author: BOUTALL, Judge.

text:
    Nina M. FINCHER, wife of/and Dannie L. Fincher v. Stan SURRETTE et al., American Can Company and Employers Mutual Liability Insurance Company of Wisconsin.
    No. 9516.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 21, 1978.
    Rehearing Denied Jan. 17, 1979.

      John P. Manard, Jr. and Herbert J. Mang, Jr., New Orleans, for plaintiffs-appellees.
    Wood Brown, III, New Orleans, for American Can Co. and Employers Mut. Liability Ins. Co. of Wisconsin, defendants-appellants; Montgomery, Barnett, Brown & Read, New Orleans, of counsel.
    Before REDMANN, BOUTALL and GARRISON, JJ.
   BOUTALL, Judge.

This is a case involving damages for personal injuries against the manufacturer of a machine used to affix the cover of cans of coffee after they are filled with the product.

The facts surrounding this claim are these: Nina M. Fincher, the plaintiff-appel-lee, was involved in an accident on July 12, 1976 while in the employ of the Folger Coffee Company. She sustained a serious hand injury on the job while attempting to clean a vacuum seaming machine. This machine was manufactured by American Can Company, the appellant in this action. American Can had installed this machine at Folger’s plant in 1960.

Shortly before the accident, Mrs. Fincher had been promoted to the job of operating the seamer machine. She had only been working regularly on this machine for 2!4 hours before the injury. At the time at issue, she was employing the usual cleaning procedure whereby the valve or cylinder inside the machine (but exposed during the cleaning procedure) is turned to expose each different pocket for cleaning. (This valve is a large, heavy cylindrical type wheel with 18 pockets, each the size of a coffee can, turning on a center axis.) This is done by pushing a “jog button” which is connected to a motor and turns the valve. The machine, after being jogged, gradually comes to a stop on its own. No brakes are applied.

Appellee was injured when she attempted to clean one of the pockets by inserting her hand before the machine had come to a complete stop. She had apparently pushed the jog button too hard causing too much motion in the valve. The machine caught her fingers causing a serious hand injury which is the subject of this suit.

Suit was originally filed against various executive officers of Folger’s and against American Can Company and its insurer. Only American Can and its insurer remain as defendants before the trial and appellate courts. The case was tried to a jury and resulted in a verdict in favor of Mrs. Finch-er, awarding damages of $150,000, $30,000 of which must be paid by the appellant and its insurer. Only liability is at issue in this appeal. Quantum is not contested.

The four major issues in this appeal deal with the following:

1. The existence of a defect in the manufacture of the machine.
2. The duty to warn on the part of the manufacturer.
3. Assumption of the risk on the part of the appellee.
4. The jury instructions given by the trial court.

I. THE EXISTENCE OF A DEFECT AND THE DUTY TO WARN:

We discuss the first two issues together since we feel that they are too interrelated to allow a separate resolution of each. Appellants contend that no defect was present in the machine at the time of the accident and, further, that even if one was present, it was caused by the alterations made by Folger’s after the sale and installation of the product. They contend, in other words, that the defect, if it does exist, was not present at the time of manufacture.

A product is defective when the risks are greater than a reasonable buyer would expect. Foster v. Marshall, 341 So.2d 1354 (La.App. 2d Cir. 1977). In Welch v. Outboard Marine Corporation, 481 F.2d 252 (5th Cir. 1973), the test was phrased this way:

“A product is defective and unreasonably dangerous when a reasonable seller would not sell the product if he knew of the risks involved or if the risks are greater than a reasonable buyer would expect.”

Expert testimony was introduced to the effect that a safety defect was present in the machine in that an injury could be sustained by an operator who merely makes a “slight misjudgment”. The operator must rely purely on sight to determine whether the valve had come to a complete stop. The expert, Professor McPhate, suggests several ways to correct this defect, including guards and connecting the valve to the machine’s braking system when jogged.

We feel that the circumstances surrounding this case lead to the conclusion that a defect was present in the machine at the time of the accident. The lack of some safeguard to prevent injury to foreseeable users in a normal operation, such as the cleaning of the machine, is sufficient to render the manufacturer liable. This is especially true when coupled with the fact that the manufacturer in this case knew of safe methods of cleaning, namely cutting the power after turning the valve, or using the hand crank which does not activate the power at all. In Amco Underwriters v. American Radiator & Standard Corporation, 329 So.2d 501 (La.App. 1st Cir. 1976), the court said:

“ * * * the manufacturer of a potentially dangerous instrumentality such as the instant heating unit has a duty to instruct reasonably foreseeable users of their product with regard to its safe use. Williams v. Allied Chemical Corporation, 270 So.2d 157 (La.App. 1st Cir. 1972), writs refused, 271 So.2d 875 (La.1973).”

The knowledge on the part of the manufacturer, as established by the evidence, that the jog method was not safe, at least as employed by Folger’s employees, creates a duty to warn the buyer of the dangers involved. This is especially true considering the fact that employees of American Can Company visited the Folger’s plant approximately once a week since the installation, observed the method being employed, and made no effort to correct or inform the employees or supervisors of Fol-ger’s of the danger. In Chappuis v. Sears Roebuck & Company, 358 So.2d 926 (1978), the Louisiana Supreme Court stated:

“ * * * But when the danger is known to the manufacturer and cannot justifiably be expected to be within the knowledge of users generally, the manufacturer must take reasonable steps to warn the user.”

We reject the contention of appellant that Folger was in that class of buyers known as the “sophisticated purchaser”. See, Bradco v. Youngstown Sheet and Tube Company, 532 F.2d 501 (5th Cir. 1976) and West v. Hydro Test, Inc., 196 So.2d 598 (La.App. 1st Cir. 1967). What the buyer should know is a fact question. We find that the sophisticated purchaser doctrine is not applicable here and that Folger and its employees cannot be held to the necessary degree of knowledge to render this danger as one which is “open and obvious”. There is simply no evidence upon which we could base a conclusion that the jury’s finding on this point is manifestly erroneous. See Canter v. Koehring, 283 So.2d 716 (1973).

It is contended that for liability to attach, the defect complained of must have existed at the time the product left the possession of the manufacturer, Frey v. Travelers Insurance Company, 271 So.2d 56 (La.App. 4th Cir. 1972); Stevens v. Rex Chainbelt, Inc., 349 So.2d 948 (La.App. 1st Cir. 1977), and that Folger made alteration to the machine. However this alteration had no effect on the existence of the defect.

The alteration in question is the moving of the jog button 12 to 16 inches closer to the pocket opening than it was previously. This change has no effect since the crux of the defect is that there is no safeguard against the accident other than the operator’s visual judgment. The additional time it takes the operator to move 12 to 16 inches would not reduce the hazard to the operator since visual judgment would still be the deciding factor.

Further, the evidence shows that appellee pressed the jog button with too much force and that her judgment was bad as to when the machine had coasted to a complete stop. There is no evidence that Mrs. Fincher had pressed the jog button with one hand and had reached into the pocket with the other. We find, therefore, that the defect was present at the time of manufacture.

II. ASSUMPTION OF THE RISK:

Appellant argues that Mrs. Fincher is barred from recovery by virtue of the doctrine of assumption of the risk. For a plaintiff to assume a risk, he or she must have knowledge of and voluntarily encounter the risk which causes the injury. Knowledge is the key point and must be proved by a preponderance of the evidence. Prestenbach v. Sentry, 340 So.2d 1331 (La.1977); McInnis v. Fireman’s Fund Insurance Company, 322 So.2d 155 (La.1975).

It is clear from the evidence that assumption of the risk is not applicable here. Mrs. Fincher testified that she was not aware that the machinery was moving or she would not have placed her hand into the machine. The jury apparently believed this testimony and, with this conclusion, we agree. Appellant’s argument that the action of placing one’s hand in moving machinery constitutes assumption of the risk ignores the unrebutted testimony of Mrs. Fincher and the knowledge requirement set out above.

To say that Mrs. Fincher understood the nature of the risk involved here is to impute to her a knowledge which even her supervisors did not possess. In Prestenbach, supra, the Supreme Court stated:

“ * * * for purposes of a knowing assumption of risk, we impute knowledge to a plaintiff, not because he was in a position to make certain observations, but only when he actually makes those observations and, from them, should reasonably have known that a risk was involved.”

We, therefore, find that the appellee’s actions did not constitute assumption of the risk.

III. JURY INSTRUCTIONS:

Appellant contends that the jury instructions given by the trial judge were prejudicial in that they were “of a general rambling nature and confused the jury.” He cites three instances of prejudice: Two dealing with assumption of the risk and one with burden of proof.

Code of Civil Procedure Art. 1793 reads as follows:

“Art. 1793. Instruction to jury; objections
“At the close of the evidence or at an earlier time during the trial as the court reasonably directs, a party may file written requests that the court instruct the jury on the law as set forth in the requests. The court shall inform counsel of its proposed action upon the requests pri- or to their arguments to the jury.
“A party may not assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating specifically the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.”

Under this article, we feel that the complaints of the appellant have been waived by the failure to state his objections specifically.

