further stated that, upon speaking with Zander, he found no indication that she was in an intoxicated or impaired state. The plaintiff testified that he did not recall much about the accident, but did state that, after having crossed a portion of the highway, he saw the approaching car and waved his hands in an attempt to stop the car. He stated that the car continued in its lane of travel until it struck him.

The first duty of those operating motor vehicles is to keep a sharp lookout ahead to discover the presence of those who might be in danger. Baumgartner v. State Farm Mutual Automobile Insurance Company, 356 So.2d 400 (La.1978); Rottman v. Beverly, 183 La. 947,165 So. 153 (1936). In the case of Jackson v. Cook, 189 La. 860,181 So. 195 (1938), the Supreme Court stated:

.. the duty of those in charge of motor cars and engines to look ahead and observe never ceases; that what they can see they must see and in legal contemplation they do see; that their failure to see what they could have seen by the exercise of due diligence does not absolve them from liability.”

In Baumgartner, supra, the Supreme Court discussed the respective duties of driver and pedestrian:

“Accordingly, we hold that the doctrine of “last clear chance” has no application in absolving a motorist from liability when he negligently strikes a pedestrian. In the city a motorist is obligated to maintain a lookout for pedestrians at crosswalks at all times. If he fails to see a pedestrian in a position of peril when he should have, the motorist is at fault and is responsible. A motorist who could have avoided injury to a pedestrian by the exercise of care which is reasonable under the circumstances is at fault, and is responsible. The motorist cannot escape liability by proving that the pedestrian, admittedly in peril because of his own negligence, could have avoided injury more quickly than the motorist. The operator of a motor vehicle, a dangerous instrumentality, has the constant duty to watch out for the possible negligent acts of pedestrians and avoid injuring them. A higher standard of care than that required of pedestrians is imposed upon the motorist commensurate with the hazards his conduct inflicts upon the public safety. Therefore, he should not be able to escape responsibility for injury to the pedestrian by pleading the latter’s negligence. And since, in such case, a plaintiff’s contributory negligence will not bar his recovery, the last clear chance doctrine, used to avoid the harsh effects of the contributory negligence defense, is not at issue.8” (footnote omitted).

We have previously held that the principles of Baumgartner are not limited to situations in which a pedestrian is struck at a crosswalk. Widcamp v. State Farm Mutual Automobile Insurance Company, 381 So.2d 937 (La.App.3d Cir.1980).

In the instant case, the trial judge was apparently impressed by the testimony of the plaintiffs witnesses, and was satisfied that the defendant, Zander, should have seen the plaintiff, and could have, in the exercise of reasonable care under the circumstances, avoided the accident. We find no clear error in his determination. The record shows that Zander was in a very well lighted area, and had an unobstructed view of the plaintiff as he crossed the westbound lane. When the plaintiff stepped an estimated two feet into Zander’s lane of travel and raised his hands in an attempt to stop her, she failed or was otherwise unprepared to take evasive action to avoid striking the plaintiff, despite the presence of a paved shoulder on which to turn. We find that the plaintiff presented sufficient proof of the defendant’s negligence to establish a prima facie case, and that there was no error by the trial court in confirming the default judgment.

GRANT OF PARTIAL NEW TRIAL AND ENTERING JUDGMENT FOR PLAINTIFF AFTER THE PARTIAL NEW TRIAL

The defendant contends that the trial court erred in failing to grant a new trial on all issues as to all parties. In particular, she asserts that a new trial should have been granted on the issue of the liability of Zander.

LSA-C.C.P. Arts. 1971-1973 provides the following with respect to the grant of new trial:

“Art. 1971. Granting of new trial
A new trial may be granted, upon contradictory motion of any party or by the court on its own motion, to all or any of the parties and on all or part of the issues, or for reargument only. If a new trial is granted as to less than all parties or issues, the judgment may be held in abeyance as to all parties and issues.
Art. 1972. Peremptory grounds
A new trial shall be granted, upon contradictory motion of any party, in the following cases:
(1) Where the judgment appears clearly contrary to the law and the evidence;
(2) Where the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial; or
(3) In jury cases, as provided in Article 1814.
Art. 1973. Discretionary grounds
A new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law.”

In the instant case, no peremptory grounds for the grant of a new trial existed. At the hearing on the motion for new trial, the defendant was unable to make a showing that the judgment with regard to the liability of Zander was clearly contrary to the law and the evidence. Likewise, there was no showing that newly discovered evidence had become available. The trial court’s refusal to grant a new trial on the issue of the liability of Zander was not clear error.

Further, the defendant argues that the evidence adduced at the partial new trial, and in particular the testimony of Zander, makes manifest the trial court’s error in refusing to grant a new trial as to all defendants and on all issues. Defendant also urges that this evidence likewise demonstrates the clear error of the trial court in entering judgment for the plaintiff following the partial new trial.

For the reasons which follow, we conclude that the testimony of Zander on partial new trial cannot be considered in determining these issues.

The new trial was granted on the issues of insurance coverage and quantum. At the outset of the partial new trial, State Farm was dismissed from the suit. Thus, the only issue before the court on partial new trial was quantum. Counsel for the plaintiff timely objected to the introduction of any and all testimony regarding the accident itself and in particular to any testimony of Zander on the circumstances surrounding the accident. The trial court allowed the testimony of Zander over objection. . The record does not make clear whether the trial court allowed this evidence over objection or whether it was allowed only under a proffer of proof. However, in any event, such evidence was clearly irrelevant to the only issue to be re-tried, i.e., the amount of damages suffered by the plaintiff. Therefore, this evidence is clearly inadmissible as demonstrating error in the trial court’s entry of judgment for plaintiff, on confirmation of default, and was inadmissible as showing error in failing to grant a new trial to all parties, as such evidence is not shown to be newly discovered.

Finally, appellant urges in brief that the trial court erred in denying Ms. Zander a new trial on the ground that the confirmation of the default judgment by the plaintiff’s attorney without notice to the defendant deprived the defendant of the opportunity to defend the suit. Appellant relies on the recent case of Kem Search, Inc. v. Sheffield, 434 So.2d 1067 (La.1983). In that case, the defendant, Sheffield, brought a suit to annul a default judgment confirmed against him. The suit which resulted in the default judgment was a suit on open account. After filing the suit, the attorney for the plaintiff, Kem Search, granted Sheffield additional time in which to file pleadings. Following some negotiations between the parties concerning possible offset defenses available to the defendant, the attorney for Kem Search entered a preliminary default, and later confirmed it, without giving notice to the defendant, Sheffield. The Supreme Court held that Sheffield reasonably believed that no default would be taken without prior notice to him, and that he was entitled to have the default judgment annulled. Interpreting LSA-C. C.P. Art. 2004, the court stated:

“... Thus, the article is not limited to cases of actual fraud or intentional wrongdoing, but is sufficiently broad to encompass all situations wherein a judgment is rendered through some improper practice or procedure which operates, even innocently, to deprive the party cast in judgment of some legal right, and where the enforcement of the judgment would be unconscionable and inequitable.” (citations omitted)

In the instant case, the defendant did not bring a suit to annul the default judgment, but rather filed a motion for new trial. However, we feel that a party who moves for a new trial, and who properly alleges and proves fraud or ill practices, may be entitled to a new trial on that ground. LSA-C.C.P. Art. 1973, supra.

