author: SAMUEL, Judge. BEER, Judge,

text:
    Raymond BUSE v. CITY OF NEW ORLEANS.
    No. 8093.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 1, 1977.
    Rehearing Denied Sept. 8, 1977.
    Writ Refused Oct. 14, 1977.
    Levy & Smith, Thomas A. Gennusa, II, New Orleans, for plaintiff-appellee.
    Thomas P. Anzelmo, Sr., Asst. City Atty., Jackson P. McNeely, Asst. City Atty., New Orleans and Philip S. Brooks, City Atty., for defendant-appellant.
    Before SAMUEL, REDMANN and BEER, JJ.
   SAMUEL, Judge.

On July 8, 1968 plaintiff filed this suit against the City of New Orleans seeking workmen’s compensation benefits for total and permanent disability resulting from an injury sustained when he struck his knee on fire equipment while employed by the New Orleans Fire Department. As amended, the petition alleges the accident occurred on August 21, 1965, but did not manifest itself until July, 1967. On August 31,1973, plaintiff again amended, alleging he was totally and permanently disabled as a result of obstructive lung disease, which disease resulted from inhalation of smoke at a marsh fire on February 10, 1973, and predicated this claim on the workmen’s compensation statute and on R.S. 33:2581, commonly known as the Heart and Lung Act.

To the original petition and the amendments the defendant City filed various exceptions, all but one of which were overruled. Thereafter, the City answered, denying any liability.

The entire matter was submitted by both parties on stipulation, and judgment was rendered in favor of plaintiff, finding him permanently and totally disabled as of February 10, 1973 and awarding him $49 a week from that date for a period not to exceed 500 weeks. Defendant has appealed.

Plaintiff began work as a fireman on August 9,1961. During the first two years he attended several lumber yard fires at which he inhaled and ingested large amounts of heat and smoke. In September and October, 1964 he was treated-for, and lost work as a result of, a bronchitis condition. In February, 1965 plaintiff suffered a chest infection, and lost four more days of employment. Both these conditions occurred during the first five years of his employment with defendant.

Thereafter, petitioner claims he sustained an injury to his knee on August 21, 1965, which did not immediately manifest itself. He was off duty for practically eight months as a result of this condition. He returned to work for three months and was again taken off active duty for a year and eight months because of an infection of his left leg.

No weekly compensation benefits were paid from August 21, 1965 until suit was filed on July 8, 1968. Defendant points out that from the time of the knee injury in 1965 until he returned to work after his leg infection, plaintiff was off duty approximately 2V2 years. Plaintiff was again taken off firefighting duties on September 21, 1968 and worked as a fire dispatcher until January 9, 1972, a period of approximately four years and five months.

Finally, plaintiff asserts he inhaled large quantities of smoke on February 10, 1973 and filed a report on March 8, 1973 that he was disabled by a lung condition caused by “Firefighting over a period of time resulting in chronic obstructive lung disease.”

In this court the City contends the trial court erred: (1) in failing to find plaintiff’s original claim in the petition filed on July 8, 1968 had prescribed in that more than one year elapsed between the alleged injury on August 21, 1965 and the date of filing; (2) in failing to dismiss the supplemental and amending petition of August 31, 1973 (in which the lung condition first was alleged) because it stated a new cause of action arising subsequent to the date of filing the original petition, citing LSA-C.C.P. Art. 1155; and (3) in finding plaintiff totally and permanently disabled as of February 10, 1973 because the evidence was insufficient to establish the lung condition had developed during, and was caused by, his employment as a firefighter and because plaintiff is not entitled to the presumption set forth in LSA-R.S. 33:2581 (that the disease developed during the employment).

Regarding the first contention, the trial court did not conclude plaintiff was entitled to compensation as a result of the 1965 knee injury, but instead based his award on the February 10, 1973 smoke inhalation incident. As plaintiff now concedes the 1965 injury has prescribed, no further consideration need be given it.

With regard to the filing of the supplemental and amending petition in which the lung condition was first set forth, we note the case was submitted to the court for decision upon stipulation of fact ¿nd medical reports. While defendant may be technically correct, the parties do not show they, or either of them, would offer proof as to any other facts if a new suit was filed and it appears that the defendant would not be prejudiced in any way by not requiring plaintiff to file a new suit. Therefore, all facts now being before the court, judicial economy and the fact that this is a suit in workmen’s compensation dictate this matter be decided now.

As to the third contention, the Heart and Lung Act simply provides a presumption that a disease or infirmity of the heart or lungs developed during the firefighter’s employment when it manifests itself after the first five years of work. In this case plaintiff’s lung condition manifested itself prior to the end of the first five years of his employment with defendant, but this fact simply eliminates the presumption that the condition developed during the employment. Under the general workmen’s compensation statute, plaintiff may still recover if he is able to prove his ease by a preponderance of the evidence without the benefit of such presumption.

The Supreme Court dealt with a heart condition in Bertrand v. Coal Operators Casualty Company. In that case the court stated the criterion to establish a causal connection between an accident and disability is whether the accident changed the plaintiff’s condition in such a way as to render him disabled and unfit for his former employment. In so holding the Supreme Court rejected the previous jurisprudence which required positive medical proof that a sudden, undesigned or unexpected accident must either cause or aggravate the disease which is the cause of the disability.

A similar line of jurisprudence clearly establishes a plaintiff’s right to compensation benefits when an injury aggravates a preexisting condition. Moreover, it is well settled that, prior to the effective date of Act 583 of 1975 an employee was entitled to total and permanent disability benefits under the workmen’s compensation statute when he was unable to return to the same or substantially the same employment in which he was engaged at the time of the accident.

In the present case, plaintiff had been working for approximately thirteen months as a firefighter before the incident of smoke inhalation on February 10, 1973. There is nothing in the record to indicate that either the bronchitis condition or the chest infection had anything to do with any disability after February, 1965. Although plaintiff sustained an injury to his knee which resulted in disability for some time, there is nothing to indicate the knee-connected disability interfered with or caused the lung condition or to indicate plaintiff was not satisfactorily performing his duties as a firefighter during the thirteen months preceding February 10, 1973.

The only evidence in the record regarding plaintiff’s obstructive lung disease and the marsh fire incident of February 10, 1973 is the stipulated testimony of plaintiff, Captain Dillenkoffer (now Fire Chief Dillenkof-fer) and plaintiff’s wife and the medical reports of Dr. Carl J. Dicharry, plaintiff’s treating physician, and Dr. Jack P. Ruli, a specialist in internal medicine.

The stipulated testimony of the three lay witnesses contains an account of the severity of the marsh fire and its effect on plaintiff.

Dr. Dicharry found plaintiff totally disabled and recommended he never return to work in smoke or chemical fumes. His reports also establish plaintiff’s admission to treatment was precipitated by the marsh fire of February 10,1973. His report dated November 6, 1975 states:

“I feel that Mr. Buse has chronic bronchial lung disease in part related to his smoking habits but again in part related to an aggravated condition of his smoke inhalation related to his prior work as a fireman.”

In a report dated August 20, 1973 Dr. Ruli states:

“It is my opinion that chronic lung disease develops slowly over a period of years. I am not in a position to state whether or not his illness was caused by fire duty. I definitely feel, however, that fire duty constitutes an aggravating factor.
Because of the nature of this man’s problem, I recommend that he be placed on pension.”

Thus, while it is true plaintiff had a bronchitis episode and chest infection in the past, the record contains sufficient medical evidence to establish the smoke inhalation incident changed plaintiff’s condition in such a way as to render him disabled for further employment. As the Supreme Court said in the Bertrand case:

“We have repeatedly said it is immaterial that the disability could have been brought on by other causes other than trauma, if in fact trauma on the job which meets the standard of ‘accidental injury’ within the workmen’s compensation act is a disabling factor.”

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

BEER, Judge,

dissenting.

I respectfully dissent.

      . The court upheld an exception of vagueness, but allowed plaintiff to amend.

      . During this period plaintiff contends he lost 5 days and defendant contends he lost 11 days.

      . LSA-R.S. 33:2581 provides:
      “Any disease or infirmity of the heart or lungs which develops during a period of employment in the classified fire service in the state of Louisiana shall be classified as a disease or infirmity connected with employment. The employee affected, or his survivors, shall be entitled to all rights and benefits as granted by the laws of the state of Louisiana to which one suffering an occupational disease is entitled as service connected in the line of duty, regardless of whether the fireman is on duty at the time he is stricken with the disease or infirmity. Such disease or infirmity shall be presumed, prima facie, to have developed during employment and shall be presumed, prima facie, to have been caused by or to have resulted from the nature of the work performed whenever same is manifested at any time after the first five years of employment.”

      . See Bertrand v. Coal Operators Casualty Company, 253 La. 1115, 221 So.2d 816.

      . Id.

      . See, for example, Carney v. Liberty Mutual Insurance Company, La.App., 277 So.2d 175; Carter v. Avondale Shipyards, Inc., La.App., 308 So.2d 472.

      . Brooks v. Acme Carton Corporation, La.App., 312 So.2d 924.

      . Supra, note 4.


source: Caselaw Access Project

author: SAMUEL, Judge.

license: Public Domain

text:
    METROPOLITAN NEW ORLEANS CHAPTER OF the LOUISIANA CONSUMERS’ LEAGUE, INC., People Power, Mary Elizabeth Pitts, Flossie Milford Simon, Brenda Davillier, Brother Kieran Dugas, Lynn Terrance, Alonde Harrison, Thelma Gath and Rita R. Smith v. The COUNCIL OF the CITY OF NEW ORLEANS and New Orleans Public Service, Inc.
    No. 8108.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 1, 1977.
    Rehearing Denied Sept. 8, 1977.
    Writ Refused Nov. 4, 1977.

      Garon, Brener and McNeely, John F. Robbert, David A. Marcello, Guy Huard, Jack Mark Stolier and Jane Johnson, New Orleans, for plaintiffs-appellees.
    Burke & Ballard, James G. Burke, Jr. and Arthur A. Crais, Jr., William C. Nelson, New Orleans, for New Orleans Public Service, Inc. defendant-appellant.
    Henry W. Kinney, III, New Orleans, for The Council of the City of New Orleans, defendant-appellant.
    Before SAMUEL, LEMMON and GU-LOTTA, JJ.
   SAMUEL, Judge.