In the record, the trial judge states that appellant had “objected to those aspects of the charges which were not favorable, to the defense of this case.” This is not a specific objection which reserves the right of appeal. The only specific objection brought out by the record is appellant’s objection to the lack of a charge that contributory negligence is a valid defense in product liability cases. This is not one of appellant’s contentions on appeal. General objections are not sufficient to preserve the right, nor are blanket objections. Geisler v. Louisiana Power & Light Company, 346 So.2d 339 (La.App. 4th Cir. 1977).

Further, and perhaps more important, is the fact that the jury returned and asked for further instructions on the very issues which appellant complains of in brief to this court. At that time, appellant had every opportunity to object specifically to these charges but did not do so. The record simply lacks the specificity of objection required by the Article.

We have been referred to the case of Outlaw v. Bituminous Insurance Company, 357 So.2d 1350 (La.App. 4th Cir. 1978). We note the Supreme Court’s apparent disapproval of the relevant portion of this decision in the denial of the writ found at 359 So.2d 1293. Outlaw, however, is distinguishable from our case since it found that the court could refuse to consider defendant’s objections made, by agreement, after the jury had retired. Our case deals not with the timeliness of the objection, but with the specificity of them. We have no relevant, specific objections present in our record, unlike the Outlaw case.

For all of the above reasons, the judgment of the trial court in favor of plaintiff, Nina M. Fincher, wife of and Dannie L. Fincher, is affirmed. All costs of this appeal to be paid by the appellant.

AFFIRMED.


source: Caselaw Access Project

author: REDMANN, Judge.

license: Public Domain

text:
    Michael STEVENSON v. Mrs. Betty LeBLANC.
    No. 9477.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 7, 1978.
    Rehearings Denied Jan. 16, 1979.
    Writ Refused Feb. 23, 1979.
    Joel T. Chaisson, Destrehan, for defendant.
    George H. Ware, Jr., Rayne, for plaintiff.
    Before REDMANN, BOUTALL and GARRISON, JJ.
   REDMANN, Judge.

Plaintiff alleged two oral contracts, one for $9,300 for tree work and other work and a later one on which he claimed $3,651.25, based on “time and materials plus 10%” for yet other land-clearing work. By supplemental petition, plaintiff alternatively sought $13,025 as the value of his services.

Defendant testified that she first employed plaintiff for $7.00 an hour plus materials for a variety of land-clearing work and then, when he declined tree work at that rate on a claim of expertise, she employed him (a witness corroborated) to do all her tree work for $500 which she paid when he completed that work in four days. Defendant conceded she owed a balance of $1,279.12 for the other work, having paid $1,000.

That the trial judge believed neither party’s version as to a fixed price contract is evident from his $6,000 judgment. That amount was too small to include plaintiff’s fixed price but too large to be the sum of defendant’s fixed price plus plaintiff’s other claim for $3,651.25.

The case is extremely difficult to evaluate because plaintiff presented, in support of his claim for the value of the work, only the testimony of a horticulturist who saw the trees (through or over an eight-foot-high or higher ligustrum privacy screen) three years after the work was done and from a distance of 50 to 10.0 yards (or more) away without (as far as shown) telescopic lenses. That witness testified that that tree work was worth $285 to $300 a tree in 1974 and thus the tree work was worth $7,500. (Defendant was apparently unconcerned over fixing a value of the work, and presented no evidence. Perhaps the trial judge reached his $6,000 figure by accepting $7,500 as the only proven value, and deducting the $1,500 defendant had paid.)

We conclude that this witness’s testimony is incompetent to fix the value of the work done. Unable to know in detail, under the circumstances of his inspection, the work that was done to the individual trees, he was also unable to place a fair value upon that work. As distasteful as we find defendant’s unconcern, we cannot accept defendant’s unconcern in place of the proof which it is plaintiff’s burden to supply.

Plaintiff’s $3,651.25 claim for “time and materials plus 10%” is similarly unproven (except that defendant concedes $610.62 for materials). Plaintiff’s claim includes such items as market value rentals on his own tools and equipment as a material charge, which it is not, and charges of $25 a load for his own hauling of trash, which is not a proper time-and-material contract charge.

Defendant testified that, although she personally was away from her home each day at work, she caused an employee who lived there to note the hours worked each day, and each day on returning home defendant would write into a notebook a record of the hours plaintiff had worked that day. The employee charged with noting the hours also testified that he reported the hours to defendant each day that plaintiff worked. Had the trial judge believed this testimony he might have admitted into evidence the notes thus established as regular entries in the course of the business between the parties (see Wigmore, Evidence, 3d ed., § 1517 ff.). On credibility, however, as between defendant’s employee and plaintiff we must assume from the amount of the award that the trial judge did not believe that the employee had correctly observed all the time that plaintiff worked. We are unable to reverse a trier of fact’s determination of credibility; Canter v. Koehring Co., La.1973, 283 So.2d 716.

Accepting, then, plaintiff’s testimony that he worked six days each week (and even one Sunday) from June 2 [defendant’s excluded notebook says May 30] to August 5, 1974, save three days when he went to Florida (and four days defendant says he worked on the trees), we calculate 45 working days of eight hours each at $7.00 an hour (the wage both parties agree was his wage when working for wages), we approximate plaintiff’s wage claim at $2,520 (in addition to the $500 defendant paid for, she says, tree work). We do not give him the extra 10% of his wages he claims for “time and materials plus 10%” because such a wage is contrary to our experience and common sense: one hires for a wage, not for a wage plus 10%. To that $2,520 we add $671.68 materials plus 10% (defendant’s concession of $610.62 plus 10%) and $1,344 for helpers’ wages, at $3.50 an hour for 48 days of eight hours. Defendant was aware plaintiff was employing some help yet apparently let plaintiff fix the wage being paid. Defendant denies the principal helper’s testimony that, except for rainy days, he worked six days a week and some Sundays, but presumably the trial judge believed that testimony. We do not deduct for the rainy days that the helper did not work because there is evidence that other helpers were hired for a day or two.

We conclude that the highest award the record will support is the total of $4,535.68 less the $1,000 paid (besides the $500 “for the tree work”).

The judgment appealed from is amended in principal amount to $3,535.68, with costs to be divided equally, and it is otherwise affirmed.


author: STOULIG, Judge.

text:
    VALHI, INC. v. ZAPATA CORPORATION and Zapata Development Corporation.
    No. 9523.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 7, 1978.
    Gordon, Arata & McCollam, John McCol-lam, New Orleans, Becnel & Becnel, Charles S. Becnel, Vacherie, for plaintiff-appellee.

      Liskow & Lewis, Lafayette, William R. Pitts, New Orleans, and Gene W. Lafitte, Lafayette, Martin, Himel, Peytavin & No-bile, Lloyd R. Himel, Lutcher, for defendants-appellants.
    Before LEMMON, STOULIG and SCHOTT, JJ.
   STOULIG, Judge.

Plaintiff, Valhi, Inc., the successor corporation of Southdown Land Company (Southdown), obtained a declaratory judgment relieving it from repurchasing for $1,190,000 two plantations it had sold Zapata Development Corporation (Zapata) for $1,100,000. Zapata appealed.

A short time before taking title to the St. Clair and the St. Amelia Plantations in St. James Parish, Zapata learned of a title problem in the St. Clair chain. In the title insurance policy ordered by Zapata, the Title Insurance Company of Minnesota excepted from coverage claims arising out of the “Haydel Matter,” the term that the parties used to describe the title defect. Because this sale was part of a larger transaction, the closing proceeded as scheduled on November 19, 1974. Paragraph 2.18 of the agreement of sale and purchase was added to insure that the purchaser would not forego its right to receiving a merchantable title by signing the sale. It provided:

“St. Clair Plantation. Because of the fact that Erlic C. Haydel was married to Florence Dugas Calvey on June 30, 1953, and other facts, there is possibly an outstanding undivided Vkth interest in the St. Clair Plantation (item VB of Schedule II) (the ‘Haydel Matter’). Zapata shall cause Zapata Development Corporation to acquire the St. Clair Plantation and the St. Amelia Plantation (item VC on Schedule II) and the deed from SDL to Zapata Development Corporation shall be without warranty. SDL will deliver at the Closing a title policy from Title Insurance Company of Minnesota in the amount of One Million One Hundred Thousand Dollars ($1,100,000) but such title policy may make exception to its coverage for the Haydel Matter. SDL shall use its best efforts to have any exception arising out of the Haydel Matter removed. If such exception is not removed before November 20, 1975, then Zapata Development Corporation shall, no later than March 20, 1976, reconvey by deed without warranty the St. Clair Plantation and the St. Amelia Plantation to SDL and SDL shall pay Zapata Development Corporation the sum of One Million One Hundred Ninety Thousand Dollars ($1,190,000) in cash. The exception arising out of the Haydel Matter shall be deemed removed if such title policy provided for above shall be amended so that it contains no exception for the Haydel Matter and SDL shall give to Zapata Development Corporation, its successors or assigns, a general warranty covering the St. Amelia Plantation and the St. Clair Plantation; otherwise, such exception shall be deemed not removed. Zapata shall cause Zapata Development Corporation not to convey the St. Clair Plantation or the St. Amelia Plantation other than to an affiliate of Zapata or SDL prior to the time the exception arising out of the Haydel Matter is removed.”