The defendant herein has failed to allege or prove his entitlement to a new trial on the ground that the default judgment was obtained by fraud or ill practices. In particular, the defendant has failed to properly plead fraud or ill practices in seeking a new trial. When pleading fraud or mistake, the circumstances constituting fraud or mistake must be alleged with particularity. LSA-C.C.P. Art. 856. A petition seeking to annul a judgment on the ground of fraud or ill practices must clearly allege facts from which such elements may be unmistakably concluded in order to state a cause of action. Small v. Wabnig, 305 So.2d 710 (La.App. 4th Cir.1974), writ not considered, 308 So.2d 285 (La.1975). The only ground stated in the defendant’s motion for new trial is that the default judgment is contrary to the law and evidence. We hold that the defendant’s failure to allege any circumstances constituting fraud or ill practices in the motion for new trial precludes any relief based on that ground.

We further observe that, even had the defendant properly alleged fraud or ill practices, such allegations were not proven at the hearing on the motion for new trial. The defendant asserts that communications between the plaintiff’s attorney and State Farm’s claims agent, Joseph Anding, led Anding to reasonably believe that no default would be taken without notice. However, Anding’s own testimony fails to establish any facts which would show that he was misled. The following excerpt is taken from Anding’s testimony on cross examination by counsel for the plaintiff:

“Q. Well, all right. Isn’t this true, at that time I told you that your offer was not acceptable? Perhaps not in the same words I’m telling yon right now?
A. Well, like I say, I can’t tell you exactly what your words were Gaynor, but my feeling when we got through with that conversation was that I was not in any jeopardy about getting some authority-
Q. That was your feeling perhaps, but didn’t I tell you at that time, your offer is way out of the ball park ... or something to that effect ... and that you should go ahead and file your responsive pleadings? I said, you know, negotiations at an end, in effect?
A. I don’t recall that. I’m sorry.
Q. It’s not that you deny I said this in my conversation, you just can’t recall?
A. I can’t deny, but I can’t confirm.”

While Anding’s testimony shows that he had a subjective belief that the plaintiff would not take a default judgment, he fails to show that his belief was reasonable. Under these circumstances, the defendant has failed to show any entitlement to a new trial on the ground that the default judgment was obtained by fraud or ill practices. There was no error in the trial court’s refusal to grant a new trial.

QUANTUM

The trial court awarded the plaintiff $26,-000.00 in general damages and $4,794.00 in special damages. The defendant contends that the general damage award is excessive.

The plaintiff suffered a severe fracture of the left leg in the accident. He was hospitalized in Opelousas General Hospital for a period of eleven days. The plaintiff was required to wear a long leg cast from May 11 until September 2, 1980. Thereafter, he wore a short leg cast until October 21, 1980. Dr. R. Luke Bordelon, the treating physician, stated that the plaintiff’s condition was rather painful, and required the administration of pain medication. Dr. Bordelon found a ¾ inch shortening of the left leg, which resulted in a limp, and assigned a 15% permanent physical impairment of the leg. In addition to the more severe injury to his leg, the plaintiff suffered various abrasions and contusions about the body as a result of the accident.

In assessing damages, much discretion is left to the trier of fact and an award may be disturbed by an appellate court only where the record clearly reveals that the trier of fact abused this discretion in making the award. Coco v. Winston Industries, Inc., 341 So.2d 382 (La.1976). In light of the long recuperative period and the permanent physical impairment of the plaintiff’s leg, we find no abuse of the trial court’s much discretion in the $26,000.00 general damage award.

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

AFFIRMED.

DOMENGEAUX, J.,

concurs in the result. I am not prepared to admit that Baumgartner applies to other than crosswalk situations.


author: KNOLL, Judge.

text:
    Myrtle DAVIS, et ux., Plaintiff-Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al., Defendant-Appellant.
    No. 83-218.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.

      Lunn, Irion, Switzer, Johnson & Salley, Julie Mobley Laffargue, Shreveport, Gaha-gan & Gahagan, Marvin F. Gahagan, Natchitoches, for defendants-appellants.
    Thomas, Dunahoe & Gregory, Edwin Du-nahoe, Natchitoches, for plaintiff-appellee.
    Before DOUCET, LABORDE and KNOLL, JJ.
   KNOLL, Judge.

The defendants, Charles B. Kilgore and his insurer, State Farm Mutual Automobile Insurance Company, appeal a judgment awarding plaintiff, Myrtle Davis, $15,000 for general damages and $9,936 for lost wages. Liability is not an issue in this appeal. The defendants contend that the general damages award was excessive and that the award for lost wages was not supported by evidence. We affirm the trial court’s awards.

GENERAL DAMAGE AWARD

This lawsuit arises out of a two vehicular accident on October 23, 1981 in Natchitoch-es Parish. At the time of the accident, Charles B. Kilgore was operating a 1978 Chevrolet pickup truck and Myrtle Davis was operating a 1973 Oldsmobile. Mrs. Davis was proceeding in an easterly direction along Louisiana Highway 120, and Mr. Kil-gore was proceeding in a westerly direction. A collision between the two vehicles occurred when Mr. Kilgore made a left turn from La. Hwy. 120 into Settle’s Garage.

As a result of the accident plaintiff sustained injuries to her neck, head, knee, and back. She was transported by ambulance to Natchitoches Parish Hospital where she was hospitalized for eight days. Her family physician, Dr. Charles E. Cook, was her treating physician. Medical examination showed that she had a bruised abdomen and knee, a bump above her right eye, and pain in her back and neck. Dr. Cook prescribed pain shots, hot pack treatments, whirlpool baths, and physical therapy. Plaintiff saw Dr. Cook on seven occasions with complaints of headaches, and pain in her back and neck. Four months after the accident plaintiff developed a vision problem and weakness in the right leg. She also described a seizure problem and sought treatment for this at the LSU-Shreveport medical center. According to the medical testimony the seizures were not a result of the accident.

Plaintiff also consulted two orthopedic specialists, Dr. Fox and Dr. Bundrick, both of Shreveport. Dr. Fox’s diagnosis was that plaintiff had suffered multiple sprains including the lumbar spine and the right side of the neck or cervical spine. Dr. Bun-drick’s diagnosis was that plaintiff had suffered a cervical and lumbrosacral myoliga-mentous strain involving the neck region and lower back and a sprain of the right knee. He prescribed a drug to reduce muscular inflammation. Both specialists concluded that continued conservative treatment was appropriate and referred her back to her family physician, Dr. Cook.

Plaintiff consulted Dr. Robinson, an op-thamologist, concerning her complaints of vision problems. Dr. Robinson found that she had an eye deviation called vertical diplopia [objects that are seen double, vertically] caused by muscle weakness. He found this condition to be consistent with the blow to the head plaintiff received in the accident. He described plaintiff’s injury as aggravating and likely to cause headaches. It was his opinion that she would recover within a year.

In the year following the accident plaintiff continued to complain of headaches, pain in her back, neck, and right leg, and weakness in the legs. She testified of her inability to garden, cut wood, fish, and perform common household tasks. Although she attempted to return to work as a waitress she was unable to work one full day because of pain in her arm, back, neck, and leg. In plaintiff’s opinion, her injuries lessened her performance ability by fifty (50%) per cent.

Prior to the accident plaintiff was obese. She also had a dormant osteoarthritic condition in the lower dorsal spine. The medical testimony established that these conditions slowed plaintiff’s recovery.