By this suit against The Council of the City of New Orleans and New Orleans Public Service Inc. (NOPSI), plaintiffs seek an injunction prohibiting enforcement of a five cent increase in the transit rate charged by NOPSI, which increase was enacted by the City Council on November 11, 1975. Plaintiffs allege the five cent increase is null and void because the City of New Orleans, and more particularly the City Council, did not give sufficient public notice of the special City Council meeting held on November 11, 1975 at which the increase was approved and thereby deprived plaintiffs and others so situated of due process of law as required by the Home Rule Charter of the City of New Orleans. Defendants answered, averring the validity of the notice and of the rate increase.

After a trial on the merits, there was judgment granting plaintiffs’ prayer for an injunction prohibiting enforcement of the five cent increase. The judgment is based on a finding by the trial court that the increase was null and void because the Council had “failed to follow the prescribed statutory procedures in adopting the transit rate increase.”

NOPSI owns the franchise for electricity, gas and transit service in the City of New Orleans. As a public utility, it is regulated on a unified basis by the City Council.

On April 10,1974 NOPSI filed an application for a ten cent transit rate increase. On October 1, 1974 it filed an application for approval of increases in electric and gas rates and requested an early effective date for the ten cent transit increase for which it applied on April 10, 1974. On November 7, 1974 the City Council granted NOPSI a ten cent transit rate increase, from fifteen cents to twenty-five cents. NOPSI filed no other application for an increase after October 1, 1974.

On December 5, 1974, the City Council adopted procedures for hearings on NOP-SI’s pending application for gas and electric rate increases. These procedures provided for a public hearing “relating to said application . . . ” Plaintiffs argue that because no new application for a transit rate increase was pending, testimony and comment at the public hearing was limited to the October 1, 1974 application relating to gas and electric rates.

Public hearings on the increase in gas and electric rates were held January 6, 1975, April 8, 1975, July 28, 1975, September 24, 1975, and November 5,1975. On November 7, 1975 the president of the City Council directed the Clerk of the Council to call a special meeting for November 11, 1975 for the purpose of making a determination on the application for the rate increases applied for on October 1, 1974.

At its meeting held November 11, 1975 the City Council granted NOPSI gas and electric rate increases and also, by resolution, granted it a five cent transit fare increase, from the twenty-five cents granted one year earlier to thirty cents. Plaintiffs contend the application and the notice of the special meeting of November 11,1975 related only to gas and electric rates, and any increase in the transit rate at that meeting was null and void for lack of proper notice and hearing.

The pertinent portion of the Home Rule Charter regulating the procedure for rate or price changes is § 4-1604, which provides:

“Establishment of Rates. In the exercise of its powers of supervision, regulation and control of any street railroad, electric light, gas, heat, power, waterworks, or other public utility, the Council shall, in cases involving the establishment, change or alteration of rates, charges, tolls, prices, fares or compensation for service or commodities supplied by such utilities, cause notice of the matter to be served upon the person or corporation affected thereby, so that such person or corporation shall have an opportunity, at a time and place to be specified in said notice, to be heard in respect to said matter. The Council shall make all necessary and reasonable rules and regulations to govern applications for the fixing or changing of rates and charges of public utilities and all petitions and complaints relating to any matter pertaining to the regulation of public utilities, and shall prescribe reasonable rules and regulations to govern the trial, hearing and rehearing of all matters referred to herein, under the same procedure as provided for ordinances granting franchises.” (Emphasis ours).

Section 3-112(5)(b) of the Home Rule Charter further provides:

“(5) Proposed ordinances on any of the following specified subjects can be adopted only at a regular meeting of the Council and shall not be adopted until at least twenty-one days after copies thereof shall have been distributed to all members of the Council and made available to the public, nor until a notice of the introduction of such proposed ordinance shall have been published in the official journal of the City not less than one week nor more than two weeks after the introduction thereof, which notice shall state the substance of the proposed ordinance and the date of the meeting at which the Council shall begin its consideration thereof, to wit:
(b) Imposing any license, requiring any permit, establishing any charge for services rendered, not imposed, required, or established at the effective date of this Charter, or increasing the rate of any license, fee, or service charge.” (Emphasis ours).

These provisions are mandatory and have been so held by this court in a recent decision. The above two Home Rule Charter provisions, together with the hereinafter quoted § 4-1602(2), require that when a rate or price alteration or change is sought, the citizens with a pecuniary interest in the ultimate cost of the services of a public utility be given notice of a public hearing in accordance with those provisions so they may be heard thereon.

In addition to the above quoted Home Rule Charter provisions, the trial court concluded the last sentence of Home Rule Charter § 4-1604 also required notice by publication of a meeting to consider a rate increase for utility services. As shown by the above quotation of that section, the last sentence thereof provides the Council “shall prescribe reasonable rules and regulations to govern the trial, hearing and rehearing of all matters referred to herein, under the same procedure as provided for ordinances granting franchises.” In pertinent part, the provision for granting franchises, § 4-1602(2), reads:

“(2) Each such proposed franchise ordinance, after having been introduced in the Council, shall be laid over and published once in full in the official journal. There shall then be published in the official journal three times during each calendar week for the two successive weeks immediately following said publication in full, notices of intention, briefly describing the content of the proposed ordinance and citing where it can be seen. If at any time during such period of publication, any citizen shall file notice with the Clerk of Council of a desire to be heard with respect to the proposed ordinance, it shall be the duty of the Council, after notice thereof in the official journal, to hold a public hearing thereon.”

Whether notice by publication of a utility rate increase is required under § 3-112(5) or under § 4-1602(2) of the Home Rule Charter, or both, the result is inescapable that when a utility rate increase is sought, the required notice by publication must be given in order to afford the public an opportunity to be heard.

Defendants argue that notice of the proposed hearings on increases of electric and gas rates was sufficient notice to justify increase in the transit rate because NOPSI is regulated on a unified basis; that is, when the City Council engages in a proceeding to regulate the rate of any utility, it has the authority to investigate the franchise holder’s entire rate structure, including charges for gas, electricity, and transit. It is true that NOPSI is regulated on a unified basis. But in our view this simply means that the Council can investigate NOPSI’s entire rate structure and the net income derived therefrom for the purpose of reaching a conclusion as to whether an increase in the rates being charged for a particular service is justified. The fact that the Council has such authority does not, by inference, take away from the public the right to notice and hearing of proposed ordinances effecting the particular public utility rate increase being considered. If a rate, price alteration or change is sought by the utility, the public is entitled to notice of the public hearings necessary to effect the same. Such notice must be given in accordance with the Home Rule Charter provisions referred to above and in this case no such notice was given insofar as the contested five cent increase in transit rates is concerned.

In Southern Bell Tel. & Tel. Co. v. Louisiana Pub. S. Com’n, the Supreme Court of Louisiana, in dealing with the Louisiana Public Service Commission’s power to regulate and supervise the control of Southern Bell, stated that while the regulatory commission was authorized to determine the reasonableness of rates and charges made by public utilities, its power and authority to fix rates and charges is limited by provisions of the state and federal constitutions which provide that no person shall be deprived of property without due process of law. The Home Rule Charter of the City of New Orleans clearly sets forth what process of law is necessary to effect a valid change in public utility rates. That process of law was not followed and consequently the five cent transit rate increase cannot stand.

Defendants also argue that information regarding the transit rate increase in suit, together with the fact that the increase would be considered at the November 11 meeting, was contained in articles published in New Orleans newspapers before that meeting and that these articles gave sufficient notice to the public of the proposed increase. The record does contain evidence showing such articles were published. However, these were not the official notices required by the Home Rule Charter and cannot be accepted in lieu thereof.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . See Bagert v. Moreau, La.App,, 325 So.2d 702, 706, writs refused, La., 329 So.2d 465.

      . See Bagert v. Moreau, Id.

      . See Bagert v. Moreau, Id.

      .187 La. 137, 174 So. 180.


text:
    Victor W. CIVELLO, Individually and in his capacity as President of the Elysian Fields Civic & Improvement Association and as Representative of the class of all paying customers of the Sewerage and Water Board of New Orleans v. SEWERAGE AND WATER BOARD OF NEW ORLEANS.
    No. 8287.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 1, 1977.
    Rehearing Denied Sept. 8, 1977.
    Sidney M. Bach, New Orleans, for plaintiffs-appellants, Victor W. Civello, et al.
    John A. Gordon, Vincent T. LoCoco and Richard M. Olsen, New Orleans, for defendant-appellee.
    Jane Johnson, New Orleans, amicus curiae, for Ass’n of Community Organizations for Reform Now, et als.
    James A. Churchill, New Orleans, amicus curiae, for Board of Liquidation, City Debt.
    Before SAMUEL, GULOTTA and BOU-TALL, JJ.
   SAMUEL, Judge.

By this action plaintiff seeks a writ of quo warranto and declaratory relief prohibiting enforcement by the defendant, Sewerage and Water Board of New Orleans (Board), of a 28% water rate increase to private consumers adopted on April 14, 1976. The suit is based on the failure of the Board to obtain prior consent or approval of the Board of Liquidation, City Debt, and the New Orleans City Council.

Following trial, there was judgment in favor of the defendant Board maintaining the legality of the rate increase. Plaintiffs have appealed.

The matters presented for our consideration are controlled by Article 14, § 23 of the Louisiana Constitution of 1921, the provisions of which were continued as statutes by Article 14, §§ 16, 10 of the Louisiana Constitution of 1974. Hereinafter amendments to Article 14, § 23 of the 1921 Constitution generally are referred to by the legislative acts which proposed those amendments.

The Board was created by Act 6 of 1899, which empowered it to fix rates to be charged to private consumers of water. That act was ratified and approved by the 1921 Constitution. No requirement for approval of such rates by any other governmental agency was contained in the 1899 statute. Act 301 of 1948 imposed upon the Board alone the duty to fix rates to be charged private consumers of water adequate to cover not only the expenses of maintenance and operation but also funding of a sinking fund to cover the cost of system renewal, extension, repair, and betterment. The Board was still not required to obtain approval from any other agency. Such approval was required for the first time by Act 767 of 1954, which provided rates to be charged private consumers of water would not become effective without approval by the Board of Liquidation, City Debt.