In the ensuing year Southdown officials sporadically attempted to resolve the Hay-del exception and discussed various approaches to removing the exception from the policy. First, it attempted to convince the title company’s attorney no defect in fact existed. It was not until July 1975 (some eight months after the sale) that Valhi contacted the title insurer’s attorney and on October 3, 1975 the title attorney declined to remove the exception on a no defect basis. Valhi officers and their attorneys discussed two approaches to curing the title, namely, (1) obtaining quitclaim deeds from the Haydel descendants; and, (2) filing a suit for judicial partition and buying out the Haydel interests at public auction. The first was rejected as too costly, while the second was not attempted because the time remaining to remove the exception was insufficient and further the realty may have been susceptible of division in kind.

Finally the Valhi representatives devised a method of removing the exception from the policy without curing the title. Valhi asked the title insurer to remove the exception guaranteeing it would execute a corporate indemnity agreement to the title company should any loss arise from removal of the exception. This indemnification was to be secured by mortgage on other Valhi real property. In effect Valhi bonded out the deletion of the exception — it did not cure the title defect and thereby render it merchantable.

By the time the details of this agreement were worked out, there was insufficient time before the November 20,1975 deadline for the customary formal endorsement to the title policy to be delivered to Zapata. Thus the New Orleans attorneys drafted the following endorsement, obtained approval from a duly authorized representative of the title insurer, and sent this tele-fax message to Zapata:

“Item 21 of Schedule B of Policy No. Z344168, dated November 20,1974, issued by Title Insurance Company of Minnesota to Zapata Development Corporation affecting St. Clair Plantation, St. James Parish, Louisiana has been removed therefrom. This constitutes an endorsement to the policy.
O. B. Taylor, Jr., Title Officer of Title Insurance Company of Minnesota”

Zapata acknowledged receipt of this message on November 19, 1975, but informed Valhi at a conference on November 24,1975 the indemnification method did not constitute a valid removal of the exception in the title policy. It tendered title to both plantations to Valhi for $1,190,000, which plaintiff rejected. Hence this lawsuit.

The trial court decided the contract clearly stated Valhi was obligated to have the Haydel Matter exception removed from the title policy and to deliver a warranty deed, and it did both. He refused to allow defendant to use parol evidence in connection with a reconventional demand which requested reformation of the November 1974 contract to more accurately state the true intent of both buyer and seller.

The trial court erred in refusing to admit parol evidence in connection with the demand for the contract reformation. We agree with the trial court’s conclusion that the contract as written is unambiguous and it clearly states the exception shall be deemed removed if the title policy is amended so that it contains no exception for the Haydel Matter. If this writing reflects the true intent of the parties, C.C. art. 2276 would apply and parol evidence would be inadmissible to alter or vary the terms of the agreement.

But in this case the evidence suggests that the parties may not have contemplated that the problem would be resolved by the removal of the exception with a seller-insurer indemnification side agreement. When Valhi (then Southdown) agreed to the sale, there existed in its files a title policy issued to it in 1972 excepting from coverage the Haydel Matter. In other words, the Valhi records reflected a title problem with St. Clair Plantation when its officials began dealing with Zapata representatives. Zapata only learned of the defect a short time before title was to be transferred in November 1974.

Andrew McCollam, Jr., president of Southdown Land Company at the time the sale was passed, is an attorney who has considerable experience with examination of titles. He testified he knows Zapata generally buys real estate for the purpose of development and resale and he assumed the two plantations were no exception. This statement suggests that both contracting parties could have intended in November 1974 that Valhi (then Southdown) must either cure the title or buy back the land. Both parties are knowledgeable in problems with unmerchantable titles and the record suggests that perhaps neither party contemplated removing an exception from a title policy by the type of indemnification agreement entered into to effect that purpose.

Reformation of a contract is an equitable remedy available to a contracting party if the instrument recites terms to which neither party agreed. Even if the language utilized is clear and unambiguous, parol evidence is admissible to establish that the language does not embody the essence of the agreement to which there was mutual assent.

In Fontenot v. Lewis, 215 So.2d 161, 163 (La.App. 3d Cir. 1968), the court stated:

“An action to reform a written instrument is an equitable remedy, and it lies only to correct mistakes or errors in the written instrument when such instrument, as written, does not express the true contract or agreement of the parties. Ober v. Williams, 213 La. 568, 35 So.2d 219 (1948). It is a personal action, even when applied to real estate, and the burden of proof rests on the one seeking reformation of the instrument to establish the mutual error and mistake by clear and convincing proof, parol evidence being admissible for this purpose. Waller v. Colvin, 151 La. 765, 92 So. 328 (1922); Walker v. Jim Austin Motor Company, 162 So.2d 135 (La.App. 1st Cir. 1964, writ refused); Agurs v. Holt, 232 La. 1026, 95 So.2d 644 (1957); Kemp v. Beasley, 188 So.2d 425 (La.App. 3d Cir. 1966); Southwest Gas Producing Company v. Hattie Brothers, 230 La. 339, 88 So.2d 649 (1956).”

See also Miley v. Thompson, 196 So.2d 640 (La.App. 1st Cir. 1967). When parties to a contract imprecisely and incorrectly state what was mutually agreed to, equity requires the one alleging error an opportunity to prove by extrinsic evidence the correctness of his allegation. See Price v. Taylor, 139 So.2d 230 (La.App. 1st Cir. 1962). Parol evidence is not offered to vary the terms of the written instrument but to show that the writing does not express the true intent or agreement of the parties.

In the case before us parol evidence was disallowed. This erroneous ruling deprives Zapata of the opportunity to prove by parol and extraneous evidence the parties intended that the retention of the plantations by the purchaser was predicated upon Valhi’s furnishing it with a clear, nonlitigious title at the end of the year. And a corresponding opportunity must be afforded to Valhi to refute any evidence presented by Zapata in support of its right to reform the agreement.

We pretermit passing upon the merits of the validity of the telefax endorsement to the title policy in order to avoid a piecemeal adjudication of this matter.

For the reasons assigned, the judgment appealed from is annulled and this matter is remanded for further proceedings consistent with the views herein expressed.

JUDGMENT ANNULLED; REMANDED.

      . The agreement of sale and purchase provided for the conveyance by Zapata to Southdown of a large agricultural property in California. The consideration for the sale was the payment by Southdown of approximately $19,000,000 and the conveyance of several properties located in various states, which included the St. Clair and the St. Amelia Plantations.

      . Merchantable title is: “One that can be held without reasonable apprehension of being assailed and readily transferable in market.” Black’s Law Dictionary 4th Ed.Rev.


text:
    GULF BUILDING SERVICES, INC. v. TRAVELERS INDEMNITY COMPANY.
    No. 9559.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 7, 1978.

      Michael Osborne, Dufour, Levy, Marx, Lucas & Osborne, New Orleans, for plaintiff.
    Richard C. Baldwin, Leach, Paysse & Baldwin, New Orleans, for defendant.
    Before REDMANN, SCHOTT and BEER, JJ.
   REDMANN, Judge.

In 1970 Gulf Building Services, Inc. merged into Macke Building Services, Inc. At that time Gulf was involved in litigation (Lou-Con, Inc. v. Gulf Buildings Svcs., La. App. 4 Cir. 1973, 287 So.2d 192, writs refused, La., 290 So.2d 899 & 901) arising out of the 1968 destruction by a Gulf employee of a Gulf customer’s building. When that litigation’s judgment became definitive in 1974, Gulf brought this action against its insurer for damages from failure to settle under its liability policy, for benefits under an employee dishonesty policy, and for the value of a suspensive appeal bond provided by two individuals. Gulf now appeals from a dismissal on an exception of no right of action (“or no interest in the plaintiff”, La.C.C.P. 927(5)), which alleged as grounds plaintiff’s non-existence as a separate corporation. Gulf asks leave to amend.

This appeal could allegedly present several questions, including a definition of a “claim existing”, which La.R.S. 12:115 E allows a merged corporation to prosecute, as well as questions of the relationship between personal sureties on an appeal bond for a corporation and its insurer and the effect of those sureties’ paying the uninsured portion of the judgment. We deem it — especially in the absence from the record of evidence apparently referred to by the trial court — inappropriate to discuss any of these questions when plaintiff only asks leave to amend. We hold only that in the case of a petition by a merged corporation asserting a claim under a premerger contract, a judgment maintaining an exception of no right of action (on the grounds that the merged corporation is no longer a “person” at interest, C.C.P. 681, and that the claim was not “existing” within R.S. 12:115 E at the time of the merger) should, rather than dismiss the petition, order amendment to substitute as plaintiff the corporation which survived the merger.