It is well established that with regard to appellate review of the much discretion of the trier of fact in the award of general damages, the award should not be disturbed unless the appellate court’s examination of the facts reveals a clear abuse of discretion by the trial court. Reck v. Stevens, 373 So.2d 498 (La.1979). In our careful review of the record we are unable to say that the trial court abused its much discretion, therefore the plaintiff’s award for general damages is affirmed.

LOST WAGES

Mrs. Davis testified that she was employed as a waitress at a local restaurant. With her salary and tips she averaged $162 per week. Her duties required standing and frequent lifting of heavy objects. As of the time of trial she had not worked for a period in excess of one year. She attempted to work on one occasion but was unable to continue because of pain in her back, arm, leg and neck. Dr. Cook stated that: “... it would probably be hard for her to do it [return to work] if the back and neck are still hurting her like they have been.”

Defendants assert that plaintiff’s failure to substantiate her loss of wages with tax returns or the testimony of her employer is fatal to her claim for loss of wages. We disagree. It was established in Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971) that claimant’s uncorroborated testimony is sufficient to prove a loss of past wages as long as such proof reasonably establishes the claim. See also Bize v. Boyer, 402 So.2d 110 (La.App. 3rd Cir.1981), affirmed 408 So.2d 1309 (La. 1982). Proof of lost wages is entitled to great weight where the claimant’s testimony is uncontradicted. Ainsworth v. State Farm Auto Ins. Co., 399 So.2d 1242 (La.App. 3rd Cir.1981). On the basis of the record and the trial judge’s observation as a trier of fact we cannot say that the trial court’s award for lost wages was clearly incorrect. Therefore, we will not disturb the trial court’s award for loss of wages.

For the reasons assigned the judgment of the trial court is affirmed at appellants’ cost.

AFFIRMED.


text:
    Barbara SAVOY, Plaintiff-Appellee, v. Charlene CHAPMAN, et al., Defendant-Appellant.
    No. 83-221.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.

      Roy & Hattan, M. Candice Hattan, Lafayette, for defendant-appellant.
    Felix A. DeJean, III, Opelousas, for plaintiff-appellee.
    Harold Andrew, Baton Rouge, Christine O’Brien, Lafayette, for defendant-appellee.
    Before DOUCET, LABORDE and KNOLL, JJ.
   KNOLL, Judge.

On May 26,1980 Barbara Savoy was pedaling her bicycle on Perry Lane in Opelou-sas when a van operated by Charlene Chapman and occupied by her mother, Lois Le-melle, ran her off the road. When the plaintiff attempted to flee, the van made a u-turn and headed back toward her, striking her shoulder with the van mirror located on the passenger side. Plaintiff’s injuries were minor requiring minimal medical treatment. She lost three weeks of work.

Plaintiff instituted suit against Charlene Chapman, the driver, Hanover Insurance Company, the liability insurer of the van, and Lois Lemelle, a passenger who plaintiff contended was a joint venturer with Charlene Chapman. None of these defendants are involved in this appeal.

Hanover Insurance Company denied coverage raising an intentional tort exclusion under its policy. On January 16, 1981 plaintiff amended her suit to make Allstate Insurance Company a party defendant alleging that the other defendants were uninsured. Plaintiff brought this action to recover from Allstate, her uninsured motorist insurer, damages for the personal injuries which she sustained as well as attorney fees under LSA-R.S. 22:658. Allstate filed a general denial answer and a third party demand against the other defendants. The issues presented for our determination are whether the other defendants are uninsured motorists and whether LSA-R.S. 22:658 which provides for the imposition of penalties and attorney fees is applicable to an uninsured motorist claim.

UNINSURED MOTORIST

We find that the Supreme Court’s enunciation in Hart v. Allstate, 437 So.2d 823 (La.1983) is controlling to the case sub judice. It sets forth the standard to be applied in establishing a satisfactory proof of loss of an uninsured motorist claim as follows: (1) the insured must establish that the insurer receives sufficient facts which fully apprise the insurer that the owner or operator of the other vehicle was uninsured or underinsured; (2) that the other vehicle was at fault; (3) that such fault gave rise to damages; and (4) establish the extent of those damages.

Allstate contends that the intentional tort issue had to be litigated. If an intentional tort was not found, then the defendants would not have been uninsured and Allstate would not be liable to plaintiff. We disagree.

The factor which activates the application of the uninsured motorist’s provisions of the Allstate policy is not whether an intentional tort caused the accident but rather, has Hanover denied coverage to its insured. Henry Lemelle, the owner of the van, had a policy of automobile liability insurance with Hanover Insurance Company. Hanover’s policy explicitly excluded intentional torts. Allstate’s policy did not; it defines “an uninsured automobile” as:

“a motor vehicle with respect to the ownership maintenance or use of which there is, ... a bodily injury liability bond or insurance policy applicable at the time of the accident but the company writing the same either has denied coverage thereunder or is or becomes insolvent; ...”

The Allstate policy provides that it will pay all sums which its insured or her legal representative is entitled to recover from the owner or operator of an uninsured automobile.

A third party demand was filed by Charlene Chapman against Hanover. Hanover answered the third party demand and explicitly denied coverage to Charlene Chapman. Throughout the litigation Charlene Chapman had her own legal counsel. The focal point of the pre-trial order and the related motions were to determine whether defendant, Charlene Chapman, had committed an intentional tort. We find that Allstate should have been sufficiently apprised of the uninsured status of the other defendants when Hanover denied them coverage.

The uninsured motorist carrier must be apprised of sufficient facts regarding the question of fault and that such fault gave rise to damages. This requirement assures that the insurance carrier can fully evaluate its liability exposure. The record clearly establishes that Allstate had available to it the pleadings and the numerous depositions of all parties and witnesses. We find that these documents should have sufficiently established the fault of defendant in this accident and that such fault gave rise to plaintiff’s damages.

We also find that through the use of written interrogatories to the plaintiff, and plaintiff’s demand letter of March 24, 1981 for payment of medical bills (which Allstate paid April 7,1981), Allstate was adequately apprised of plaintiff’s damages.

PENALTIES AND ATTORNEY FEES

Although it is not necessary that a proof of loss be in writing or in any other formal style, one who claims penalties and attorney’s fees under LSA-R.S. 22:658 has the burden of proving that the insurer received satisfactory proof of loss as a necessary predicate to a showing that the defendant was arbitrary, capricious or without probable cause in failing to pay benefits. Riverland Oil Mill v. Underwriters for Lloyds, 368 So.2d 156 (La.App. 2nd Cir. 1979), writ refused, 369 So.2d 1365 (La. 1979); Gatte v. Coal Operators Casualty Co., 225 So.2d 256 (La.App. 3rd Cir.1969), reversed on other grounds, 256 La. 325, 236 So.2d 485 (1970).

The purpose of LSA-R.S. 22:658 is to insure that an insurance carrier which is fully apprised of the facts and circumstances which establish the plaintiff’s right to recovery does not arbitrarily or capriciously deny any amount of a claim that is due. Allstate denied liability. Allstate claims it never received a proof of loss. Allstate instructed its attorney not to enter into any type of negotiations. We find that plaintiff has met the requirements of LSA-R.S. 22:658 and that Allstate was arbitrary and capricious in denying plaintiff’s claim.

The plaintiff has answered the appeal asking for an increase in the award of attorney’s fees. The trial court awarded the sum of $5,000. In making this award the trial court found there was extensive pre-trial work in addition to a two day jury trial. We do not find any abuse of the trial court’s discretion and find the award of attorney’s fees to be adequate.