Act 541 of 1958 provided those rates fixed by the Board would not be effective without approval of both the Board of Liquidation, City Debt, and two-thirds of the New Orleans City Council. This 1958 amendment empowered the Sewerage and Water Board to fund its revenues by issuing water revenue bonds, payable only from the Board’s revenues. It also provided such bonds could only be issued with the consent of the Board of Liquidation, City Debt, and an affirmative vote of two-thirds of the New Orleans City Council. The 1958 amendment further provided procedures to issue these bonds and established debt service requirements for any such bonds issued by the Board.

It is established in paragraph 12 of Article 14, § 23.3 that the authorization by the Board of water revenue bonds and the consent of the City Council and the Board of Liquidation giving their respective approval to the bonds constitutes a contract with the holders of the water revenue bonds who have the right to judicially enforce payment of the bonds and accrued interest in the event of default.

The final addition to the powers and duties of the Board is contained in the fifth paragraph of Article 14, § 23.3 of the 1921 Constitution as follows:

“So long as any of such Water Revenue Bonds shall be outstanding, the Sewerage and Water Board shall fix water rates which shall be sufficient to produce revenues over and above the amount required for operation and maintenance of the Water System of the City of New Orleans, which shall be not less than one hundred thirty per centum (130%) of the maximum amount due in any calendar year for interest, principal and sinking fund payments and debt service reserves on all Water Revenue Bonds then outstanding . . .

The events leading to this law suit can be summarized briefly. Preliminary to increasing water rates, the Board advertised three joint public meetings in accordance with law. After the thirty day legal waiting period, the Board adopted a resolution calling for a 74% rate increase. This increase was approved by the Board of Liquidation, but it did not receive the approval of two-thirds of the City Council. Thereafter, the Board adopted an alternative rate schedule for a limited period of time which proposed a water rate increase to consumers of 40%. This increase also failed to receive approval by two-thirds of the Council. Thereafter, on April 14, 1976, the Board adopted, without the consent or approval of the Board of Liquidation or the City Council, a 28% increase in consumer rates. These Board proposals and its final action on April 14, 1976 were made and taken on the advice of its experts.

Plaintiffs argue the 28% increase is invalid because the Board did not obtain the approval of the City Council and the Board of Liquidation, City Debt. The defendant Board argues under the above quoted fifth paragraph of Article 14, § 23.3 it had the authority and duty to adopt the 28% increase since it was the minimum amount necessary to satisfy its statutory duties of maintaining and operating the New Orleans water system and maintaining revenues at not less than 130% of the maximum amount due in any calendar year for interest, principal, sinking fund payments, and debt service reserves on all water revenue bonds then outstanding.

As stated in his written Reasons for Judgment, the trial judge found there were outstanding water revenue bonds issued by the Board and, prior to the imposition of the water rate increase in suit, the water rates in New Orleans were not sufficient to produce “revenues over and above the amount required for operation and maintenance of the Water System of the City of New Orleans, which shall be not less than one hundred thirty per centum (130%) of the maximum amount due in any calendar year for interest, principal and sinking fund payments and debt service reserves on all Water Revenue Bonds then outstanding.” as required by the above quoted fifth paragraph of Article 14, § 23.3. The record establishes these facts without contradiction. In addition, we are satisfied from our reading of the record that the 28% increase is reasonably the minimum amount necessary to produce the revenues required by the fifth paragraph of Article 14, § 23.3.

Our reading of the pertinent provisions of the 1921 Constitution, together with their legislative history, compels the conclusion that once water revenue bonds are issued and outstanding, the Board has the authority and the duty to fix water rates for private consumers sufficient to produce the required revenues. We reach this conclusion because the 1958 amendment (Act 541 of 1958) to the cited constitutional article and section effected three things at the same time. First, it permitted the Board to fix rates, but only with the concurrence of two-thirds of the City Council in addition to the approval of the Board of Liquidation. Second, it authorized the Board to issue water revenue bonds, also with the approval of the Board of Liquidation and two-thirds of the City Council. Third, it provided “so long as any of such Water Revenue Bonds shall be outstanding, the Sewerage and Water Board shall fix water rates which shall be sufficient to produce revenues . . . ” to operate and maintain the sewerage and water system and to assure collection of 130% of payments due on the outstanding water revenue bonds.

Paragraph one of Section 23.3 requires the approval of the Board of Liquidation and two-thirds of the City Council. The identical approval is required for issuance of water revenue bonds. Once the Board of Liquidation and the City Council approve the issuance of such bonds, the duty to maintain sufficient revenues to service this indebtedness is then passed to the Board itself “so long as any of such Water Revenue Bonds shall be outstanding, . .” In short, once the Board of Liquidation and two-thirds of the City Council approve issuance of water revenue bonds, that act itself empowers the Board alone to fix the rates sufficient to operate and maintain the water system and to service the bonded indebtedness without repeated trips to the Board of Liquidation and the Council for approval of these rates. Clearly, the vesting of such power in the Board was considered necessary in order to insure continuous operation and maintenance of the water system and compliance with the contract with the holders of the water revenue bonds created by Paragraph 12 of Article 14, § 23.3 of the 1921 Constitution.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.


text:
    PEOPLE POWER, Treme Community Improvement Association, St. Bernard Community Center, St. Mary’s Community Center v. SEWERAGE AND WATER BOARD OF NEW ORLEANS.
    No. 8288.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 1, 1977.
    Rehearing Denied Sept. 8, 1977.
    Writ Refused Nov. 4, 1977.
    Guy Huard, New Orleans, for plaintiffs-appellants, People Power, et al.
    John A. Gordon, Vincent'T. LoCoco and Richard M. Olsen, New Orleans, for defendant-appellee.
    Jane Johnson, New Orleans, amicus curiae, for Ass’n of Community Organizations for Reform Now, et als.
    Before SAMUEL, GULOTTA and BOU-TALL, JJ.
   SAMUEL, Judge.

Plaintiffs appeal from a judgment dismissing their suit against the Sewerage and Water Board of New Orleans for a writ of quo warranto and other relief relative to an alleged invalid 28% water rate increase to private consumers adopted by the defendant on April 14, 1976.

With the exception of the fact that there are different plaintiffs in the two suits, in all material respects the issues involved and the relief sought in this matter are identical with those in Civello v. Sewerage and Water Board of New Orleans, La.App., 349 So.2d 404 No. 8287 of our docket. The two cases were consolidated for trial in the district court and for hearing in this court.

For the reasons assigned in the aforesaid Victor W. Civello, Individually and in his capacity as President of the Elysian Fields Civic & Improvement Association and as Representative of the Class of All Paying Customers of the Sewerage and Water Board of New Orleans versus Sewerage and Water Board of New Orleans, No. 8287 of our docket, handed down this day and as yet unreported, the judgment appealed from is affirmed.

AFFIRMED.


text:
    Eddie MATTHEWS v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 8201.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 1, 1977.
    Rehearing Denied Sept. 8, 1977.
    Writ Refused Nov. 4, 1977.
    Jules A. Fontana, Jr., New Orleans, for plaintiff-appellee.
    Floyd F. Greene, New Orleans, for defendant-appellant.
    Before SAMUEL, SCHOTT and BEER, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit against New Orleans Public Service, Inc., seeking to recover benefits for total and permanent disability under the Louisiana Workmen’s Compensation Statutes. Plaintiff’s petition was filed on November 26,1974, and he alleged therein his disability resulted from back injuries sustained in the course of his employment with defendant on May 23, 1967 and on some unknown date in 1971.

Defendant answered, denying plaintiff’s allegations. Before completion of the trial, defendant also filed an exception of the prescription of one year.

After a trial on the merits, judgment was rendered in favor of plaintiff, awarding him compensation benefits for total and permanent disability at the rate of $65 per week for 400 weeks commencing July 24, 1974 and maximum medical benefits payable under the statute. The trial judge did not give written or oral reasons for judgment and the judgment contains no reference to defendant’s exception of prescription.

On May 23, 1968, plaintiff injured his back while repairing gas pipe in an excavation. The accident was reported, and plaintiff was seen by defendant’s physician. Plaintiff was treated and discharged in approximately 24 days as fit to return to regular work. There is some vague evidence regarding a possible reinjury of plaintiff’s back later in 1968 while he was lifting a heavy hammer or maul, and defendant’s records reflect plaintiff was off work from October 11, 1968 through the first week in November, 1968. In 1969 plaintiff missed several days work. In 1970 he missed 28 days work, and in 1971 he missed 21 days. From early March, 1972 until July 24, 1974 plaintiff did not work at all and there is evidence indicating that during this period he had various illnesses, symptoms and complaints which were not job related. His employment was terminated July 31, 1974.

The only evidence of an injury or reinju-ry to plaintiff’s back in 1971 was the testimony of plaintiff himself. He testified that on some unknown day in 1971 (he occasionally stated the year to be 1972), he fell twice, once while performing work at the home of one of his superiors and shortly thereafter when his feet slipped out from under him and he landed on his buttocks. No report of this accident was made to defendant, and plaintiff did not see the company doctor for this accident. In addition, none of plaintiff’s four witnesses, two fellow laborers and two foremen, had any knowledge of a second accident, and one of his fellow workers testified plaintiff worked regularly after the 1968 accident until 1972.

Defendant did not make any payments to plaintiff designated as workmen’s compensation benefits. From 1968 until plaintiff’s termination in July, 1974, defendant paid plaintiff full wages irrespective of the number of absences or the cause thereof. Evidence shows plaintiff was paid full wages while disabled in 1968 and also was paid full wages during the subsequent time, even when he was absent because of jury duty requirements or because of illness not related to his employment.

The prescriptive period in workmen’s compensation is set forth in R.S. 23:1209 as follows:

“In case of personal injury (including death resulting therefrom) all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter or unless within one year after the accident proceedings have been begun as provided in Parts III and IV of this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment. Also, where the injury does not result at the time of, or develop immediately after the accident, the limitation 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.”