An amendment to substitute the surviving corporation removes the grounds of the exception and thus is one the court “shall order” under C.C.P. 934. That article’s Comment notes that “this article authorizes the trial judge to permit amendment of the petition whenever possible and whenever dismissal of the suit would not be in the interests of justice.” Here, the very fact of the petition’s being filed notifies the defendant that some existing human person is attempting either for himself or for some other person to assert a clearly identified contractual claim against the defendant. That existing human person’s naming as plaintiff a corporation non-existent as such (because merged into a second corporation) is akin to naming a dead man as plaintiff. Substitution has been allowed in a petition filed in the name of a dead man, in Nini v. Sanford Brothers, Inc., La.1973, 276 So.2d 262, which noted that the more basic question is, ordinarily, whether prescription is interrupted by the original petition. Holding that it is, the court reasoned, at 266, “That the plaintiff lacks the capacity to sue, for whatever reason, does not mean that.no suit would exist.” See also Simms v. Braren, La.App. 4 Cir. 1971, 552 So.2d 459.

The merged corporation is not altogether dead as a party litigant because R.S. 12:115 E allows it to sue and be sued in some circumstances. In the absence of those circumstances, the cases of the dead plaintiff seem closely analogous. We conclude that the amendment is permissible and should have been allowed by the trial court.

The judgment is amended to allow amendment to the petition within a time to be fixed by the trial judge. Costs are to await final outcome.


author: SCHOTT, Judge.

text:
    Robert FRAGALE v. SEARS, ROEBUCK & CO., and Allstate Insurance Company.
    No. 9567.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 7, 1978.
    Rehearing Denied Jan. 16, 1979.

      Chaffe, McCall, Phillips, Toler & Sarpy, Harry McCall, Jr., New Orleans, for defendants-appellants.
    Walter F. Gemeinhardt, A Professional Law Corp., Walter F. Gemeinhardt, New Orleans, for plaintiff-appellee.
    Before REDMANN, SCHOTT and BAILES, JJ.
   SCHOTT, Judge.

Defendants Sears and its liability insurer, Allstate Insurance Company, have appealed from a judgment based on a jury verdict in plaintiff’s favor for damages resulting from his fall down the steps in defendant’s store in New Orleans on December 19, 1974. Plaintiff has answered the appeal seeking an increase in the amounts awarded to him. Plaintiff was awarded $3,000 for pain and suffering, $6,000 for medical expense, $13,-000 for past loss of wages and $28,000 for future loss of wages.

Plaintiff was descending a stairway from the first floor to the basement of defendant’s store when he slipped and fell on the steps. The evidence indicates that there were pieces of chocolate candy bar on the steps which caused plaintiff to fall. Although some of defendant’s personnel denied the presence of the candy on the steps, one of its security personnel testified that it was there and a photograph of the steps shows its presence. This witness also testified that some of the chocolate was on Plaintiff’s shoe, as did a friend of plaintiff who accompanied him when the accident took place.

In contesting liability, defendants contend that plaintiff was guilty of contributory negligence in failing to see the chocolate as he descended the steps, and they take issue with the failure of the trial judge to give the jury one of their requested instructions.

Regarding contributory negligence, the jury was properly instructed on the issue and resolved it against defendants. Defendants rely on Skyles v. State Farm Fire & Casualty Co., 210 So.2d 609 (La.App. 2nd Cir. 1968) and Jopling v. Shortcut White Kitchen, Inc., 204 So.2d 128 (La.App. 1st Cir. 1967), but we find these cases unpersuasive. In the first place, both of these cases were decided in favor of the defendants in the trial court with the plaintiff appealing, so that the rule of appellate review to affirm, if the judgment is reasonably supported by the record, operated against those plaintiffs whereas it operates in favor of the plaintiff before us. In the Skyles case, the court noted that the plaintiff was not looking where she was going although she was aware that the plate glass door was there, having gone through same just a few moments before the accident, and having visited a number of homes equipped with this type of door, so that she was familiar with it. In the instant case, as plaintiff descended the stairs there was a directory of merchandise available in the basement of the store which attracted plaintiff’s attention as he descended the steps, and his accident did not occur because of the nature of the steps itself but because of the presence of a foreign substance on the steps.

In the Jopling case, the court stated the rule of law to be that where there are no defects and no hidden dangers or traps a person is excluded from recovery where injury results from her own negligence in failing to observe normal conditions. In the instant case we have the presence of a defect and the rule of the Jopling case is entirely consistent with the jury’s verdict.

The judgment is likewise consistent with Baptiste v. Schwegmann Bros. Giant Super Markets, 338 So.2d 1163 (La.App. 4th Cir. 1976), in which contributory negligence was rejected where plaintiff slipped and fell on a spill of ice-cream which was in plain view but which she did not see. Finally, in Kavlich v. Cramer, 315 So.2d 282 (La.1975), the court found no contributory negligence where the plaintiff slipped on a piece of banana which “was easily seen.”

Considering the evidence and the law, there is no basis for a reversal of the jury’s rejection of the defense of contributory negligence.

The jury instruction requested by defendants and rejected by the trial court was as follows:

“The mere fact that witnesses who testify in favor of a corporation are employees of that corporation is no reason for discrediting their testimony, especially not when the employees would not be responsible for paying off any judgment which might be entered against the corporation.”

The trial court stated, and we agree, that the sense of this instruction was adequately covered in the general instruction to the jury, that they were to evaluate the testimony of the witnesses with the usual admonition that they consider whether the witness has an interest in the outcome, if he exhibits prejudice one way or the other, to what extent his testimony is corroborated by other evidence and his behavior on the witness stand.

We have concluded that the trial judge’s refusal to give defendants’ requested instruction was proper under these circumstances.

The more troublesome issue in this case is that of the quantum of damages awarded plaintiff.

Immediately after his accident plaintiff was taken to Touro Infirmary where he complained of an injury to his back. He was not hospitalized at that time, but the record of his admission shows that arrangements were made to transfer him to the Veterans Administration Hospital for treatment. He returned to Touro for additional treatment on December 22, and his condition was diagnosed as a possible contusion' of the low back. He was admitted to the Veterans Hospital on January 3, 1975, where he was treated with pelvic traction and medication. A herniated disc was suspected at that time but conservative therapy was administered until he was first discharged from the hospital on January 24. He returned to the hospital for treatment on January 28 and on February 6 he was readmitted to the Veterans Hospital where he remained until his discharge on March 6. During this hospitalization a myelogram was performed on February 19 and revealed a significant defect at the L4 to 5 level. On February 27 a bilateral laminec-tomy of L4 was performed with removal of the L4r-5 disc bilaterally and a left laminec-tomy of L5 was performed with inspection of the L5-S1 disc, which was found to be normal.

On September 16,1975, plaintiff was seen by Dr. Emile A. Bertucci, a general surgeon. According to the history taken by Dr. Bertucci, plaintiff got along fine after his operation, went back to work and was doing well over a few months when gradually the pain in his back returned. He found limitation of motion, complaints of pain on examination and numbness in his left leg. Asked whether there was any spasm he stated that he never found “any true muscle spasm” but he did find “what I considered a tightening and pulling of the back muscles.” X-ray examination revealed a narrowing of the disc space between L5 and SI, and some degree of spon-dylolisthesis at this site. He thought that plaintiff had either a recurrence of the her-mated disc between L4 and L5 or herniation at L5 to SI, which was not discovered when the laminectomy was performed on L5 the previous February. He prescribed back exercises, hot moist compresses and baths, massage, medication and the wearing of a back brace, which had been prescribed for him after his operation. He saw plaintiff as a patient five times between that first visit and February, 1976, when plaintiff went to California, and again after his return from California on June 27, 1977, and five times between then and the date of the trial on October 26, 1977.

Dr. Bertucci stated that there was no change in plaintiff’s condition from the time he first saw him in September, 1975, until the day before the trial. He felt that plaintiff needed another myelogram to determine whether there was a disc problem or not as well as other studies, but these were expensive and plaintiff was not able to afford them. It was brought out in plaintiff’s testimony that his eligibility at the Veterans Hospital had been terminated. Dr. Bertucci felt that plaintiff was unable to engage in heavy physical labor and, although he could do some sedentary work such as he was doing at the time of the trial, anything involving a great deal of walking or sitting for long periods would cause him difficulty. He stated that plaintiff would always have some pain off and on in his back and he assigned a disability rating of 50% on the basis of the removal of parts of the vertebra at L4 and L5 in the laminectomies, the removal of the L4-5 disc and the disc problem remaining at that site and between L5 and SI.

The defendants produced a neurosurgeon, Dr. Richard Levy, who testified that on the basis of his examination of plaintiff on January 12, 1976, there was no residual nerve root involvement from plaintiff’s accident and consequently he found no functional disability whatsoever. He qualified his opinion with respect to disability on the ground that there were abnormal findings on the X-rays but this was outside of the field of his specialty of neurosurgery and in the field of an orthopedist. He admitted that a person who had had the kind of operation plaintiff was subjected to would have complaints about being unable to sit for long periods and if these complaints persisted an orthopedist should be consulted, especially considering the narrowing of the disc between L5 and SI.

Plaintiff was 45 years of age at the time of his injury and testified that he had worked as a boiler salesman which involved heavy physical work in 1971. In that year he earned $7751. In 1972 he earned $4725 as a boiler salesman, and in 1973 he ©pened his own business which failed, with the result that he had no reported income. In 1974 he worked as a bartender, earning $4000 and in 1975 he had no income because of his accident and the resulting hospitalization and surgery. In 1976 he had gone to work for a bail bondsman working on commission and on the telephone and had earned $2400. He testified that he does suffer with pain in his back, his activities are restricted and he is unable to do heavy work or work without pain at any job involving long sitting or standing.