For the foregoing reasons the judgment of the trial court is affirmed. Costs of this appeal are assessed to defendant-appellant, Allstate Insurance Company.

AFFIRMED.


text:
    June M. ROBERTS, Plaintiff-Appellee, v. SONIC DRIVE IN OF MARKSVILLE, INC., and North River Insurance Company, Defendants and Appellants.
    No. 83-224.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.
    Writ Denied Jan. 16, 1984.
    Trimble, Randow, Percy, Wilson & Foote, Elizabeth E. Foote, Alexandria, for defendants and appellants.
    William J. Bennett, Marksville, for plaintiff-appellee.
    Before DOUCET, LABORDE and KNOLL, JJ.
   KNOLL, Judge.

Mrs. June M. Roberts filed suit to recover workmen’s compensation benefits. The trial court found that Mrs. Roberts had sustained a work-related accident and found her partially disabled under the workmen’s compensation statute entitling her to $163 per week beginning March 11, 1981 and continuing during her disability for a maximum of 450 weeks, plus medical, penalties, interest and attorney fees. The defendants, Sonic Drive In of Marksville, Inc. (hereafter Sonic) and its workmen’s compensation carrier, North River Insurance Company, contend that (1) the trial court erred in finding a causal connection between Mrs. Roberts’ angina attacks and her residual disability; (2) the trial court erred in overruling defendants’ plea of prescription; and (3) the trial court erred in awarding penalties and attorney’s fees.

FACTS

Mrs. Roberts, 44 years of age, ivas employed as the manager of the Sonic in Marksville. As part of her employment Mrs. Roberts supervised the work of more than thirteen employees, ordered the various food items, handled the payroll, did some of the cooking, took food orders from customers, and was primarily responsible for cleaning the restaurant. Her job further required her to lift heavy objects, weighing thirty-five to fifty pounds. She averaged nine to ten hours a day and had worked at the Sonic approximately four years.

On March 11, 1981, while managing the Sonic, Mrs. Roberts began to suffer severe chest pains immediately after she lost her temper because the kitchen was left dirty from the night before. Later that day she saw her family physician, Dr. L.J. Mayeux. It was Dr. Mayeux’s opinion that Mrs. Roberts was suffering from angina pectoris. Dr. Mayeux admitted Mrs. Roberts to Marksville General Hospital that same day for further testing. While hospitalized she continued to suffer severe chest pains and was transferred to St. Francis Cabrini Hospital in Alexandria on March 24,1981 where an angiogram was performed. It was then that Mrs. Roberts was diagnosed as suffering from a severe coronary disease with significant blockages of the left interior descendant and the right coronary artery. Plaintiff was later transferred to Ochsner Clinic in New Orleans where a double bypass operation was performed. Plaintiff has not worked since March 11, 1981.

CAUSATION

Defendants contend that there was no causal connection between Mrs. Roberts’ employment, and any disability that resulted following the angina attack on March 11, 1981.

We find that Mrs. Roberts sustained an accident while performing her managerial duties for Sonic as defined in LSA-R.S. 23:1021(1):

.. [an] unexpected or unforseen event happening suddenly or violently, with or without human fault and producing at the time objective symptoms of an injury”

When Mrs. Roberts arrived at work at 8:30 a.m. on March 11, 1981, she found the kitchen dirty with greasy tables from the previous night. The kitchen needed to be cleaned and she was going to have to do it. This caused her to lose her temper. She suddenly felt dizzy and experienced pain in her arms and chest. She took a nitroglycerin tablet which had been prescribed for her the day before and sat down at her desk. Plaintiff then sought medical attention which resulted in her hospitalization and surgical treatment.

Three medical experts testified that the activities performed by Mrs. Roberts during her employment could cause angina pains. From the medical testimony and the circumstances surrounding the March 11,1981, angina attack it was established that Mrs. Roberts suffered a job-related accident. See Gipson v. Dresser Indus. Valve Ops., Etc., 428 So.2d 1338 (La.App. 3rd Cir.1983), writ denied 433 So.2d 161 (La.1983); Guillory v. U.S. Fidelity & Guar. Ins. Co., 420 So.2d 119 (La.1982).

Although plaintiff’s arteriosclerosis condition was determined to have been developing over a period of time this pre-ex-isting condition does not bar recovery under the Louisiana compensation statute. Gipson, supra; Guidry v. Serigny, 378 So.2d 938 (La.1979). The Louisiana Workmen’s Compensation statute extends protection to the abnormally susceptible worker because an employer receives the worker as he first employs him. Allor v. Belden Corp., 393 So.2d 1233 (La.1981).

For the determination of causation in a heart disease case the standard was established in Guillory, supra. See also Gipson v. Dresser, supra. The Guillory court, quoting in part from Bertrand v. Coal Operators Casualty Company, 253 La. 1115, 221 So.2d 816 (1969), stated:

“ ‘The legal criterion in compensation cases involving heart disease should be whether the accident caused a change in the employee’s physical condition which is disabling, and not whether the accident changed the diseased organ of the employee. The residual condition from an accidental injury which substantially increases the possibility of recurrence of a disabling or death-dealing episode is legally disabling and is compensable under our Workmen’s Compensation Law. Bertrand, supra [221 So.2d] at 828, quoted in Guillory, 401 So.2d [543] at 550 [ (La.App. 3rd Cir.1981)] (Domengeaux, J. dissenting) (Emphasis supplied).’
“Where there is proof of an accident and of the following disability without any intervening cause it is presumed that the accident caused the disability. It is not necessary to determine the exact cause of the disability. Allor, supra. The criterion for causal connection between the accident and the disability is: ‘has the accident changed the plaintiff’s condition so as to render him disabled and unfit for his former employment.’ Bertrand, supra 221 So.2d at 827.
“The presumption referred to in number three above is rebuttable. Its effect is to shift the burden of proof to the defendant. The defendant bears the burden of coming forward with enough contrary evidence to rebut the presumption. Allor, supra; Haughton v. Fireman’s Fund American Ins., Co., 355 So.2d 927 (La.1978).
“The ultimate determination concerning disability under the worker’s compensation statute is by the courts, not the medical experts. The courts apply legislative definitions to the medical science in order to achieve an equitable and just result. Bertrand, supra [221 So.2d] at 828. ‘Causation is not necessarily and exclusively a medical conclusion. It is usually the ultimate fact to be found by the court, based on all the credible evidence.’ Haughton, supra at 928.’”

Plaintiff had been steadily employed with the Sonic since May, 1977. Through her years of work with Sonic, Mrs. Roberts advanced from fountain worker to store manager. Although plaintiff suffered from a pre-existing arteriosclerotic condition she was nonetheless able to cope with the strenuous work until she suffered a work-stress-related accident on March 11, 1981. Her accident was caused by her work and also partially contributed to by her pre-existing heart disease. Since the accident plaintiff has been unable to resume her pre-accident work. Plaintiff’s disability has been established by the medical testimony.

The employee must establish by a preponderance of the evidence that the effort, stress or strain of work in all reasonable probability contributed in some degree to the heart accident. Shatoska v. Intern. Grain Transfer, Inc., 430 So.2d 1255 (La. App. 1st Cir.1983). If the worker’s activities entail exertion, stress or strain greater than that experienced in a non-work situation and he experiences a heart accident, he has made a prima facie showing that the accident arose out of, or was connected with employment. Guidry v. Sline Industrial Painters Inc., 418 So.2d 626 (La.1982). There is a presumption that Mrs. Roberts’ disability was caused by her March 11, 1981 accident and the defendants have not rebutted this presumption.