Initially, we note the last sentence of the above statute does not apply in this case because the injury in 1968, as well as plaintiff’s version of the injury in 1971, either resulted at the time of, or developed immediately after, the claimed accidents. We also note that since plaintiff’s suit was filed on November 26, 1974, he must rely on some suspension or interruption of the one year prescriptive period in order to maintain an action for either the 1968 or the 1971 accident. Plaintiff argues that payment of his wages in lieu of compensation interrupted prescription.

Our settled jurisprudence is that payment of wages in lieu of compensation interrupts prescription just as compensation payments would do. The test to determine if wages were paid in lieu of compensation is whether the wages are actually earned by the employee. In making that determination, the similarity or degree of difficulty of services performed by the employee before and after the accident are relevant but not conclusive of the issue. If the injured employee actually earns the wages, they are not in lieu of compensation and do not interrupt prescription even if the employee worked in pain.

Prom 1972 until mid 1974 plaintiff did not work, and payment of wages during this period could be deemed as nothing other than wages in lieu of compensation. However, if plaintiff’s claim had prescribed before commencement of payments in 1972 when no work was performed, then such payments would have no legal effect on plaintiff’s claim. Examining first plaintiff’s accident of May 23, 1968, he received wages even though he did not work for 24 days immediately thereafter. Such wages would be in lieu of compensation because he performed no services in return for them. Considering the matter in a light most favorable to plaintiff, and assuming his absence of approximately 3V2 weeks beginning October, 1968 were caused by his 1968 injury, plaintiff then resumed work and performed what the record indicates to be the substantial duties of his employment. Consequently, plaintiff would have had to file suit within one year from his absence in October, 1968 in order to interrupt prescription on the 1968 injury. This was not done, and in our view that claim has prescribed.

After the 3V2 weeks absence commencing in October, 1968, plaintiff worked regularly in substantially the same job until March, 1972. There is testimony he was afforded light duties prior to the time in 1972 when he stopped working completely. However, the record does not indicate whether the light duties would have called for the same pay had they been performed by someone who had not complained of back injuries. Consequently, it is impossible to reach a determination of whether the duties performed by plaintiff, such as painting and pipe repair work in defendant’s shop, were commensurate with his wages. After being placed on light duty, plaintiff complained he could not perform these duties and asked to be transferred back to work in the field. His request was granted, and at this time he concluded he could not perform the work and commenced his 2V2 year period of paid inactivity.

This paid inactivity, being wages in lieu of compensation, might help plaintiff had he proved the occurrence and date of a 1971 or later second accident and injury. But there is insufficient evidence in the record to conclude he did in fact sustain such an accident and injury. The only evidence relating thereto is his own testimony and, to a very limited extent, the testimony of a fellow worker, Mike McKay. Plaintiff’s testimony is hopelessly confused by his inability to relate facts to the time periods in which he says they occurred. On some occasions he stated the later accident occurred some time in 1971, at other times he stated it occurred some time in 1972, and at still other times he was not at all sure when it occurred. He did testify that Mike McKay, a member of his crew at the time, had witnessed the second accident in 1971. However, he also testified that as a result of that second accident he saw and was treated by Dr. Bernard Richmond, who sent him to Dr. Ray J. Haddad, Jr.

Mike McKay testified that in 1972 plaintiff told him he (plaintiff) had reinjured his back, but McKay also stated he had not seen any accident other than the one that occurred in 1968. Dr. Richmond did not testify. Dr. Haddad did testify, stating he had seen plaintiff on two occasions, in November, 1970 and August, 1974 and on neither occasion was he told by plaintiff of any accident, injury or reinjury other than the 1968 accident. Dr. Gernon Brown, Jr., who saw plaintiff once on June 26, 1972 when plaintiff was referred to him by Dr. Richmond, testified the only accident mentioned in his records is the one which occurred in 1968, so that plaintiff made no complaint about an accident in 1971 or 1972. Dr. Irvin Redler saw plaintiff on two occasions, November 28, 1972 and February 12, 1974, at which times he was told by plaintiff only about an accident in 1968 and nothing about a subsequent accident.

Since the 1968 accident clearly prescribed no later than the first week in November of 1969, and since there is no adequate proof of an accident and injury in-1971, this suit filed in November, 1974 cannot interrupt prescription on plaintiff’s claims which had prescribed prior to that filing.

Plaintiff further argues that defendant lulled him into a false sense of security and caused him not to file suit timely because it paid him full wages irrespective of his presence or absence on the job from 1968 through mid 1974. However, to suspend prescription an injured plaintiff must show as a matter of law that the words, actions, or inactions of his employer were designed to and did in fact lull the plaintiff into a false sense of security and inaction. In the present case it is clear the policy of the defendant was to pay full wages irrespective of the reason for an employee’s absence. No statement was ever made to plaintiff, either orally or in writing, relating the payments he received to workmen’s compensation benefits. On the contrary, at one point the company physician told told ■plaintiff he could not see his because more than a year had passed since the day of the 1968 accident. Moreover, defendant’s policy of paying full wages applied to all employees, not just plaintiff. Thus, it cannot be said defendant’s payment of full wages for an extended period of time was designed to lull plaintiff into a false sense of security and inaction.

Plaintiff’s suit having prescribed, the judgment awarding him disability benefits must be annulled and set aside.

For the reasons assigned, the judgment appealed from is annulled and set aside, the exception of prescription is maintained, and plaintiff’s suit is dismissed at his cost in both courts.

ANNULLED AND SET ASIDE; SUIT DISMISSED.

      . LSA-R.S. 23:1021, et seq.

      . Harrell v. Travelers insurance Company, La. App., 255 So.2d 410.

      . O’Quain v. Rockwood Insurance Company, La.App., 335 So.2d 85; Landry v, Ferguson, La.App., 264 So.2d 746; Ledoux v. William T. Burton Company, La.App., 171 So.2d 795.

      . Heymann v. Dixie Leasing Corporation, La. App., 250 So.2d 118.

      . Beil v. Gulf Insurance Company, La.App., 313 So.2d 277.

      . See Williams v. Red Barn Chemicals, Inc., La.App., 188 So.2d 78. Compare Ray v. City of New Orleans, La.App., 284 So.2d 83, where a firefighter was held mislead into thinking sick leave benefits included workmen’s compensation benefits so that the prescription of one year did not apply.


text:
    Love Joy JOHNSON v. Edgar A. ROMAGUERA, Sr., Michael Harold Romaguera, XYZ Insurance Company and State Farm Insurance Company.
    No. 8185.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 1, 1977.
    Rehearing Denied Sept. 8, 1977.

      Wayne H. Scheuermann, New Orleans, for plaintiff-appellant.
    Robert J. Young, Jr., Joseph R. McMahon, Jr., and Edward L. Levert, Jr., New Orleans, for Edgar A. Romaguera, Sr., Michael Harold Romaguera and Sentry Ins. Co., defendants-appellees.
    Porteous, Toledano, Hainkel & Johnson, Ben C. Toledano and C. Gordon Johnson, Jr., New Orleans, Sessions, Fishman, Rosen-son, Snellings & Boisfontaine, Edward P. Lobman and Donald J. Aspelund, New Orleans, for State Farm Mut. Auto. Ins. Co., defendant-appellee.
    Before SAMUEL, BOUTALL and SCHOTT, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit for personal injuries resulting from a two-car collision which occurred at an intersection in the Parish of Jefferson. Named defendants were State Farm Mutual Insurance Company, liability insurer of plaintiff’s husband (the owner and driver of the automobile in which she was a passenger) and the owner, driver and liability insurer of the other vehicle involved in the accident.

Following trial on the merits, there was judgment in favor of plaintiff and against State Farm in the sum of $2,500 for general damages. The demands against all other defendants were dismissed. Plaintiff has appealed, contending the general damage award is inadequate. That contended inadequacy is the only issue before us.

The accident occurred on August 6, 1973. The vehicle in which plaintiff was a passenger was struck on the side where she was seated, throwing her under the dashboard. She was taken by ambulance to the emergency room of Ochsner Foundation Hospital with cuts and bruises on her arms and legs and complaints of pain in every area of her back. She remained in the emergency room for several hours before being discharged.

Plaintiff weighs about 300 pounds and always has had a problem with her back. In January, 1973, seven months before the accident in suit, plaintiff had undergone a complete physical at Ochsner and had been or was then under the care of Dr. Fitzgerald on the Ochsner staff. Dr. Fitzgerald was not called to testify and apparently did not treat plaintiff for injuries sustained in this accident.)

On October 10, 1973, for the first time after the emergency treatment which followed the accident, plaintiff sought treatment for her back from Dr. Gerald Davis, an orthopedic surgeon on the Ochsner staff. He started her on a program of physical therapy flexion exercises. He saw her on only one other occasion, October 24,1973, at which time she complained of no improvement and told him of a weight reduction diet recommended by Dr. Fitzgerald. Dr. Davis advised her to continue the exercises and diet and return in six weeks. He diagnosed her injuries as low back sprain. She did not return to see Dr. Davis.

On September 16, 1974 (approximately eleven months after her last visit to Dr. Davis) she was examined by Dr. Raeburn Llewellyn a neurosurgeon, complaining of back pain and leg discomfort. In relating the history of her back problem, she informed the doctor of the accident of August 6,1973, relating all of her subsequent problems to that accident. The doctor was not informed of her prior complete physical or the prior x-rays which revealed a narrowing of the lumbosacral interspace with anterior spurring at L-4-5 levels in January, 1973.

Dr. Llewellyn recommended a myelogram and hospitalized plaintiff on September 20, 1974. X-rays at that time were negative except for a narrowing of the lumbar disc L-5 which was satisfactory from a diagnostic standpoint. However, the myelogram suggested presence of the L-5 disc bulging and an operation was performed which consisted of boring the two lowermost inter-spaces of plaintiff’s back. The operation revealed an old healed and no longer symptomatic disc at L-5, S-l interspace and a newer disc prablem at L-4, L-5 interspace which was symptomatic. The doctor concluded plaintiff experienced maximum response from the operation which repaired the L-&, L-5 disc but doubted she would ever be able to be completely active in her home and with a full outside schedule. He was of the opinion that, based upon his acceptance of plaintiff’s history from the date of the accident, as given to him by plaintiff, and no subsequent injuries, the accident of August 6, could have been the cause of here newer disc problem at L-4, L-5.