It is difficult to reconcile the jury’s verdict with the evidence. On the one hand, an award of $3000 for general damages for pain and suffering for plaintiff is a clear abuse of discretion on the low side. Defendants argue that this low figure reflects the jury’s evaluation of plaintiff’s credibility, but this factor in no way diminishes the fact that plaintiff sustained a serious back injury which necessitated 48 days of hospitalization, a myelogram, removal of parts of his vertebra in the surgical lami-nectomies, and the removal of a herniated disc. Even Dr. Levy classified his disability as a 10% anatomical disability because of the loss of these parts of his body. The only medical testimony that he continued to suffer with disc problems was not really contradicted by Dr. Levy who qualified and restricted his own testimony to negate only a nerve root involvement. We have therefore concluded that the award of $3000 was inadequate and should be increased.

On the other hand, the evidence does not support the awards of $13,000 for loss of past earnings and $28,000 for loss of future earnings. In the first place, Dr. Bertucci testified that he could work for the bail bonding company although he would be troubled with some pain on long sitting. Plaintiff’s employer testified that he worked on a commission and averaged about $100 a week for the two and a half to three months preceding the trial. At this rate he would earn at least $5200 per year. During 1976 he earned $2400 in a part time capacity with the bail bond company, and it appears from Dr. Bertucci’s testimony that he had the capability of performing this type of work perhaps as early as the end of 1975. When this is considered in the light of the fact that plaintiff had no earnings at all in 1973 and earnings of $4725 in 1972 and $4000 in 1974, the conclusion is inescapable that the awards for loss of earnings cannot be supported by the record and constitute an abuse of discretion.

The trial judge instructed the jury to include in their award for pain and suffering not only the past but the future pain and suffering as well. Plaintiff should have been but apparently was not compensated in the $3000 for his future pain and suffering, and perhaps the jury included compensation for the pain and suffering which plaintiff has off and on while working at a desk in their award for past and future earnings.

In Harris v. D’Antoni, 355 So.2d 1049 (La.App. 4th Cir. 1978), we were confronted with a similar situation and reached the following conclusion:

“Although the $12,000 award for pain and suffering is woefully inadequate and the $45,000 award for loss of income is excessive, nevertheless, we cannot say the $57,000 total award, under the circumstances, violates the much discretion rule.”

In the instant case we cannot say that the total of $44,000 award for pain and suffering and loss of income violates the much discretion rule. Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


author: BEER, Judge.

text:
    Gothlyn J. RECK v. Richard STEVENS.
    No. 9568.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 7, 1978.
    Rehearing Denied Jan. 16, 1979.
    Writ Granted March 5, 1979.

      George H. Jones, New Orleans, for defendant-appellant.
    Gothard J. Reck, New Orleans, for plaintiff-appellee.
    Before STOULIG, BOUTALL and BEER, JJ.
   BEER, Judge.

Gothlyn J. Reck sued appellant, Richard Stevens, for damages occasioned as a result of an altercation which took place at the home of her grandmother. Stevens reconvened. The trial court dismissed the recon-ventional demand and awarded Reck $11,-326.75 in general and special damages. Stevens suspensively appeals, and Reck has answered, seeking an increase. Appellant specifies trial court error in its finding of excessive force and alternatively contends that the general and special damage awards must be reduced. Reck contends that they are too low and should be increased.

Reck is a 31-year-old art teacher. Since early childhood, she resided at her grandmother’s home. When Stevens and his wife also took up residence there, Reck moved out but visited frequently. The incident which provoked this lawsuit occurred during one of these visits: Reck was in the process of picking up several framed family photographs when her grandmother intervened and reached for one which Reck had already stacked in her arms. A sort of tug of war ensued. The grandmother fell. Reck contends that she then stooped down to help her grandmother up. Stevens, who had come upon the scene, contends that it was necessary for him to intervene in order to defend the elderly lady from the enraged Reck, who, he says, raged out of self control. He pushed her away and slapped her, causing her to fall to the floor. When she arose, he hit her in the face, allegedly in self-defense due to her threatening him (he believed) with the frames containing broken glass. The force of these last two blows apparently propelled Reck part way across the room.

Following a lengthy trial, the district judge determined that Stevens’ actions were unreasonable and excessive under the circumstances, and we find no manifest error in the factual conclusions of the trial judge on the issue of liability.

Reck was examined by Dr. George Farber, a dermatologist, several hours after the incident. It was his opinion that a small laceration inside her mouth resulted from the blows to her face. She was later seen by Dr. Wallace Rubin to whom she complained of ear problems. Tests conducted by him indicated below normal hearing ability, which may have been trauma connected, and she was treated by Dr. Rubin for approximately two months.

Dr. Dorsey Dysart testified that he treated Reck for approximately four months. In his opinion, she suffered from a post concussion syndrome with an estimated recuperative period of three to six months.

The trial court’s award of $10,000 for pain and suffering is, we conclude, a breach of discretion. In accordance with Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), and Gaudet v. Allstate Insurance Company, 346 So.2d 333 (La.App. 4th Cir. 1977), writ den. 350 So.2d 892 (La.1977), we are compelled to reduce that award to $5,000.

Though the special damage award contains minute arithmetic errors, it is, essentially, correct and is affirmed.

Accordingly, the amount of the judgment in favor of Gothlyn J. Reck and against Richard Stevens is amended to the figure of $6,326.75 and, as amended, is affirmed, at appellant’s cost.

AMENDED AND AFFIRMED.


author: SCHOTT, Judge. GULOTTA, Judge,

text:
    McDonald MEEK v. RIVER PARISHES COMPANY, INC.
    No. 9571.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 7, 1978.
    Rehearing Denied Jan. 16, 1979.
    Joseph W. Nelkin, New Orleans, for plaintiff-appellant.
    Camp, Carmouche, Palmer, Barsh & Hunter, Frederick S. Haygood, Metairie, for defendant-appellee.
    Before REDMANN, GULOTTA and SCHOTT, JJ.
   SCHOTT, Judge.

Plaintiff has appealed from the dismissal of his claim against his employer for unpaid wages, statutory penalties and attorney’s fees.

Plaintiff was employed at a monthly salary of $1,700 per month, payable semimonthly on the first and fifteenth. On June 2, 1977, Meek was hospitalized as a result of an injury which he claimed was work connected. According to defendant, plaintiff was terminated effective June 15 and paid through that date. Plaintiff contends that he was employed on a monthly basis and is entitled to receive wages through the end of June as well as penalties and attorney’s fees.

In his reasons for dismissing plaintiff’s claim, the trial judge stated that since there was a “bona fide” dispute over whether or not wages were due and whether or not there involved a state or federal remedy, R.S. 23:631-632 should not be applied. We reach the same result as did the trial court, but for the simple reason that plaintiff was due no unpaid wages and the cited statutes are inapplicable.

Plaintiff was not entitled to wages after June 2 because he did not work after June 2. In the absence of some special contractual provisions an employee who is unable to work because of sickness or injury, or is absent from work for any reason has no right to be paid his salary. Plaintiff cites no authority for his position that he is entitled to wages for a period when he was disabled and presumably entitled to workmen’s compensation benefits.

Plaintiff testified that he did some telephoning in his capacity as an employee while he was in the hospital, but this does not support an award of even a minor fraction of his salary after June 2 so that the payment of 100% of the salary through June 15 more than compensated him for these telephone calls. Accordingly, the judgment is affirmed.

AFFIRMED.

GULOTTA, J., concurs.

GULOTTA, Judge,

concurring.

I concur.

Plaintiff’s argument is not adequately addressed in the majority opinion. The basis of his claim is that his oral employment agreement was on a monthly basis, and, although hospitalized June 2, 1977, he continued to work for defendant through the month of June and is therefore entitled to receive wages through the end of June, as well as penalties and attorney fees for defendant’s failure to pay the entitled to wages.

Because plaintiff’s monthly salary was paid semi-monthly (the 1st and 15th), I conclude plaintiff’s pay period ended on June 15th and not June 30th. See Mason v. Norton, 360 So.2d 178, (La.1978). The issue, therefore, is whether or not plaintiff was terminated on or before June 15th. If terminated subsequent to June 15th, plaintiff is entitled to unpaid wages, and perhaps penalties and attorney fees. If, on the other hand, plaintiff had been terminated on or before June 15th there exists no entitlement to unpaid wages or penalties and attorney fees.

Plaintiff’s attorney wrote a letter dated June 15th to the defendant company (the letter was not offered in evidence nor included in the record) on plaintiff’s behalf in connection with the claimed work related injury. This letter apparently made reference to earlier telephone calls from the attorney to the vice president of the company, which were unanswered. On June 23, 1977 the vice president sent a letter to plaintiff in which he stated:

“We have been put on notice by your attorney of their representation of your interest. Accordingly, I would appreciate you forwarding all company credit cards, tools and equipment which may be in your possession, to me at your earliest convenience. In the meantime, please refrain from using such cards for your personal use or any other use . . .”