Accordingly, we conclude that plaintiff’s disability was caused by the accident. Therefore, the trial court’s determination that Mrs. Roberts was entitled to workmen’s compensation payments for partial disability is affirmed.

PRESCRIPTION

Since Mrs. Roberts filed her suit on March 15, 1982, more than one year from the accident date, March 11, 1981, the defendants contend that one year prescription is applicable. Plaintiff’s suit was filed March 15, 1982.

LSA-R.S. 23:1209 provides, in pertinent part:

.. where the injury does not result at the time of, or develop immediately after the accident, the limitation [of prescription] shall not take effect until the expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.”

The jurisprudential rule of development of injury was thoroughly discussed in Hobley v. Phoenix of Hartford Insurance Company, 233 So.2d 589 (La.App. 4th Cir.1970), which this court recognized in Gipson v. Dresser, supra, and may be stated as follows:

“... ‘development of injury’ means the time from which the employee can no longer pursue his trade and occupation. This does not mean merely occurrence of an incident and pain, but the time when it is manifest to the employee or his employer that he is unable to perform substantially the duties of employment. (Citations omitted.)”

Although Mrs. Roberts’ episode of pain from angina pectoris occurred on March 11, 1981, it was not diagnosed as a disabling condition until March 24, 1981. This is the time when angiograms revealed blockages of Mrs. Roberts’ coronary arteries which deemed her unable to return to her managerial position with Sonic. Until March 24, 1981, Mrs. Roberts had no knowledge of a disabling injury. We, therefore, conclude that plaintiff’s workmen’s compensation suit was timely filed.

PENALTIES AND ATTORNEY FEES

The trial court found that the defendant, North River Insurance Company, was arbitrary and capricious in its refusal to pay any workmen’s compensation benefits to Mrs. June Roberts and awarded her 12% penalty on all past due amounts plus an attorney’s fee of $3,000. Under LSA-R.S. 22:658 penalties and attorney’s fees are imposed where the facts negate any probable cause for non-payment. Moore v. Millers Mutual Fire Ins. Co. of Texas, 406 So.2d 708 (La.App. 2nd Cir.1981), writ denied, 410 So.2d 1132 (La.1982).

Mrs. Roberts testified that she personally contacted her employer in an effort to receive workmen’s compensation benefits. Neither her employer nor its workmen’s compensation insurer responded. Workmen’s compensation benefits have never been offered or paid to Mrs. Roberts. Defendants were aware of plaintiff’s injury, her hospitalization, her disability, and that she did not return to work after March 11, 1981. There is no evidence that either Mrs. Roberts’ employer or its workmen’s compensation carrier made any reasonable effort after March 11, 1981, to ascertain if workmen’s compensation benefits were due.

Defendants contend that prescription was a substantial issue, therefore, they were not arbitrary and capricious in denying workmen’s compensation benefits. We disagree. It was clear that although Mrs. Roberts suffered an angina attack on March 11, 1981, she was not diagnosed as having a disabling condition until March 24, 1981. This was sufficient to alert defendants that prescription was not a substantial issue.

There was no manifest error in the finding of arbitrary and capriciousness by the trial court and in the award of penalties and attorney’s fees as provided by LSA-R.S. 22:658.

For the foregoing reasons the judgment of the trial court is affirmed. Costs of this appeal are assessed to appellants.

AFFIRMED.


author: LABORDE, Judge.

text:
    Glenn MENARD, Plaintiff-Appellant, v. ROY YOUNG, INC., Defendant-Appellee.
    No. 83-226.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.
    Writ Denied Jan. 16, 1984.

      Miller, Miller & Craton, Michael B. Miller, Crowley, for plaintiff-appellant.
    Marcus A. Broussard, Jr., Abbeville, for defendant-appellee.
    Before DOUCET, LABORDE and KNOLL, JJ.
   LABORDE, Judge.

Plaintiff, Glenn Menard (Menard) brought this suit against defendant, Roy Young, Inc. (Young), seeking past due wages, interest, penalties and attorney’s fees under the provisions of LSA — R.S. 23:631 and 632. The trial court rendered judgment in favor of Menard on a cross motion for summary judgment in the amount of $270 for past due wages and $750 attorney’s fees. Statutory penalties were denied by the trial court. The court recognized defendant’s “good faith” error in computation of certain payroll deductions as an equitable defense to the action. Me-nard relies on seven assignments of error seeking interest, penalties, increased attorney’s fees and having defendant cast with costs of court. Young answers the appeal contending that the attorney’s fees were excessive and that Menard should be cast with court costs since the wages due were properly tendered at all times by having deposited the same into the registry of the court. We amend and affirm.

Prior to February 17, 1982, Menard was an employee of Young with a salary of approximately $60 per day. In January of 1982, an error occurred whereby plaintiff was inadvertently paid the sum of $967.49 as a “truck commission” which was due another party. Plaintiff allegedly did not report the error or return the proceeds. In February, the following month, the error was discovered by defendant and deductions from plaintiff’s earnings were then made to correct the previous overpayment. The record is unclear as to whether these deductions were disputed or resulted in plaintiff’s termination from work.

On February 17,1982, Menard voluntarily terminated his employment and demanded his pay. Defendant’s business manager told Menard that he would have to wait until February 27, 1982, a payroll disbursement date, to receive his check. Menard appeared on that date and received cheek # 9275 for $389.72, which covered the payment of wages up until February 15, 1982. Menard had to therefore return on March 12, 1982, to pick up check # 9520 for $116.62 covering wages due from February 15th to February 28th. He negotiated both checks.

Plaintiff subsequently filed suit for wages still due in the amount of $270 and for statutory penalties for the above mentioned delays. In correcting the overpayment, Young deducted the gross overpayment of $967.49 from Menard’s net wages. This resulted in Menard having to pay an additional sum of $270 for withholding which he did not owe. The proper procedure would have been to deduct the gross error ($967.49) from Menard’s gross wagés (before withholding deductions). The error had essentially caused Menard to pay double Federal, State and FICA taxes.

By letter of March 24, 1982, Young, through counsel, admitted that they had erroneously deducted the $270 and enclosed a check for that amount with the following notation:

“If your client wishes to accept it in full payment of all claims, please give it to him. If he is not willing to accept it on these terms, please return it to me and I will deposit it to the Registry of Court.”

Menard refused the conditional tender and the sum was accordingly deposited in the Registry of the Court.

After answering plaintiff’s petition, Young moved for summary judgment with supporting affidavits. The affidavits established that the improper withholding deduction was a “good faith” error. This allegation was viewed by the trial court as an equitable defense to the suit. Plaintiff then moved for a cross summary judgment for demands in his petition. The trial court, without assigning written reasons, dismissed plaintiff’s suit and awarded him $270 in past wages and $750 for attorney’s fees. Court costs were apportioned between the parties. The trial court apparently recognized as valid, the alleged good faith error made by Young, with respect to the double deductions and denied recovery of statutory penalties for failure to pay wages timely. LSA-R.S. 23:631 et seq.