Upon cross examination the doctor testified he had no knowledge of plaintiff’s treatment at Ochsner, of any prior hospitalization, or of her checkup with x-rays taken on that occasion, seven months before the accident. He acknowledged a proper and correct history was essential to a determination of the cause of the newer disc problem at L-4, L-5. Plaintiff did not return to Dr. Llewellyn after the April, 1975 visit, although she was still complaining of continued back problems at the time of trial, January 16, 1976.

The basic question presented for our determination by this appeal is whether plaintiff has carried her burden of proving her newer and symptomatic disc problem at L-4, L-5 interspace was caused by the accident in suit. If she has carried that burden, she is entitled to an increase in the amount awarded her. If she did not carry that burden, we cannot increase the award in the absence of a finding of manifest error. Here, the answer to that question is largely dependent upon credibility, particularly the credibility of the plaintiff herself because Dr. Llewellyn’s opinion as to the cause of the injury being discussed was based on the incorrect or incomplete history given to him by the plaintiff.

In its Reasons for Judgment the trial court stated he was concerned with inconsistencies in plaintiff’s testimony and the fact that she was stiff and guarded in movements involving her back when she felt she was being observed, but was quite mobile in unguarded moments. In considering Dr. Llewellyn’s testimony the judge concluded it was based upon inaccurate and incomplete histories and suggested information given to that doctor by the plaintiff. Thus, the court concluded plaintiff had not maintained the necessary burden of proof concerning the connexity of the accident to the disc operation.

Where the trial judge has seen, heard and observed witnesses and the many other things which transpire in a courtroom and which are not susceptible of being taken down and transcribed by the reporter, his conclusions on question of fact will not be disturbed unless manifestly erroneous. Thus, the findings of fact of the trial judge involving credibility of witnesses are entitled to great weight.

Further we note that in cases involving circumstances such as one presented here, the court must proceed to evaluate the testimony of all of the witnesses both lay and medical and, after making such an evaluation, may accept or reject the opinion expressed by any medical expert. In short, the trial judge is obliged to evaluate the testimony of a medical expert according to the same rules applicable to any other witness.

In Canter v. Koehrlng Company, the Supreme Court emphasized the broad discretion given to the trier of fact, especially in areas of credibility of witnesses. Here the trial judge simply did not believe the pertinent portions of plaintiff’s testimony. Accordingly, he was of the opinion the evidence failed to establish that the bulging disc problem of which she now complains was related to this accident. There is nothing in the record indicating he committed manifest error in arriving at this conclusion.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . At one point she testified her salary was $200 per week, whereas later testimony established it was $100 and raised to $200 at a time she had claimed she was not working at all.

      . The trial judge particularly commented that on one occasion just before leaving the courtroom she leaned over and loosened her husband’s pants from his boot in spite of her claims of pain and stiffness on bending up to and including the time of trial.

        .Olivier v. Abunza, 226 La. 456, 76 So.2d 528; Orlando v. Polito, 228 La. 846, 84 So.2d 433.

        . Kendrick v. Kendrick, 236 La. 34, 106 So.2d 707; Talton v. Todd, 233 La. 146, 96 So.2d 327; Huber v. Ed. Taussig, Inc., 228 La. 1018, 84 So.2d 806; Bertrand v. Aetna Casualty & Surety Company, La.App., 306 So.2d 343.

        . Jennings v. Halliburton Co., La.App., 346 So.2d 268; Matirne v. Wilson, La.App., 336 So.2d 960; Touchet v. Fidelity & Casualty Co. of New York, La.App., 264 So.2d 752; Frame v. Majors, La.App., 224 So.2d 65.

      .La., 283 So.2d 716.


text:
    Robert CARTER v. Dave L. POINDEXTER, Walter G. Allee, Jr., Causey E. Gram, Jr., and John McKee and their Insurer, the Continental Casualty Company.
    No. 8281.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 1, 1977.
    Rehearing Denied Sept. 8, 1977.

      Gertler & Gertler, M. H. Gertler, New Orleans, for plaintiff-appellant.
    Deutsch, Kerrigan & Stiles, Robert E. Kerrigan, Jr., New Orleans, for defendants-appellees.
    Chaffe, McCall, Phillips, Toler & Sarpy, V. Gerald Dean, New Orleans, for James Vladyka and Eiler Lichenstein, defendants-appellees.
    Before SAMUEL, BOUTALL and SCHOTT, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit against Dave L. Poindexter, Walter G. Alee, Jr., Causey E. Gram, Jr., and John McKee, as executive officers of his employer, Amstar Corporation, seeking damages for injuries sustained when he fell at Amstar’s sugar refinery while attempting to free his feet from a sticky substance which had spilled on the floor. He later added two other defendants, Eiler T. Lichenstein and James Vlady-ka, alleging them to be executive officers also.

Defendants answered, and those defendants named in plaintiff’s original petition filed a third party demand against Continental Casualty Company as their liability insurer. Amstar, plaintiff’s employer, intervened to recover workmen’s compensation benefits and medical expenses it paid on plaintiffs behalf. Continental later made an appearance by amended answer and assumed the defense of the third party plaintiffs-defendants. The defendants added by amended petition are not insured by Continental.

After a trial on the merits, there was judgment dismissing plaintiff’s suit against all defendants. Plaintiff has appealed.

Plaintiff was injured in that portion of Amstar’s sugar refinery known as the pan-house. He occupied the position of pan-house operator, and was generally in charge of supervising and maintaining the production processes designed to take place in the panhouse.

The panhouse is a ten-story building in which raw sugar is converted in several stages to granulated sugar. On the seventh floor of the building the raw sugar is crys-talized in large pans, and the material is then dropped by gravity from these pans into mixers on the sixth floor, where centrifugal force is used to separate syrup from sugar. As the granulation process continues the material then drops to each of the floors between the fifth and the first. The granulated sugar is placed in holding bins on the first floor.

Plaintiff’s position required him to oversee the operation of the entire process in the panhouse, during the course of which he traveled from floor to floor. He operated machinery, monitored gauges, and did whatever was necessary to continue the process.

The night before plaintiff was injured a major spill of raw material occurred on the fourth floor of the panhouse. This spill was caused by painting contractors who had worked in the refinery the previous day and used plywood to cover the openings in the large pipes through which the crystalized sugar is dropped from the seventh to the sixth floor. At this point in the process, the raw sugar only has been crystalized and the syrupy portion of the mixture has not been separated. This mixture, sometimes called filmass, is a very thick and sticky molasses-like substance.

The blocking of the aperture in the pipe with plywood by the painters was not visible to the workers in the panhouse in the absence of an inspection of the process area. Although it was plaintiff’s responsibility to determine when the filmass safely could be dropped, he did not make such an inspection. Consequently, after he obtained normal readings from various gauges, he ordered the filmass dropped from the seventh to the sixth floor. When the filmass dropped, the plywood prevented its normal passage to the sixth floor and it flowed over the sixth floor machinery and dropped, unobstructed by flooring or other structure, to the fourth floor where it resulted in an extensive spill.

Filmass is not brittle and it cannot be chipped away. Due to its consistency, it cannot be shoveled. Consequently, the only accepted method of cleaning a filmass spill is to wash it with hot water and flush the residue into drains. This process was estimated to take from two to three weeks.

Plaintiff returned to work in the pan-house about 24 hours after the spill. Gauges indicated it was necessary to add lime, an anti-bacteria agent, to the mixture and to do this he attempted to walk to a lime mixer located on the fourth floor. He had not added lime on the day of the spill because the floor was too wet and sticky for safe walking. However, the next night plaintiff thought the filmass had hardened enough so that he could walk on it to get to the lime mixture. As he proceeded in that direction it became obvious to him the fil-mass was still too soft for walking. He attempted to turn and retrace his steps, but he became stuck in the mass, causing him to fall and injure his right hip.

The trial judge’s Reasons for Judgment show he found the injury in suit was caused by plaintiff’s own negligence and that plaintiff had assumed a known risk when he walked on the dangerous spill to reach a lime mixer. There is ample evidence in the record to sustain this finding. The lime mixture on the fourth floor is part of what the witnesses called “the automatic system.” There was another spot in the production process, on the third floor, where lime could be added manually when the automatic system was not functioning properly. When the automatic system was in operation, lime was added to the process approximately three times every eight hours; when the automatic system malfunctioned, as it apparently frequently did, lime was added manually on the third floor at intervals which ranged from one hour to one hour and a half. Although denied by plaintiff, other evidence shows lime was maintained on the third floor continuously for use in the event the automatic system malfunctioned. Plaintiff admitted lime was stored on the premises and he could have sent the utility man for some, but he did not do so.

In addition, plaintiff testified he knew he would have to walk in the spill in order to put lime in the system on the fourth floor. He also stated that when confronted with a situation which he believed to be unsafe he should discuss the matter with his foreman before acting. But he admitted no such discussion ever was had relative to the accident in suit. Such a request appears to have been unnecessary because, as we understand the record, he had the authority to make that decision on his own. In short, plaintiff had a perfectly acceptable alternative and safe method of adding lime to the granulation process by going to the third floor, but instead he voluntarily chose to proceed across the dangerous spill of fil-mass to place the lime in the system at the fourth floor lime mixer. He was not ordered to take the dangerous alternative and there is no evidence to indicate the safer alternative was not available to him in any way.

Plaintiff relies on the reasoning and conclusion of this court in Chaney v. Brupbacher, in which we held that a workman’s superior cannot simply create or permit a danger, send a workman into that danger with a warning, and escape liability on the basis of the workman’s contributory negligence by merely going into the dangerous situation. This court stated a workman must not be placed in the position of either telling his superior how to operate the job or terminating his employment. In the present case, plaintiff was not faced with such a “perform or quit” alternative.