In a July 7th letter to the company from plaintiff’s attorney, demand for unpaid wages was made. Plaintiff, at one point in his testimony, indicated that he interpreted the June 23rd letter to be the date of termination, however he later indicated that he had worked for the company through the month of June and July and did not interpret the letter as indicative of termination. The company vice president indicated that the company had plaintiff’s termination under consideration on or before June 15th and payment was made on that date for the pay period June 1st through June 15th. He stated further, that because of the June 15th communication and the earlier telephone calls around June 10th or 12th, plaintiff had terminated his employment prior to June 15th.

However, the corporate officer indicated that on June 7th or 5th, neither he nor any officer of the company had made the determination that plaintiff was terminated, but that when the June 15th paycheck was issued he had “pretty much” made a determination that plaintiff was terminated.

The evidence considered, I conclude plaintiff was terminated on June 15, 1977; he was paid wages up to the date of termination and, accordingly, there exists no entitlement to unpaid wages.


text:
    SIERRA CLUB v. LOUISIANA DEPARTMENT OF WILDLIFE AND FISHERIES (formerly known as Louisiana Wildlife and Fisheries Commission).
    No. 9575.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 7, 1978.
    Rehearing Denied Jan. 16, 1979.
    Adams & Reese, Sam A. LeBlane, III, William S. Poole, Jr., New Orleans, for defendant-appellee, Gifford-Hill & Co., Inc.
    Dufour, Levy, Marx, Lucas & Osborne, Michael Osborne, New Orleans, for plaintiff-appellant.
    Peter E. Duffy, Metairie, for defendant-appellee, La. Dept, of Wildlife & Fisheries.
    Before REDMANN, GULOTTA and SCHOTT, JJ.
   SCHOTT, Judge.

On May 12, 1977, plaintiff filed a petition to reverse a decision of defendant handed down on April 1, 1977, granting a permit to Gifford-Hill & Co., Inc. to construct a bridge across the Tangipahoa River in Tan-gipahoa Parish. The petition also contained a prayer for a declaratory judgment that the permit was void. Plaintiff attacked the decision on the grounds that it was made in violation of portions of the Natural and Scenic Rivers System Act, LSA-R.S. 56:1841 et seq. and the Louisiana Administrative Procedure Act, R.S. 49:951 et seq. Plaintiff charged defendant with being arbitrary and capricious, abusing its discretion, violating the law and reaching a manifestly erroneous conclusion considering the evidence presented to it.

Plaintiff alleged that the construction of the bridge by Gifford-Hill over the Tangi-pahoa River is detrimental to the environment and beauty of the river and that the issuance of the permit for the construction of the bridge was in direct conflict with the spirit and purpose of the Natural and Scenic River System Act.

The trial judge dismissed plaintiff’s suit on the basis of the pleadings and the record of the proceedings conducted before defendant, and from this judgment of March 8, 1978, plaintiff has appealed.

The Natural and Scenic Rivers System Act itself does not contain any reference to the construction of bridges as such. Section 1845 prohibits “channelization, clearing and snagging, channel realignment and reservoir construction of those rivers and streams included within this system.” Section 1843 provides for the purpose of the act as follows:

“This system shall be administered for the purposes of preserving, protecting, developing, reclaiming and enhancing the wilderness qualities, scenic beauties and ecological regimen of certain free-flowing streams or segments thereof. This system shall further be administered for the purpose of preserving aesthetic, scenic, recreational, fish, wildlife, ecological, archaeological, geological, botanical, and other natural and physical features and resources found along these streams or segments thereof.”

In connection with the administration of the system, defendant on September 18, 1973, adopted guidelines and procedures for the administration of the act.

Under Section 6 thereof the same activities listed in Section 1845 of the act as prohibited uses are designated Class A uses and absolutely prohibited. Section 7 of defendant’s guidelines provides as follows:

CLASS B USES: FULL AND THOROUGH EVALUATION REQUIRED
All other significant uses of the natural and scenic rivers and streams or their banks designated by R.S. 56:1846, significantly effecting the purposes for which the system is established shall be Class B uses. Class B uses may be undertaken upon the issuance of a permit by the Administrator after a full and thorough evaluation of the impacts of the proposed use. The evaluation shall consider the purposes for which the System is established and shall be made with a view toward maintaining the fundamental character and unique natural values associated with the System. Class B uses shall include but shall not be limited to pipelining, tree cutting, building of bridges, building of camps, bulkheading, dredging and canalling of adjacent land areas.

The guidelines prescribe the parameters for evaluations of applications for permits made pursuant to Section 7, the procedure to be employed, provisions for public hearings and third-party input, and under Section 27 a provision for judicial review recognizing the right of any person interested in the proceedings to seek judicial review in accordance with R.S. 49:964.

At the time plaintiff filed its petition the permit for the bridge had been issued only a month previously. However, by the time the judgment appealed from was signed the bridge had been completed. On June 21, 1977, plaintiff filed a motion in which it alleged that construction of the bridge had begun, and it sought a stay enforcement of defendant’s decision pursuant to R.S. 49:964 C. This motion for a stay was denied on June 30, 1977, and the record is silent with respect to any attempt by plaintiff to appeal or seek supervisory relief from the refusal of the trial court to grant a stay.

We have raised on our own motion the question of the mootness of this appeal. The bridge has been built and the only relief sought by plaintiff is a declaration from this court that the permit issued for the construction of the bridge is void.

The posture of the case is much the same as Wilshire South Ass’n v. Jefferson Parish Zon. App. Bd., 181 So.2d 866 (La.App. 4th Cir. 1966) and Graham v. Congregation of St. Rita Roman Catholic Church, 146 So.2d 666 (La.App. 4th Cir. 1962), certiorari denied. In those cases it was held that a suit for a declaratory judgment as to a defendant’s right to construct a building was properly dismissed when plaintiff had not sought injunctive relief and the building was already constructed by the time the case was decided by the Court of Appeal.

In A To Z Paper Co. v. Louisiana State Board of Education, 251 So.2d 643 (La.App. 1st Cir. 1971), plaintiff sued to enjoin the Board from awarding a contract to a competitor and for a judgment declaring the contract null and void. It took a devolutive appeal from a judgment dismissing its suit. By the time the case reached the Court of Appeal the contract had been fully executed but plaintiff requested the court to render declaratory relief. The court disposed of the case as follows:

“When the contract was awarded and executed in full, the only controversy between the parties presented by this proceeding became moot. A justiciable controversy between the parties must exist before the courts can render declaratory judgments relative thereto. Stoddard v. City of New Orleans, 246 La. 417, 165 So.2d 9 (1964).
“Since the issues here presented are moot, and no justiciable controversy appears, we think that any opinion relative thereto would be purely advisory, and rendition of such opinions is reprobated by law. The appeal is therefore dismissed, at plaintiff’s cost.”

In the instant case Gifford-Hill got a permit to build the bridge and proceeded with construction. Plaintiff sought no in-junctive relief and neither defendant nor the trial court stayed the effect of the permit. Since the bridge is finished the validity of the permit is now moot.

Accordingly, this appeal is dismissed at plaintiff’s cost.

APPEAL DISMISSED.


text:
    CITY OF NEW ORLEANS et al. v. BOARD OF TRUSTEES OF the FIREFIGHTERS’ PENSION AND RELIEF FUND et al.
    No. 9584.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 7, 1978.
    Rehearing Denied Jan. 16, 1979.
    Writ Refused March 5, 1979.

      Dodd, Barker, Boudreaux, Lamy & Gardner, C. Paul Barker, New Orleans, for def endants-appellants.
    Philip S. Brooks, City Atty., Frank J. Varela, Deputy City Attorney, New Orleans, for plaintiffs-appellees.
    Before REDMANN, GULOTTA and SCHOTT, JJ.
   SCHOTT, Judge.

At issue here is the validity of certain guidelines adopted by the Board of Trustees of the Firefighters’ Pension and Relief Fund on July 13, 1977 (copy of which follows this opinion as an appendix) and resolutions adopted by the Board in the implementation of those guidelines on September 29 and October 12, 1977.

For sometime prior to the adoption of the guidelines the Board had been confronted with the question of the eligibility for membership in the pension plan of certain employees of the Fire Department whose duties did not include participation in the actual fighting of fires. When the matter first arose the issue involved a considerable number of personnel who were assigned to the Fire Prevention and Fire Alarm Divisions, but by the time the case was tried it was conceded by plaintiffs that these individuals were not eligible. The issue narrowed down to the eligibility of those individuals who had been engaged in fire fighting in the past but who have been transferred to positions in the Department which do not entail fire fighting, such as in the repair shop for the small tools of the department, a public relations position, and other administrative positions.

In the resolutions of September 29 and October 12, adopted pursuant to guidelines 4 and 5, fifteen individuals were declared as not engaged in actively extinguishing fires. Four of them were notified that unless they transferred to such duties within thirty days they would forfeit their participation in the fund. The remaining eleven were given six months in which to transfer to sick leave status or retire under the pension system because of permanent disability or, in default of that to forfeit all further participation in the fund.