In order for an employer to be held liable for penalty wages, the employer’s actions must have been motivated through bad faith, or he must be found to have acted in an arbitrary or unreasonable manner given the circumstances. Only a “good faith” or “non-arbitrary” defense to liability for unpaid wages will permit the courts to excuse the employer from the imposition of penalty wages. Letulle v. S & E Oil Co., Inc., 387 So.2d 703 (La.App. 3rd Cir.1980); Soday v. Mall Snacks, Inc., 374 So.2d 138 (La.App. 1st Cir.1979).

LSA-R.S. 23:632 is a penal statute and therefore must be strictly construed. Equitable defenses are available and penalty wages are not to be absolutely imposed irrespective of the circumstances. Doucet v. Plantation Manor, Inc., 382 So.2d 984 (La.App. 1st Cir.1980).

With these established principles, we first consider plaintiff’s assignments of error in light of the facts to determine whether Young was in good faith, or had a reasonable basis for withholding Menard’s wages until respective payroll dates.

Clearly, the statute in question requires that the employer pay the employee, who is discharged or resigns, “the amount then due under the terms of the employment ... not later than three days following the date of discharge or resignation.” We further stated in Powell v. Flotation Services, Inc., 413 So.2d 276 (La.App. 3rd Cir.1982), cert denied, 415 So.2d 941 (La.1982) that:

“The employer’s rules, policies or procedures for issuing checks for wages shall not have the effect of extending the three day period set forth for employees who have been discharged or resigned.”

It appears that defendant’s refusal to pay Menard before payroll dates may have been unwarranted. However, this alone does not justify the imposition of statutory penalties since defendant’s motive for delay was not in bad faith. Young sincerely believed that the previous over-payments made to Menard were recoverable, and in good faith felt justified in withholding Menard’s wages until the sum was repaid. In view of plaintiffs impropriety in failing to report the previous overpayment, and considering defendant’s desire to avoid further error, we are convinced that defendant’s cautious withholding of plaintiffs wages for incremental deduction purposes, until scheduled payroll dates, constitutes a sufficient equitable defense.

In Duhon v. Prof Erny’s Music Company, Inc., 328 So.2d 788 (La.App. 3rd Cir.1976), we further held that an employer is not justified in attaching conditions to payments of wages admittedly due. In this instance, the record as well as defendant’s brief, establish that the sum of $270 was admittedly due Menard. Therefore, the conditional offer made by Young to Menard of wages admittedly due was improper. Menard was entitled to his wages without any conditions attached. Again, since the withholding of the wages is deemed by us to have been made in good faith error, we will not allow plaintiff to recover statutory wage penalties. We hold however, that defendant should be condemned to pay the legal rate of interest on the sum of $270 from the date it was conditionally offered to plaintiff and that defendant be cast with costs of these proceedings since this action was necessary to have the defendant’s unwarranted condition removed from wages admittedly due the plaintiff.

For the foregoing reasons, the judgment of the trial court is amended to grant plaintiff the legal rate of interest from the date of the conditional tender of the sum of $270 representing unpaid wages, and to cast defendant with all costs of court; as amended the trial court’s judgment on the motions for summary judgment is affirmed.

AFFIRMED AS AMENDED.

      . Plaintiffs action was brought under the provisions of LSA-R.S. 23:631 and 632 which provide as follows:
      “631. Discharge or resignation of employees; payment within three days after termination of employment
      A.Upon the discharge or resignation of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, not later than three days following the date of discharge or resignation. Said payment shall be made at the place and in the manner which has been customary during the employment, except that payment may be made via United States mail to the laborer or other employee, provided postage has been prepaid and the envelope properly addressed with the employee’s or laborer’s current address as shown in the employer’s records. In the event payment is made by mail the employer shall be deemed to have made such payment when it is mailed. The timeliness of the mailing may be shown by an official United States postmark or other official documentation from the United States Postal Service.”
      B. (omitted)
      C. (omitted)
      “632. Liability of employer for failure to pay; attorneys’ fees
      Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.”


author: DOUCET, Judge.

text:
    Herschel WATSON, Plaintiff-Appellant, v. LOUISIANA PAVING COMPANY, et al., Defendant-Appellee.
    No. 83-230.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.

      Dubuisson & Dubuisson, James G. Du-buisson, Opelousas, for plaintiff-appellant.
    Douglas C. Longman, Jr., of Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Lafayette, for defendant-appellee.

      Before KNOLL, JJ. DOUCET, LABORDE and
   DOUCET, Judge.

In this workmen’s compensation suit, the trial judge found that plaintiff, Herschel Watson, was entitled to total disability benefits at the rate of $97.00 per week from July 18,1978 through October 15,1980, and partial disability payments thereafter until January 2, 1981. In addition, the employer’s insurer was held subject to statutory penalties and attorney’s fees in the sum of $1,500.00. From that judgment, the plaintiff filed a devolutive appeal alleging the following errors:

1) Failure of the trial judge to find plaintiff totally and permanently disabled after October 6, 1980.
2) Failure of the trial judge to award interest on past due benefits, penalties & attorney’s fees.
3) The trial judge erred in awarding only $1,500.00 in attorney’s fees.

Defendants filed an answer to the appeal contending Watson was not entitled to benefits following discharge by his treating physician on March 27, 1979, and denying they acted arbitrarily or without probable cause in terminating benefits on April 4, 1979.

Plaintiff was employed by Louisiana Paving Co. as a general laborer on a construction project on Highway 167 near Opelou-sas, Louisiana. On July 18, 1978, Watson was working as a trainee cement finisher, patching a concrete wall, when he slipped from a ladder and fell to the ground, injuring his back. Plaintiff was sent by his foreman to see the company doctor, Dr. Melancon, in Carenero. After seeing Dr. Melancon, plaintiff was sent home by his foreman. He returned to work the next day but was not able to continue working due to pain in his back. He returned to Dr. Melancon, who referred him to Lafayette General Hospital where he was seen by the emergency room physician, Dr. Hernandez, who subsequently referred plaintiff to Dr. John E. Cobb, an orthopedist in Lafayette.

Dr. Cobb gave Watson conservative treatment for a lumbar strain and saw plaintiff at regular intervals until March 27,1979, at which time plaintiff informed Cobb that he would like to try returning to work. The orthopedist discharged plaintiff and recommended that he resume light duty work and gradually return to his regular employment. Benefits were terminated upon receipt of Dr. Cobb’s release by the employer.

Watson returned to Dr. Cobb on August 8, 1979 and reported that his pain persisted particularly when he exerted himself.

The present suit for benefits was filed on July 30, 1979. Prior thereto, the plaintiff had never asserted any type of claim for personal injuries nor had he ever before been injured while working.

On October 15, 1980, Watson returned to work, engaging in light work (sweeping) on a seasonal basis for Iberia Sugar Co-Op. At the end of the grinding season, -approximately two months later, Watson was laid off. Thereafter, in 1981, plaintiff went to work for Pierson Construction Co. as a general laborer on a road construction project for several weeks. When the project was completed, Watson was laid off.

Subsequently, plaintiff reapplied for work with the defendant and was given a pre-employment physical by Dr. William Melancon on June 2, 1982. At trial, plaintiff admitted that he represented himself to be younger than he actually was when interviewed by Dr. Melancon and also admitted denying any previous accidents. Dr. Melancon pronounced Watson fit for manual employment. Plaintiff began work the next day as a general laborer. His duties were less strenuous than those previously assigned and consisted of constructing light timber frames, nevertheless, plaintiff testified he experienced constant pain.