Plaintiff began his employment at Ams-tar Corporation on September 19, 1947 and worked continuously to the date of his accident. A substantial portion of that time was spent in the panhouse, where he worked as a panhouse cleaner, a utility pan-house operator, and finally a full-time pan-house operator. During the course of his years of experience, he became thoroughly conversant- with the operations of the pan-house and fully knew the availability of the third floor lime inlet. By choosing to walk over the spilled filmass instead of descending one floor to place lime in the system at the alternate site, plaintiff knowingly assumed an obvious risk and failed to exercise that degree of care for his own safety expected of a normally prudent person.

There are admittedly factual contradictions between the evidence presented by plaintiff and that presented by defendants. Some of these conflicts resolve themselves to questions of credibility, which is peculiarly within the province of the trial judge. It suffices to say there is nothing in the record to indicate the trial judge violated the broad discretion afforded him in making his factual findings.

In view of the negligence and voluntary assumption of a known risk on plaintiff’s part, a discussion of defendants’ alleged negligence is unnecessary. The trial judge was correct in his holding, and his judgment must be affirmed.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . Consequently, the original defendants dismissed their third party petition against Continental.

      . La.App., 242 So.2d 627.

      . See also O’Keefe v. Warner, La.App., 288 So.2d 911.

      . See Stansbury v. Mayor and Councilmen of Morgan City, 228 La. 880, 84 So.2d 445.

      . See Canter v. Koehring Company, La., 283 So.2d 716.


text:
    Sloan M. ORR and McAndrew Thomas v. NEW ORLEANS PUBLIC SERVICE INCORPORATED.
    No. 8296.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 1, 1977.
    Rehearing Denied Sept. 8, 1977.

      Gertler & Gertler, M. H. Gertler, New Orleans, for plaintiffs-appellees.
    James Maher, III, New Orleans, for defendant-appellant.
    Before SAMUEL, BOUTALL and SCHOTT, JJ.
   SAMUEL, Judge.

Plaintiffs filed this suit for injuries received when they were fare-paying passengers on a defendant public service bus. At the request of his attorney the suit of plaintiff Thomas was dismissed. Following trial on the merits, there was judgment in favor of plaintiff Orr in the sum of $1,800. Defendant has appealed.

The only evidence relative to the facts of the incident in suit is the testimony of plaintiff Orr and the bus driver. Orr testified: He and Thomas, both seamen temporarily in port, were seated about two-thirds of the way back of the bus. Four apparently drunk black youths boarded the bus speaking loudly and using profanity, one of whom was calling attention to the fact that he had his trousers “unzipped”. The youths took seats directly behind Orr and Thomas and within the time the bus traveled one block or less they tried to pick the seamen’s pockets. One of the youths moved to the seat in front of Orr and demanded money. Because the seamen did not resist, the youths became more belligerent. The two seamen then moved to the front of the bus, immediately followed by the four black youths and three or four other blacks, all of whom started to punch and kick the seamen. Orr asked the driver for assistance. The driver then stopped the bus about a block after the fighting began (which was two blocks from the time the group moved to the front), got up and asked the blacks to stop. Matters became so violent at this time that Thomas threw his money (about $70) out of the door, the black youths rushed out, grabbed the money and ran off.

According to Orr, the driver did not physically intervene nor did he see him struck by a belt as the driver testified had happened. He further stated the driver made a second stop about two blocks after the first, because he was unable to find a phone at the first stop. We note that Orr did not testify the driver actually saw the trouble prior to the time the two seamen moved to the front of the bus. However, he did testify he thought the driver could have seen what was occurring to the rear of the bus in his rear view mirror.

The bus driver testified: Although the black youths were loud and profane when they got on the bus, they did not appear to be hostile and gave no indication of violence. Sometime thereafter he heard name calling in the back of the bus, and he yelled at them. About half a block later the two white sailors came to the front of the bus, followed by the blacks. He could not stop the bus immediately because of the traffic, but he brought it to a stop about one-half to one block away, and about two minutes after he was aware of the problem. He then got out of his seat and tried to get between the whites and the blacks, telling them to quiet down or they would be in trouble. He was struck by a belt swung by one of the blacks. He then pushed past the group, got out of the bus and called his dispatcher from a phone on the corner, and the dispatcher in turn called the police. He stated the whole incident took place in only two minutes and that he brought the bus to a stop as soon as he was able to do so because of the traffic, that he attempted to intervene on the part of the sailors, and that he immediately called for help after the bus stopped.

The applicable law is that while it is not in the position of an insurer, a public carrier of passengers for hire is required to exercise the highest degree of vigilance, care and precaution for the safety of those it undertakes to transport and is liable for the slightest negligence. The mere showing of injury of a fare-paying passenger and his failure to reach his destination safely establishes a prima facie case of negligence. Such a carrier can be liable for an assault by one passenger on another where there is reason for the employee to anticipate the assault and a failure on his part to take such action as may be practicable under the circumstances to prevent the assault from being committed.

We are aware of the rule that “the judgment of the trial court on a question of fact will not be reversed by an appellate court unless it is manifestly erroneous; this rule, however, does not deprive an appellate court of its jurisdiction upon both the law and the facts.” (emphasis ours).

We are also aware of the holding in Canter v. Koehring Company that where there is evidence before the trial court which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for that court’s finding, the appellate court should not disturb this factual finding in the the absence of manifest error.

Here we cannot say the trial court’s acceptance of Orr’s testimony and apparent rejection of the bus driver’s testimony was erroneous. However, we do hold that even accepting Orr’s testimony, we must reverse.

From Orr’s testimony it is clear the four black youths entered the bus only approximately six to eight blocks prior to the time the two seamen moved to the front of the bus, were on the bus for only a total of about 8 minutes and the actual violence itself lasted only a very brief part of that time. Nor does Orr’s testimony establish that the conduct of the four blacks on entering the bus was sufficient to justify or require that the driver keep them off the bus, especially in view of defendant’s obligation to afford transportation to the pub-lie. That testimony includes a statement that Orr did not see the driver struck by a belt or otherwise; but it appears quite possible that Orr saw very little of the driver while he was actively engaged in defending himself and, in any event, we have specifically held this public carrier does not have the obligation of having its bus driver physically intervene in an altercation.

Thus, even accepting all of the facts and circumstances established by Orr’s testimony, we find no liability on the part of the defendant.

We distinguish this case from our recent decision in Campo v. George. In Campo the driver was aware of the possibility of trouble from the time, or within one block after a gang of 17 or 20 youths entered the bus and began to terrorize the white passengers, yet he continued on his route for eight or nine miles, and failed to seek help, even at a time when his bus stopped on a corner where a police station was only 20 feet away.

For the reasons assigned, the judgment appealed from is reversed, and it is now ordered that there be judgment in favor of the defendant, New Orleans Public Service, Inc., and against the plaintiff, Sloan M. Orr, dismissing the latter’s demands at his cost in both courts.

REVERSED.

SCHOTT, J., concurs in the result.

      . The court was advised Thomas might be dead and that his heirs had not been substituted as parties plaintiff.

      . Gross v. Teche Lines, 207 La. 354, 21 So.2d 378; Campo v. George, La.App., 347 So.2d 324, handed down June 7, 1977; Vaughn v. New Orleans Public Service, Inc., La.App., 314 So.2d 545.

      . Wise v. Prescott, 244 La. 157, 151 So.2d 356; Gross v. Teche Lines, supra, note 2; Higgins v. New Orleans Public Service, Inc., La.App., 347 So.2d 944, handed down June 30, 1977; Aime v. Hebert, La.App., 282 So.2d 566; Fontenot v. Fidelity General Insurance Company, La.App., 185 So.2d 896.

      . Skipper v. New Orleans Public Serv., Inc., La.App., 338 So.2d 771; Carter v. New Orleans Public Service, Inc., La.App., 335 So.2d 105; Patin v. New Orleans Union Passenger Terminal, La.App., 210 So.2d 408; Alphonse v. New Orleans Public Service, Inc., La.App., 138 So.2d 610; Bynum v. Wiggins, La.App., 107 So.2d 476.

      . State v. City of New Orleans, 240 La. 820, 125 So.2d 375.

      . La., 283 So.2d 716.

      . Higgins v. New Orleans Public Service, Inc., supra, note 3.

      . Supra, note 2.


text:
    Don M. ZEMO v. R. A. LOUVIERE, Sr., et al.
    No. 8305.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 1, 1977.
    Rehearing Denied Sept. 8, 1977.
    Writ Refused Oct. 14, 1977.

      Mmahat, Gagliano, Duffy & Giordano, Lucas J. Giordano, Metairie, for plaintiff-appellee.
    Montgomery, Barnett, Brown & Read, Wood Brown, III, New Orleans, for defendants-appellants.
    Before SAMUEL, BOUTALL and SCHOTT, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit against R. A. Lou-viere, Sr. and Louviere’s liability insurer, United States Fidelity & Guaranty Company, to recover damages for personal injuries and medical expenses resulting from an in-tersectional collision between a pickup truck driven by plaintiff and a large tractor-trailer belonging to and driven by the individual defendant.

After trial on the merits, judgment was rendered in favor of plaintiff and against the substituted defendants and the defendant insurer, in solido, in the sum of $33,981.25. Defendants have appealed. We reverse.