In adopting the guidelines and resolutions defendants relied on LSA-R.S. 33:2101 which contains the following definition:

“ . . . The word ‘firefighters’ as designated in this Subpart is defined as any individual employed by the fire department of the city of New Orleans who is actively engaged in the extinguishing of fires.”

This suit was brought by the City of New Orleans and various officials of the City against the Board and the individual members thereof for injunctive and declaratory relief. The following is a summary of the position taken by plaintiffs:

The Superintendent of the Fire Department is vested with exclusive authority over the employees of the department by the Home Rule Charter of the City. Included in his authority is the right to classify an employee as one who is actively engaged in the extinguishment of fires along with eligibility for membership in the pension plan. Thus, the Board’s duty to include in the plan an employee so classified by the Superintendent as eligible is mandatory and ministerial.

The guidelines “represent an unconstitutional and unlawful usurpation by the Board of Trustees of management prerogatives reserved to the superintendent” by the Home Rule Charter and are inconsistent with the intent of the Pension Plan law. Alternatively, the law itself is unconstitutional. Defendants’ actions constituted an unlawful intrusion into and usurpation of management prerogatives, created a disruptive influence on the administration of the fire department, and produced a damaging impact on the morale and efficiency of department employees who are threatened by the Board with imminent forfeiture of their participation in the pension plan.

Thus, the guidelines and resolutions present a clear and present danger to the efficient administration of the department by virtue of the imminent transfer of certain key employees from sensitive and essential positions of management responsibilities and duties to other positions in the department, or to sick leave or retirement, leaving their present positions unmanned or to be filled by unqualified persons to the detriment of the public health, safety and welfare. Furthermore the department’s ability to fill these positions with qualified persons in the future will be hampered.

The case was tried on a stipulation of all pertinent facts. The individuals singled out by the Board have all been firefighters “actively engaged in the extinguishing of fires” for varying periods of time, and all were originally covered without question by the pension fund but are now occupying various administrative positions under the appointment of the Superintendent, which preclude or exempt them from participating in the “Extinguishing of fires.” Some were transferred to their present duties because of injury or sickness so that guideline No. 4 was applicable to their situation, while others were in good health and affected by guideline No. 5.

At the hearing the parties stipulated into evidence the Rules and Regulations Manual of the Fire Department and the Civil Service Fire Suppression job classifications which include positions occupied by all of the fifteen targeted individuals. In brief to this court plaintiffs argue that the Board’s action in removing the individuals from coverage in the pension plan because they no longer fit the definition of firefighters under R.S. 33:2101 was an infringement on the constitutional prerogatives of the Civil Service Commission which classified these individuals as firefighters even though they are not presently called upon for active engagement in the extinguishing of fires.

Defendants filed peremptory exceptions of no cause of action and no right of action which were referred to the merits by the trial court, and after a hearing which consisted of some testimony by the Superintendent of the Fire Department and the introduction of the various documents mentioned, and others, the trial court rendered judgment in favor of plaintiffs, declaring the guidelines and the two subject resolutions null and void and granting a permanent injunction against defendants from implementing the guidelines and resolutions. From this judgment defendants have appealed.

In his reasons for judgment the trial judge stated that the issue was:

“To whom has the legislature delegated the authority to interpret its statutory definition of ‘firefighter’ and to promulgate guidelines that set standards for determining who is included within that statutory class and is thus eligible to receive pension benefits from the ‘Firefighters’ Pension & Relief Fund?”

After discussing the statutory and factual background of the case, as has already been discussed herein, the court stated:

“The Board does not contend that the individuals could not again become members of the Fund if they, at a future time, do work of a nature which would give them an opportunity to actually be engaged in the extinguishment of fires. In effect, what the Board is doing is suspending these employees from the operation and the benefits of the Firefighters’ Pension and Relief Fund during that period of time in which their occupation does not include some activity which would engage them in the extinguishment of fires.”

The court further noted that R.S. 33:2103 provides that “[t]he Board shall assess each member of the Fire Department not less than 5% of his salary” and, beginning July 1, 1973, “the Board shall assess each member of the Fire Department not less than 6% of his salary;” and under the same section it was provided that the Board “shall hear and decide applications for relief, pensions and death benefits under this subpart.” The court noted that nowhere in the pension law was the Board granted the power to determine eligibility for membership in the fund, that each “member of the Fire Department” was to be assessed as opposed to the word “Firefighters” used in R.S. 33:2101, and, finally, the phrase, “member of the Fire Department,” and the word, “firefighter,” are both used throughout the statutes. The court then concluded:

“It is apparent from the sub-part ‘D’ that ‘each member of the fire department’ is to be (and undoubtedly is being) assessed. It therefore appears clear that it was not the intention of the Legislature to have ‘each member' assessed while one or more of such members would not be eligible to join the fund because he was not ‘actively engaged in the extinguishing of fires.’ For the reasons herein set forth. The Court is of the opinion that the Board of Trustees was, and is, without the right to attempt to determine which members of the Fire Department are eligible to become members of the pension fund by determining whether or not they are actively engaged in the extinguishment of fires, and hence the Board was without right to adopt the guidelines which it did which enabled them to make such determination. Accordingly, the Court has no alternative except to grant the relief for which plaintiffs have prayed.”

In analyzing the reasons of the trial court for judgment, it appears that he was largely influenced by his understanding that every member of the Fire Department was being assessed for contributions to the fund but defendants would extend benefits only to certain employees who were “firefighters” within the definition of § 2101. This impression was erroneous. Under the Civil Service job classifications there are four divisions of employees, namely, Fire Suppression, Fire Prevention, Fire Alarm and Fire Administration. Only those in the Fire Suppression Division are assessed contributions to the pension fund. Those in the other three divisions do not make contributions to this fund. There is no dispute about their eligibility for membership in the fund and it is understood that they are covered by the general city pension fund, as are other classified employees of the City of New Orleans in other departments. Plaintiffs admit that the trial court erred in adopting this reason for his judgment but take the following position:

“This court should therefore affirm the judgment of the lower court which declared the pension coverage eligibility rules and regulations null and void as being beyond the statutory authority of the Board to adopt and which permanently enjoined the Board from implementing those rules and regulations and from implementing the series of pension coverage forfeiture resolutions directed to the fifteen targeted fire suppression employees. However, in affirming that trial court judgment this court should do so for different reasons in that this court should recognize that the pension system was created and exists only for the benefit of employees assigned to fire suppression classifications within the City Civil Service System and that as to that group of fire department employees the Legislature has not delegated authority to anyone to determine pension coverage eligibility.”

In determining the validity of defendant’s guidelines and resolutions, we must first consider if they are consistent with the statute which created the Board, namely, Act 120 of 1969 as amended, R.S. 33:2101 to 2120. The very first sentence of § 2101 provides:

“A pension and relief fund for firefighters in the City of New Orleans is created.

And the last sentence of § 2101 defines a firefighter as “any individual employed by the fire department of the city of New Orleans, who is actively engaged in the extinguishing of fires.”

Unfortunately, as noted by the trial judge the phrase, “member of the Fire Department,” is used in various places throughout the act, as well as the phrase “employee of the Fire Department.” For instance, § 2103 provides that the Board shall manage the fund which is “for the relief or pensioning of disabled, superannuated and retired members of the fire department . . . .” This section provides that should an “employee who was employed prior to January 1, 1968, leave the employment of the city fire department” 80% of his accumulated contribution shall be paid to him. § 2103.2 contains a companion provision for “the employee” who leaves “the employment of the city fire department at any time” to receive all contributions he paid in after December 31, 1967. However, both of these sections provide that the withdrawing employee shall forfeit all credits for service in the system. § 2103.1 provides for “emergency or supernumerary firefighters.” §§ 2113 and 2113.1 providing for disability payments refer to “any member of the fire department.” § 2114 providing for death benefits also refers to “any member of the fire department” as entitled to benefits but also uses the word “firefighter” in various places throughout the section. § 2117 provides for the retirement of “[a]ny member who has performed faithful service in the fire department for twenty years or more,” and for retirement benefits for the member who elects to retire “at any time after twenty years of service as a member of the fire department.” Subsection C of § 2117 provides that “any member or employee of the fire department covered by this Subpart shall be mandatorily retired upon attaining his or her seventieth birthday”. § 2117.3 provides that:

“Any firefighter who enters the employ of the fire department, . . . and who is a contributing member of this system, may retire . . .

Act 120 of 1969 which amended and reenacted the entire Subpart under discussion used the word “firefighter” for the first time. Previously the act used the words fireman or firemen, for which there was no statutory definition as there presently is for firefighters.

The pension and relief fund was originally established by Act 43 of 1902, at a time when the Fire Department was undoubtedly a simple agency in which all members engaged in the extinguishment of fires. As the population of the city grew and society became more complex the fire department also expanded and required many backup administrative and other personnel who would not fight fires. The pension plan administered by defendants is more liberal and provides greater benefits to its members than the regular pension plan available to city employees in general. The obvious purpose for the distinction is to compensate those who risk life and limb in the hazardous duty of actually fighting fires. This is the reason why the city does not even contest the exclusion from the fund of those employees who were in the three divisions of the Fire Department other than the Fire Suppression Division. However, with respect to those in the Fire Suppression Division, plaintiffs would disregard the actual duties being performed by its members and have them continue to build up these liberal retirement and pension benefits even though they no longer expose themselves to the hazards of fire fighting, and irrespective of the length of time in which they are removed from these duties. Not only would this provide such individuals with an unfair advantage over all other employees of the Fire Department but it would thwart the clear intention of the legislature in the enactment of the plan.