Appellant contends his injury is such that he can function only with substantial pain and such pain appreciably limits the type of work available to him and diminishes his ability to compete in the labor market. In other words, plaintiff alleges the odd-lot doctrine, as defined in Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980), applies to the facts of this case and therefore he is entitled to total disability compensation beyond the period of total disability determined by the trial judge. However, the plaintiff’s work record and other activities subsequent to the accident indicate otherwise. The factual determination by the trial court as to the extent and duration of disability should not be reversed unless clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). From our review of the record, we cannot say the trial judge’s finding as to the duration of plaintiff’s total disability was clearly wrong.

Similarly, we will not disturb the trial judge’s reasonable inferences of fact relative to the plaintiff’s partial disability during the period following his discharge by Dr. Cobb and ending with his return to construction work. We will not disturb reasonable inferences of fact simply because another result might be just as reasonable, absent manifest error. Canter v. Koehring, 283 So.2d 716 (La.1973). We find no manifest error.

When failure to pay worker’s compensation benefits is found to be arbitrary, capricious or without probable cause, penalties and attorney’s fees are warranted. LSA-R.S. 22:658, Guillory v. United States Fidelity & Guaranty Insurance Co., 420 So.2d 119 (La.1982). Benefits cannot be denied merely on the basis of inconclusive medical reports. Alexander v. Dept. of Culture, Recreation and Tourism, 410 So.2d 1286 (La.App. 3rd Cir.1982); Wiley v. Southern Casualty Insurance Co., 380 So.2d 214 (La.App. 3rd Cir.1980). The issue of whether the refusal to pay compensation benefits was arbitrary and capricious is a factual determination which must be determined upon the merits of each case. Moreau v. Houston General Insurance Co., 386 So.2d 151 (La.App. 3rd Cir.1980). The trial judge’s determination in this regard should not be reversed unless clearly wrong, Arceneaux v. Domingue, supra. The record before us reveals no manifest error.

With regard to attorney’s fees, the amount awarded rests largely on the discretion of the trial court with each case being determined in light of its own facts and circumstances. Melder v. Century Tel. Enterprises, 413 So.2d 1325 (La.App. 3rd Cir.1982). Factors to be considered in determining the amount of attorney’s fees are the degree of skill and ability exercised, the amount of the claim, the amount recovered for the plaintiff and the amount of time devoted to the case. Naquin v. Uniroyal, Inc., 405 So.2d 525 (La.1981).

The trial judge’s discretion in setting attorney’s fees may be properly exercised without the necessity of evidence directly bearing on the amount of the fees since he may draw a reasonable inference from what took place before him of the time spent by the attorney and the value of services rendered. Coulton v. Levitz Furniture Corp., 391 So.2d 80 (La.App. 4th Cir.1980). We consider the award of $1,500.00 to be proper and sufficient. Accordingly, appellant’s request for an increase is rejected.

Insofar as the trial court’s award neglected to award interest, we amend the judgment appealed. Interest on weekly compensation benefits is to be calculated from the due date until paid rather from the date of judicial demand. Rachal v. Highlands Insurance Co., 355 So.2d 1355 (La.App. 3rd Cir.1978); Crockett v. St. Paul Insurance Co., 413 So.2d 949 (La.App. 1st Cir.1982).

Interest is assessed on awards for penalties and attorney’s fees from the date of judicial demand. Baghramain v. MFA Mutual Insurance Co., 315 So.2d 849 (La.App. 3rd Cir.1975).

For the reasons assigned hereinabove, the judgment appealed is affirmed except insofar as said judgment failed to award interest. The judgment is amended so as to award interest in accordance with the views expressed above. Costs of this appeal are to be divided between the parties.

AFFIRMED AS AMENDED.


text:
    George HAYWARD, Jr., Plaintiff-Appellant, v. COMMERCIAL UNION INSURANCE COMPANY, et al., Defendants-Appellees.
    No. 83-236.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.
    Kramer & Hammill, Harry A. Hammill, Alexandria, for plaintiff-appellant.
    Trimble, Randow, Percy, Smith, Wilson & Foote, Lon P. Wilson, Alexandria, for defendants-appellees.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   GUIDRY, Judge.

George Hayward, Jr. instituted this action for worker’s compensation against his former employer, Moore and Grant, Inc., and its worker’s compensation insurance company, Commercial Union Insurance Company, to recover benefits for a personal injury by accident arising out of and in the course of employment. He alleged that the injury produced a permanent total disability of the right hand. He also sought penalties and attorney’s fees.

After trial on the merits, the trial court rendered judgment in favor of defendants and against plaintiff, finding that plaintiff was only entitled to benefits for permanent partial impairment of the right index finger under LSA-R.S. 23:1221(4)(b) and that all benefits to which plaintiff was entitled had been paid. Plaintiff appeals devolutively.

The sole issue presented on this appeal is whether the trial judge erred in failing to find that the plaintiff is entitled to compensation for permanent partial impairment of the right hand under LSA-R.S. 23:1221(4)(e).

FACTS

Plaintiff was injured on June 12, 1981 when a tire mounted on a rim blew off and hit his right hand, lacerating his hand and fracturing his index finger. The laceration began at the web space between the thumb and index finger on the back of the hand. It was seven to eight centimeters in length and went down through the skin into the muscle, but did not involve any nerve or tendon injury. The fracture of the index finger was a spiral fracture of the middle phalanx. Mr. Hayward was treated by Dr. Jack T. Cappel, Jr., who sutured the laceration and put his hand in a splint, which was utilized for about six to eight weeks. Mr. Hayward received out-patient care until July 22, 1981 when he was discharged to return to work on July 24,1981. By report dated August 5, 1981, Dr. Cappel informed Commercial Union of the discharge and opined that there would be no permanent disability.

Mr. Hayward was paid compensation at the rate of $107.21 per week, representing two-thirds of his average weekly wage for seven weeks, for a total of $750.47.

Shortly prior to trial, on October 13,1982, Mr. Hayward was referred to Dr. Cedric Lowrey, an orthopaedic surgeon, for evaluation. Dr. Lowrey felt that Mr. Hayward had a 15 to 20% impairment of the index finger as a result of the accident. Dr. Lowrey found, on examination, evidence of arthritis in both thumbs and indicated that the arthritis would cause a 10% impairment of the right thumb but was unsure as to what portion of this, if any, may have been caused by the accident. Dr. Lowrey further felt that the 10% impairment of the thumb and the 15 to 20% impairment of the index finger would amount to a 5% impairment of the hand as a whole.

Shortly after Dr. Lowrey’s deposition, the defendants filed an amended answer and made an additional unconditional tender of $719.53, representing the balance that would be owed for a permanent partial impairment of the index finger.

The trial judge made the factual finding that, as Dr. Lowrey was unable to say with any degree of certainty that the arthritis in the right thumb was a result of the accident, plaintiff failed to relate the disability resulting from the accidental injury to his index finger to the hand as a whole in any manner other than that the finger forms a component part of the hand. Therefore, plaintiffs recovery of compensation benefits was restricted to the scheduled compensation for loss of use of a finger. In so concluding, the trial judge relied on Nash v. Knoblock, 381 So.2d 404 (La.1980).

Plaintiff relies on Stracener v. United States Fidelity and Guaranty Company, 410 So.2d 1220 (La.App. 3rd Cir.1982), affirmed 420 So.2d 1101 (La.1982) and Ellis v. Bemis Brothers Bag Company, 146 So.2d 667 (La.App. 4th Cir.1962), which pronounce the corollary to the rule of Nash v. Knoblock, supra; that is, if the evidence shows that the injury can be related to the whole hand rather than restricted to a finger, compensation is awarded for the disability of the hand. In both of these cases, the court of appeal, finding no manifest error, affirmed the finding of the trial judge that the plaintiff’s injuries and resulting disability were related to the hand as a whole rather than just a finger.