The trial court’s findings of fact have been accepted as accurate by both parties. As set forth in his written reasons for judgment, they are:

“This suit is the result of an accident which occurred on October 15, 1965, in Jefferson Parish, at the intersection of Belle Drive and Clearlake Drive in Pontchatrain Shores Subdivision while it was still under development.
Both parties were involved with this development. Plaintiff was a mechanic for Donald Lambert Contractors, Inc., contracted to install streets, while the defendant cleaned and leveled certain lots in the area.
The accident occurred at approximately 4:30 p. m. at an uncontrolled intersection where the streets crossed one another almost perpendicularly. Plaintiff, Don Manuel Zemo, approached from the right proceeding in a southerly direction on Clearlake Drive, to deliver paychecks to some of Lambert’s employees. Defendant, Robert A. Louviere, was proceeding in a large tractor trailer truck at approximately 15 to 25 miles per hour in a westerly direction on Belle Drive, to pick up his bulldozer.
Direct testimony concerning the accident was provided by Mr. Louviere, now deceased, and Mr. J. M. Hensarling. Plaintiff developed retrograde amnesia and thus did not remember how the accident occurred. Further, the testimony and report of the investigating officer, Lt. Joseph Zambo, was of little assistance.
Prior to the accident, the defendant testified that he was headed westerly at 15 to 20 mph operating a tractor and lowboy trailer, the latter being heavier than the tractor and without its brakes in operational condition. As he reached a point about 50 feet from the intersection, he looked to his right for about 200 feet, possibly more, up Clearlake Drive and saw nothing coming; then he looked to his left, all the time proceeding ahead at this rate of speed. He turned back to the front and saw the red flash of plaintiff’s truck in front of him, whereupon the collision occurred, all within two or three seconds.
Mr. Hensarling did not see the actual collision but testified that he saw plaintiff going about 40 mph past a house which he had under construction about 300 yards from the lake side of the collision site. In support of a speeding claim, defendant asserts the proposition that plaintiff was or had reason to be in a hurry to deliver paychecks to a Lambert crew further down Clearlake Drive, who were to leave work around the time of the accident.
While the plaintiff cannot remember the facts concerning the actual collision, he testified that upon viewing the accident site, there were no obstructions to his vision at the intersection.
It is the position of counsel for defendant that conceding the negligence of Mr. Louviere, the plaintiff’s contributory negligence through his excessive speed and failure to see defendant’s approach bars the latter’s recovery.
A review of the damage to the two vehicles involved reveals that defendant’s truck received relatively slight damage across its front compared with that sustained by plaintiff’s truck on the driver side front fender and door position.”

Appellants have limited their appeal to the sole issue of contributory negligence on the part of the plaintiff-driver. The trial court’s conclusion as to contributory negligence was that, based on the presumption “plaintiff exercised due care and saw what was in his range of vision unless it is rebutted,” the defendants had failed to prove by a preponderance of the evidence their affirmative defense that the plaintiff had lost or forfeited his directional right of way because of his negligence.

In this case, in which the accident occurred in an uncontrolled intersection, the plaintiff vehicle was on the right and had the statutory directional right of way. As the accident occurred prior to amendment by Act 422 of 1972, the applicable law is LSA-R.S. 32:121 B, as amended by Act 310 of 1962, which reads:

“B. When two vehicles enter an intersection from different highways at approximately the same time, the driver of the vehicle on the left, shall yield the right of way to the vehicle on the right.” LSA-R.S. 32:121 B.

Our courts have held the statutory provision quoted above (or a similar city ordinance) neither converts one of two streets of equal dignity into a superior one with an unqualified right of way, nor provides mechanical rules for determining liability after an accident merely because of the direction in which the vehicles happened to be traveling at the time of the collision. A greater degree of care is imposed upon a driver with only a directional right of way than one with an unqualified right of way. Every driver who approaches an uncontrolled intersection with a street of equal dignity has some degree of duty, depending upon the circumstances, to proceed cautiously and determine before entering the intersection whether he can safely cross. A determination of fault in such a collision is made by examining the conduct of the motorists under all the circumstances and facts of each case, including consideration of the directional right of way.

Because we are of the opinion this case can and must be decided on unrelated grounds, we do not reach a consideration of plaintiff’s contention relative to the argued fact that, in the absence of proof to the contrary, a driver is presumed to have exercised due care under the circumstances. Nor do we consider whether that rule, if viable, properly should be applied in cases where the inability to testify is due to retrograde amnesia, as here, rather than death, as in the two cases cited by plaintiff. It suffices to say defendants bear the burden of proving their plea of contributory negligence, an affirmative defense, and whether or not that burden has been carried is to be determined by all of the evidence contained in the record, regardless of which party introduced the evidence. Nor do we find it necessary to consider defendants’ argument relative to the alleged excessive speed of the plaintiff vehicle as it approached and entered the intersection (as mathematically computed from the distances and apparent speed indicated in the testimony of the defendant-driver and J. M. Hensarling).

From our reading of the record we are satisfied both drivers had an unobstructed view as they approached and entered the intersection. That conclusion is established by evidence received from the investigating deputy sheriff. Because the accident had occurred several years prior to the time he testified, the deputy had no independent recollection of his investigation. However, the trial judge ruled that a certified copy of the report of the accident, made by the deputy, was admissible in evidence, but only insofar as it referred to matters involving the deputy’s own observations, i. e., factual matters he observed when he arrived at the scene of the accident. In a portion of that report labeled “REASON FOR NOT SEEING DANGER” the deputy had checked spaces indicating the vision of neither driver was blocked. He testified he had made this observation at the scene of the accident shortly after its occurrence. The deputy was an independent witness engaged in his official business in which he had some six years experience. In order to complete his report he was required to determine whether the intersection was obstructed or unobstructed in the views available to both drivers. Noting the trial court came to no conclusion relative to the views of the drivers, we consider this testimony, based on the report, as reliable and accept the same.

Assuming an absence of excessive speed on the part of the plaintiff vehicle (as said above, excessive speed by itself would cause plaintiff to lose any right of way he may have enjoyed), the record establishes with sufficient certainty that if the plaintiff-driver had proceeded with sufficient caution and observation, he could and should have seen that the approaching defendant tractor-trailer prevented a safe crossing of the intersection and he could have avoided the collision. Failure to proceed with .such caution and failure to see what he could and should have seen constitutes contributory negligence which bars a recovery by him.

For the reasons assigned, it is ordered that the judgment appealed from be reversed and that there be judgment in favor of the defendants, Mrs. Gertie M. G. Louvi-ere, Robert A. Louviere, Jr., Eldon Joseph Louviere, Mark James Louviere, and United States Fidelity and Guaranty Company, and against the plaintiff, Don M. Zemo, dismissing said plaintiff’s demands at his cost in both courts.

REVERSED.

      . Mr. Louviere died subsequent to trial and prior to judgment in the trial court. His widow and heirs were substituted for him as parties defendants.

      . Smith v. Borchers, 243 La. 746, 146 So.2d 793; Miller v. Berthelotte, La.App., 346 So.2d 856; Toomer v. Kararick, La.App., 346 So.2d 858; Soniat v. State Farm Mut. Auto. Ins. Co., La.App., 340 So.2d 1097; Smith v. Trinity Universal Insurance Company, La.App., 270 So.2d 637; Neal v. Davenport, La.App., 270 So.2d 617; Gutelius v. Phoenix Insurance Company, La.App., 266 So.2d 717.

      . Begnaud v. Texas & New Orleans Railroad Company, La.App., 136 So.2d 123; Kern v. Knight, La.App., 127 So. 133.

      . Ginlee v. Helg, 251 La. 261, 203 So.2d 714; Thibodeaux v. Fireman’s Fund Insurance Company, La.App., 325 So.2d 318; Mclnnis v. Fireman’s Fund Insurance Company, La., 322 So.2d 155; Johnson v. State Farm Fire & Casualty Company, La.App., 303 So.2d 779; DeWese v. Hartford Accident & Indemnity Company, La. App., 295 So.2d 574.

      . Bryant v. Johnson, La.App., 140 So.2d 758.

      . Excessive speed under the circumstances would result in loss of any right of way plaintiff may have enjoyed. Bailey v. Hodge, La.App., 284 So.2d 799; Neal v. Davenport, supra, note 2; Johnson v. Employers’ Liability Assurance Corp., La.App., 234 So.2d 200; Launey v. Smith, La.App., 192 So.2d 154.

      . See note 6.

      . Smith v. Borchers, supra, note 2; Miller v. Berthelotte, supra, note 2; Soniat v. State Farm Mut. Auto. Ins. Co. supra, note 2; Welch v. Mayhall, La.App., 325 So.2d 741; Chaisson v. J. Ray McDermott & Co., La.App., 324 So.2d 844; Mullins v. Travelers Insurance Co., La. App., 324 So.2d 613; Ortego v. State Farm Mut. Automobile Ins. Co., La.App., 295 So.2d 593.


author: REDMANN, Judge. GULOTTA, Judge, BEER, Judge, BEER, Judge,

text:
    Anne Walker CHAMBERS v. Wayne P. PARKER, Registrar of the Bureau of Vital Statistics of the City of New Orleans.
    No. 8229.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 1, 1977.
    Dissenting Opinion On Denial of Rehearing Sept. 8, 1977.
    Writ Refused Nov. 4, 1977.

      Charles J. Yeager, Alexandria, for Anne Walker Chambers.
    H. M. Westholz, Jr., New Orleans, for Wayne P. Parker.
    Franklin V. Endom, Jr. (Polack, Rosenberg, Rittenberg & Endom, New Orleans), for Adoptive Couples Together, Inc. and New Orleans Right to Life Association.
    C. Ellis Henican (Henican, James & Cleveland, New Orleans), for Associated Catholic Charities of New Orleans, Inc.
    Robert R. Rainold, New Orleans, for Children’s Bureau.
    Beryle E. Wolfson, New Orleans, for Volunteers of America.
    Charles I. Denechaud, Jr., New Orleans, for Charity Social Services of New Orleans d/b/a St. Vincent’s Infant and Maternity Home, amici curiae.
    Before REDMANN, GULOTTA and BEER, JJ.
   REDMANN, Judge.

This appeal purported to present the constitutional issue, with its awesome social implications, of whether the state by sealing original birth records may impede an adopted person’s desire to learn the identity of its biological parents. We find that Louisiana has not attempted to do so. We affirm the trial court’s judgment allowing the adopted person access to her original birth certificate and the certified copy of the decree of adoption.

Plaintiff was born in 1951 and adopted in 1954. At those times records of adoptions taking place within Louisiana were governed by La.R.S. 40:209 A (1950). That statute, a revision of La.Acts 1948 No. 228 § 16, required the clerk of court to send to the division of public health statistics a “certificate of the decree” of adoption, and required the division to issue a new birth certificate. The statute added:

The Division of Public Health Statistics shall seal and file the original certificate of birth with the certificate of the decree. This sealed package shall be opened only on the order of a competent court either upon its own motion, or upon the demand of the adopted child or the adoptive parent, or the Department [of public welfare]. .

Thus the statute does not literally purport to seal the original birth certificate or the certificate of the decree from the adopted child or from the adoptive parent.