After a careful review of the record, we find no manifest error in the trial judge’s finding that the evidence in this case failed to relate plaintiff’s accidental injury and resulting disability to the hand as a whole. Therefore, the holdings in Stracener and Ellis, supra, are inapposite.

For the above and foregoing reasons, the judgment of the trial court is affirmed. This appeal is to be at the cost of the plaintiff-appellant.

AFFIRMED.


author: STOKER, Judge.

text:
    Ramon ESTRADA, Plaintiff-Appellant, v. Antoine DOMINO, Defendant-Appellee.
    No. 83-243.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.

      Brittain & Williams, Joe Payne Williams, Natchitoches, for plaintiff-appellant.
    J. Thomas Nelson of Nelson, Nelson & Koch, New Orleans, for defendant-appellee.
    Before FORET, STOKER, and YELVER-TON, JJ.
   STOKER, Judge.

Plaintiff, Ramon Estrada, appeals from a judgment awarding him worker’s compensation benefits in the amount of $49.00 per week for three weeks and $115.00 in medical expenses. He claims on appeal that he is totally and permanently disabled and is entitled to compensation in the amount of $49.00 per week for 500 weeks. He also argues that the trial court erred in failing to award penalties and attorney’s fees. For reasons set out below, we affirm the judgment of the trial court.

FACTS

The accident out of which this suit arises occurred on May 27, 1970, in Natchitoches, Louisiana. Mr. Estrada was a guitarist for Antoine “Fats” Domino. The members of Mr. Domino’s band were travelling in two station wagons from New Orleans to Las Vegas for a scheduled performance. The vehicle in which Mr. Estrada was riding crossed the center line and collided with a tractor-trailer truck.

Mr. Estrada was admitted to the Natchi-toches Parish Hospital where he was found to have a mild concussion, a compression fracture of the 4th lumbar vertebra, and multiple abrasions and contusions. He was discharged from the hospital on June 2, 1970, and returned to New Orleans. At that time Mr. Domino gave Mr. Estrada a plane ticket to take him from New Orleans to his home in Santa Barbara, California. Domino also gave Estrada an undetermined amount of cash.

Approximately three weeks to one month after the accident, Mr. Estrada rejoined the group in Las Vegas for their scheduled performance. He worked for about one month and was then fired for smoking marijuana according to Raymond Allen, Mr. Domino’s valet. He later returned to the band for a short time after which he was again fired due to conflicts with other band members.

This suit was filed on May 26, 1971, but Mr. Domino was not served until March 4, 1976. The matter did not come to trial until September 30, 1982. We note that although Mr. Domino’s liability insurer, United States Fidelity & Guaranty Company, answered the suit and judgment was granted in its favor, it was neither named a defendant in plaintiffs original petition nor does the record show that it was added as a defendant.

Mr. Domino filed a third party claim against his excess liability insurers, but no ruling was made by the trial court on this claim. Silence in the judgment as to this demand constitutes a rejection of the claim. See Fireman’s Fund Insurance Company v. Myrick, 317 So.2d 632 (La.App. 1st Cir.1975), and authorities cited therein'. No claim has been made on appeal regarding these third party defendants, therefore, any judgment in the insurers’ favor has become final.

In Mr. Estrada’s petition he sought relief on the basis of tort liability and, alternatively, under the worker’s compensation law. The trial judge found that no tort liability was proved and awarded compensation only under worker’s compensation. On appeal, plaintiff seeks relief only under worker’s compensation. The only issues before us for determination in this appeal are the extent of Mr. Estrada’s disability and the failure of the trial court to award penalties and attorney’s fees.

DISABILITY

The only medical testimony presented at trial was that of Dr. Cook, a general practitioner, who treated Mr. Estrada when he was at the Natchitoches Parish Hospital. When Mr. Estrada was released from the hospital on June 2, 1970, Dr. Cook recommended that he not return to work for at least three weeks. He anticipated that Mr. Estrada should be able to return at that time.

Dr. Cook did not see the plaintiff again until January 24, 1977, at which time he made no findings of disability. He recorded Mr. Estrada’s complaints and recommended diagnostic tests which were apparently never performed.

Mr. Estrada introduced, over objection, several bills and cancelled checks from various pharmacies and bills from a number of different doctors and emergency rooms dated throughout the 1970’s and 1980’s before trial. However, he offered no evidence to show that these bills were related to the accident of May 27, 1970, other than his own testimony which is discussed below.

According to Mr. Estrada, he returned to work for the rescheduled Las Vegas performance because he needed the money. He testified that as a result of the accident he began to abuse alcohol and drugs in order to deal with his pain. His explanation of his lack of medical testimony was that since he frequently travelled to different cities with the band, and even after he was fired, he would simply go to an emergency room with his complaints and obtain a prescription for pain killers. Mr. Estrada could not remember the names of most of these emergency room doctors nor was he specific as to what treatment he received in the emergency rooms. Mr. Estrada’s testimony regarding his return to work with Mr. Domino and attempts to do other work is also vague and indefinite.

We recognize that the testimony of a worker’s compensation claimant may be sufficient evidence, but where that testimony is the sole evidence, it must be clear and convincing. Crochet v. American Tobacco Company, 407 So.2d 1330 (La.App. 3rd Cir.1981). Although the occurrence of a work-related accident is not disputed, plaintiff has failed to prove that he was disabled by that accident for more than three weeks. Apparently he made no complaints to Mr. Domino or any of his co-workers, and he returned to work with the band at the next available opportunity after the accident. The trial court’s credibility evaluations and findings of fact as to disability in this case are not clearly wrong.

PENALTIES AND ATTORNEY’S FEES

The trial court found that Mr. Domino was not arbitrary and capricious in failing to pay compensation for three weeks based on Dr. Cook’s prognosis or in failing to pay for any medical bill. Because of the peculiar circumstances of this case, we agree.

The only bills admitted into evidence at trial regarding Mr. Estrada’s treatment in Natchitoches immediately after the accident were those submitted by Dr. Cook. There were no bills from the hospital. When questioned, Dr. Cook testified that he did not know if his bill had been paid. Mr. Estrada testified that he had the bills sent to Mr. Domino’s attorney, but the bills admitted into evidence were addressed to Mr. Estrada. There is no evidence that Dr. Cook’s bills were ever submitted to Mr. Domino, but the trial judge did award Mr. Estrada $115 for Dr. Cook’s undated bill.

With regard to the three weeks disability, it is clear that Mr. Domino had notice of the accident and knew that Mr. Estrada was disabled for at least the six days he was in the hospital. (Since Estrada’s disability was in any event limited to three weeks he would not be entitled to compensation for the six days of hospitalization under LSA-R.S. 23:1224.) For the period immediately after Mr. Estrada’s discharge from the hospital, it appears that the band was not working. This time is referred to as a “cooling off” period. When the band returned to its next scheduled performance, Mr. Estrada joined and continued to work until he was dismissed. There is nothing to show that Mr. Domino had notice of any disability continuing after Mr. Estrada’s discharge from the hospital.

For the above reasons, we affirm the judgment of the trial court. Costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.