Nor does the statute by its history suggest that the sealing was to be effective against the adopted person. One precursor, Acts 1938 No. 428 § 10, provided merely:

. such sealed package shall only be opened upon the demand of the said adopted child or his real or adoptive parents, the State Department of Public Welfare through the Commissioner of Public Welfare, or by order of a Court of record.

Under the 1938 law it was not even necessary for an adopted person to obtain a court order; therefore no court could exercise discretion or in any way impede the adop-tee’s causing the opening of the records. Apparently the original intent was only to deny to curiosity-seekers free access to the original birth records of adopted persons. The adoptee or a biological or adoptive parent had unrestricted access to the “sealed” package.

Acts 1942 No. 154 § 10 removed the biological parents from those who could oblige the record-guardian to open “on demand” and for the first time required, in addition to the demand, a court order for the opening:

. such sealed package shall only be opened upon the demand of said adopted child or the adoptive parents, the State Department of Public Welfare through its Director of Public Welfare and then only, by order of a court of record.

But the statute gives no hint that the court would have any discretion to grant or refuse the order: presumably its only function was to verify that the party claiming to be a person entitled to demand the opening was such a person (and perhaps to curb curiosity-seekers in the department of welfare).

Acts 1948 No. 228 § 16 changed the language, but not the substance, to that of R.S. 40:209 A (1950). (Current law, R.S. 40:81, is identical except that “state registrar” replaces “department”.)

(A similar but inapplicable provision is R.S. 40:79. That provision is little more than a renumbering of R.S. 40:206 (1950), which expressly referred to then R.S. 40:205, governing a similar procedure for obtaining birth certificates for children born within but adopted without Louisiana.)

We also note that Louisiana reserves to the adoptee the right to inherit from his blood parents, La.C.C. 214 (see also, e. g., R.S. 9:402). The legislative intent to preserve inheritance rights to the adoptee excludes, as inconsistent, any interpretation which would prevent the adoptee from learning the identity of those from whom he is to inherit.

As a court, we do not consider or even recite the compelling arguments that might prompt the Legislature to deny or to insure to an adopted person access to his own original birth record. The genuine concerns of defendant and amici curiae must be presented to the Legislature, and weighed against the concerns of adoptees, for such solution as its constitutional power may permit. (Presumably Acts 1977 No. 659 is a response to some of those concerns.)

We find no basis upon which to deny plaintiff adoptee’s demand to open her original birth certificate and the certificate of the decree of her adoption in defendant’s possession. (R.S. 9:437 protects the confidentiality of other aspects of court adoption proceedings and it is not here at issue.) R.S. 40:209 A (1950), now R.S. 40:81 (prior to its amendment by Acts 1977 No. 659), entitles her to the relief demanded.

Affirmed.

GULOTTA, J., assigns additional reasons.

BEER, J., concurs.

GULOTTA, Judge,

concurring.

I subscribe to the opinion of Redmann, J. I would add, however, that although I am sensitive to the fact that our decision in the instant case might very well result in some expressions of reticence on the part of a natural mother who intends to surrender her child for adoption, I am mindful that we are confronted with a statutory construction question which compels the result reached by us.

If the result desired is not to permit an adopted child to see the birth records, then the legislature, in clear language, should so legislate. If the legislature so ordains, however, it must come to grips with the fact that a substantial obstacle is being placed in the path of an adopted child who seeks to support his inheritance claim (or indeed seeks to find out if he is entitled to inherit) from a natural parent. At any rate, judicial restraint requires recognition of the problem as legislative. Accordingly, I concur with the result reached by the majority.

BEER, Judge,

concurring.

I concur for the reasons stated by Gulot-ta, J.

BEER, Judge,

dissenting from the refusal to grant a rehearing.

I voted to grant the rehearing and, had the reheating been granted, would have changed my concurrence to a dissent. On reflection, I am of the view that LSA-R.S. 40:209 A requires a “competent court” to fulfill more important and discretionary functions than the simple verification of the identity and basis of demand of the party seeking to examine sealed adoption and birth records. I believe a competent court’s duty extends considerably beyond that point and that the statute intended to require that the court make a judicial determination of whether or not the records should be opened based upon consideration of all of the evidence properly introduced by all of the various parties to the litigation — exactly as it would operate in an ordinary adversary proceeding.

In this particular case, it is apparent from the record that the trial judge went no further than to make a determination that the plaintiff “has the mandatory right to bring suit.” It is, therefore, obvious that the trial court’s consideration of the matter went no further than the determination that plaintiff was, indeed, seeking information regarding her own birth and was, on that basis, then and there entitled to the information, all other considerations to the contrary notwithstanding.

It is my present view that the court should not have ordered the records produced without having first determined, as a competent court, that a compelling reason existed for same. Certainly, such determination is within the ambit of authority conferred by the statute. But here, it is clear that the district court stopped short of such determination.

It looks as though Act 659 of 1977, which will become effective this month, will require district courts to make the sort of determination just noted. I believe that Act 659 of 1977 is properly cited to us as a clear signal of legislative intent existent when the legislature passed that act which became LSA-R.S. 40:209 A.

Accordingly, I respectfully dissent from the majority’s refusal to grant a rehearing and, also, take this opportunity to respectfully observe that if the rehearing had been granted, I would have dissented from the majority opinion for the reasons stated above.

      . See Comment, Discovery Rights of the Adoptee Privacy Rights of the Natural Parent: A Constitutional Dilemma, 1975, 4 San Fernando V. L.Rev. 65; Note, The Adult Adoptee’s Constitutional Right to Know His Origins, 1975, 48 So.Cal.L.Rev. 1196; Sealed Records in Adoptions: The Need for Legislative Reform, 1975, 21 Catholic Lawyer 211; The Adoptee’s Right to Know his Natural Heritage, 1973, 19 New York L.Forum 137.

      . Present law, substantially identical, is R.S. 40:81.

      . Compare Uniform Vital Statistics Act § 24 (1920), “Such sealed documents may be opened by the state registrar only upon the demand of the adopted person if of legal age or by an order of court.”

      . Acts 1977 No. 659, not yet effective, amends R.S. 40:81 to read, on this point, “This sealed package may be opened only on the order of a competent court either upon its own motion, or • upon the demand of the adopted child or the adoptive parent, or the state registrar, for compelling reasons and only to the extent necessary to satisfy such compelling necessity.”

      . E. g., a pregnant woman who would otherwise give up her child for adoption may, if her identity cannot remain hidden even from the child, elect instead to abort the child. (This was not a concern of the 1950 legislature, however, because abortion was then a crime rather than a convenience.)

      . Although, as pointed out in the majority opinion, legislation has been passed in the 1977 Regular Legislative Session (Act 659 of 1977) which requires “compelling reasons” for an adopted child to obtain access to the original birth records, the 1977 Act does not address itself to the problem raised in the concurring opinion.


author: BOUTALL, Judge.

text:
    Sessel D. CAIN v. DONALD G. LAMBERT CONTRACTORS, INC.
    No. 8315.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 1, 1977.
    Rehearing Denied Sept. 8, 1977.
    Writ Refused Nov. 4, 1977.

      Frank S. Bruno, New Orleans, for Sessel D. Cain, plaintiff-appellant.
    Drury, Lozes & Curry, James H. Drury, New Orleans, for Donald G. Lambert Contractors, Inc., defendant-appellee.
    Before SAMUEL, BOUTALL and SCHOTT, JJ.
   BOUTALL, Judge.

This is a suit in tort brought by Sessel D. Cain against Donald G. Lambert Contractors, Inc. for injuries received by Cain on March 19, 1974. On that date Cain, an employee of the United States Post Office Department, was driving a postal service truck on Mirabeau Avenue in the City of New Orleans. At the intersection of Mirabeau and Paris Avenues the plaintiff made a left turn onto Paris Avenue and stopped in the neutral ground, waiting for a favorable light in order that he might proceed on Paris Avenue. When the light turned green Cain accelerated his vehicle to a speed that he described to be under 10 miles an hour. After travelling a short distance his vehicle began to slide and subsequently overturned, ejecting the plaintiff during the course of its overturning. The vehicle landed on its side and pinned plaintiff by his right ankle causing the injuries complained of.

At the time of the accident Paris Avenue was being resurfaced. There were three traffic lanes in the roadway on which plaintiff was travelling. One lane, closest to the neutral ground, had already been resurfaced. The middle lane, with an overlay of asphalt 1V2 inches thick had been prepared for resurfacing by the application of a “tacking coat” to bind the new surface to the old surface. The “tacking coat” surface remained very slippery in character for a period of possibly 15 to 20 minutes after application. The outer lane was untouched. The plaintiff contends that he skidded on the tacking coat; that there was no warning of the dangerous nature of the tacking coat; and that there were no barricades or devices to prevent a driver from entering onto the slippery surface after turning onto Paris Avenue from Mirabeau.

The trial judge dismissed plaintiff’s suit and made the following finding in his reasons for judgment.

“The court is of the opinion that the injury sustained by the plaintiff was occasioned solely through his fault. He did not maintain any proper lookout for his safety and he proceeded at too fast a rate of speed under the circumstances of the street repairs.”

The trial court’s determination that the appellant was negligent is an inference of fact and as such we are guided in our review by the jurisprudence set forth in Canter v. Koehring Company, La., 283 So.2d 716 (1973) which stated:

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

We believe the record supports the trial judge’s conclusion. The plaintiffs own testimony was that he had waited for a period of time in order that the light might turn favorably for him before he had proceeded any further on Paris Avenue, after turning from Mirabeau Avenue. During that time plaintiff had ample opportunity to observe the construction in progress and the traffic cones in the lane in which he intended to travel, that is, the lane with the slippery tacking coat substance applied.

Additionally, we note that plaintiff gave several versions of his maneuvers. According to one version, he never was in the center lane but was in the outer lane on which traffic flow was being maintained. The conclusion reached by the trial judge apparently gives no credence to plaintiff’s testimony and we agree with the result.

In view of the plaintiff’s own testimony, we cannot find that the trial judge committed manifest error in making his determination that the plaintiff was solely at fault. Accordingly, the judgment dismissing the plaintiff’s suit is affirmed.

AFFIRMED.