The act itself is silent with respect to the particular problem at hand, namely, that of a firefighter covered under the plan who has been transferred to non-firefighting duties and the transfer’s effect on his membership. However, § 2103 provides as follows:

“The board of trustees shall have exclusive control and management of the fund . the board shall appoint committees of its members as needed, including a finance committee and a relief committee, and make necessary rules and regulations for its government in the discharge of its duties. It shall hear and decide applications for relief, pensions, and death benefits under this subpart. . . ”

(Emphasis supplied)

The Board’s primary duty is to administer the law in accordance with the legislature’s intent and since that intent was to provide this special plan only to those who are active firefighters the exclusion of those who have left such duties was authorized by § 2103.

The Board has not taken the position that these individuals have withdrawn from the plan with the corresponding forfeiture of credits as provided for in §§ 2103 and 2103.-2, but has simply resolved that these individuals’ rights in the plan are suspended until such time as they return to those duties which are rewarded by plan membership.

We note from the joint stipulation entered into between the parties that there is a wide variation among the individuals who were targeted by the Board as to the length of service, and we do not propose to make any suggestion as to what effect our judgment may have on benefits due those individuals. They are not parties to this suit, and in the event of disagreement as to the effect of this suspension on their rights, a resolution will be required on an individual case basis in accordance with § 2103 which provides that the Board shall hear and decide applications for relief pensions and death benefits on an individual basis with the right of judicial review recognized by the statute.

Our conclusion that the action taken by defendants was authorized by and in furtherance of the pension law, brings us to a consideration of the plaintiffs’ argument that the pension law itself is unconstitutional because it conflicts with the prerogatives of the Superintendent of the Fire Department and the Civil Service Commission of the City.

The action taken by defendants had no effect whatsoever on the Superintendent’s authority to assign and transfer personnel. Defendants’ action simply informs those who have been transferred from active firefighting that they will no longer accumulate benefits under the plan administered by defendants until and unless they return to active firefighting. Defendants have no interest whatsoever in what duties are undertaken by their members but they do have an interest and indeed an obligation to prevent those from accumulating additional benefits in a plan while they are not performing the hazardous duties of a firefighter when the plan is intended exclusively for such employees of the Fire Department. We can well appreciate plaintiffs’ concern that a firefighter who has an opportunity to take an assignment by the Superintendent to a position which may be more challenging, more intellectually satisfying and stimulating, more prestigious and involving greater responsibilities than that of an active firefighter, may hesitate to accept such an assignment in view of the adverse effect it has on his continuing to accumulate pension rights under the liberal pension plan of defendant. But we cannot say that such an individual would necessarily be deterred by this small loss for a temporary period, during which he will be performing a job which is perhaps more satisfying to him, and surely less hazardous. If indeed this does have an adverse effect on the superintendent’s management prerogatives, the problem addresses itself to the legislature for amendment of the pension law.

As to the Civil Service Commission, membership in the pension and relief fund is not a factor over which it has jurisdiction. Whatever classifications the Civil Service Commission makes, such as membership in the Fire Suppression Division, has no meaning whatsoever with respect to eligibility for membership in a pension plan which was adopted by the legislature for the benefit of a particular group of employees. Plaintiffs take the position that the actions taken by defendants interfere with the jurisdiction of the Civil Service Commission but it can more properly be said that if the Civil Service Commission were to make a paper classification of an individual as a firefighter when that individual is not actively engaged in the extinguishing of fires, for the purpose of making that individual eligible for membership in the pension plan this would constitute interference with the jurisdiction of the Pension Board.

Accordingly, the judgment appealed from is reversed and set aside and there is judgment in favor of defendants, dismissing plaintiffs’ suit at their cost.

REVERSED AND RENDERED.

APPENDIX

Guide lines for eligibility in Fire Fighter’s Pension System.—

1) It is hereby adopted as the official policy of this New Orleans Fire Fighter’s Pension and Relief Fund that the legislative definition — “The word ‘firefighters’ as designated in this Subpart is defined as any individual employed by the fire department of the city of New Orleans who is actively engaged in the extinguishing of fires.” — shall be henceforth applied to all members, on an individual basis according to the duties being performed by any member at a given time, within the guide lines herein adopted.
2) Members applying for eligibility who are not presently covered within the provisions of the system shall have their eligibility determined, according to individual duties, by a majority vote of the members of the Pension Board.
3) Members presently covered within the provisions of the system, whose individual duties may not qualify them for continued coverage, shall be screened by the Pension Board and their continued eligibility shall be determined by a majority vote of the members of the Pension Board.
4) Upon implementation of these guide lines, members presently covered under the provisions of the system, whose duties conflict with the legislative definition of eligibility, by reason of injury or illness are hereby granted a period of six months of continued coverage, pending a determination of the member’s expected length of incapacity to resume duties which conform with the eligibility definition. The Board may extend the periods of continued coverage, not to exceed increments of six months in any given case, if further medical evaluation is needed or if the member in question needs additional time for recuperative reasons.
5) Upon implementation of these guide lines, members presently covered under the provisions of the system, whose duties conflict with the legislative definition of eligibility, for no apparent reason of injury or illness, shall be granted a period of thirty days within which they must conform with the eligibility definition or forfeit the right to continue to accumulate benefits under the system.
6) The Pension Board hereby asserts their authority to have any member medically evaluated at any time to determine the prevailing condition of the member’s ability to conform with the legislative eligibility definition while being assigned to non-conforming duties.
7) To accommodate the emergency needs of the Fire Department, it is hereby provided that members in good health, who could otherwise perform duties which conform with the legislative definition of eligibility, shall be allowed continued coverage within the system while performing non-conforming duties for an accumulative period of time not to exceed thirty days within any calendar year.
8) Members voluntarily performing duties which do not meet the requirements of the eligibility definition or of these guide lines, shall be cautioned by the Pension Board that they are placing their right to continue to accumulate retirement benefits in jeopardy. If such member refuses to comply within ten days, he shall be given an additional ten days to comply at which time action shall be taken to interrupt his coverage in the system.
9) Members involuntarily performing duties which do not meet the requirements of the eligibility definition or of these guide lines, should be nevertheless cautioned by the Pension Board that their continued coverage is being jeopardized, and that they should take immediate steps to correct their situation. If such corrective steps are taken by the member or his representatives which leads, or could lead, to litigation, no loss of coverage shall be assessed against the member during his pursuit of a legal remedy.
10)The Pension Board reserves the right to pass judgment, on a case by case basis, regarding any situation which may develop that is not specifically covered by these guide lines.


text:
    BOARD OF TRUSTEES OF the FIRE FIGHTER’S PENSION AND RELIEF FUND FOR the CITY OF NEW ORLEANS and Donald P. Landry v. CITY OF NEW ORLEANS, Moon Landrieu, Mayor, et als.
    No. 9569.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 7, 1978.
    Writ Refused Jan. 26, 1979.
    C. Paul Barker, Dodd, Barker, Bou-dreaux, Lamy & Gardner, New Orleans, for plaintiffs-appellees.
    Jackson P. McNeely, Asst. City Atty., for defendants-appellants.
    Before STOULIG, BOUTALL and BEER, JJ.
   BOUTALL, Judge.

This appeal involves the interpretation of the duties and powers of the Board of Trustees of the Fire Fighter’s Pension and Relief Fund for the City of New Orleans relative to reinstatement of a fireman to active duty.

The facts are not at issue. Donald P. Landry was a fireman employed by the City of New Orleans who was injured as a result of an off-duty accident. After considerable medical treatment, he voluntarily applied to the Board of Trustees of the Fire Fighter’s Pension and Relief Fund for a “non-service connected disability pension” under L.R.S. 33:2113.1. The Board of Trustees on April 13, 1976, ordered him retired for disability and granted a disability pension of 40% of his salary. Some time later the Board learned that he had recuperated, and after considering medical reports requested by it, the Board, at a meeting on April 16, 1977, voted to rescind his disability retirement and return him to active duty with the department. The Superintendent of the New Orleans Fire Department, William J. McCrossen, refused him reinstatement to active duty. The only reason for the refusal was that he concluded that Landry, because of his prior injuries, would be a bad risk to return to the active duty list as more prone to re-injury, and the probability of workman’s benefits and greater disability rights would be an unreasonable financial burden on the City.

Shortly thereafter, Landry and the Board of Trustees brought a mandamus suit against the Superintendent, The City of New Orleans and other officials. The trial court ordered reinstatement, and this appeal followed. We affirm.

The Louisiana Legislature created the Fire Fighter’s Pension and Relief Fund for the City of New Orleans and provided for its government generally in L.R.S. 33:2101 et seq. Section 2113.1 provides for the retirement of members of the Fire Department for non-service connected disability, and in subsection C thereof provides that all provisions of R.S. 33:2113 with reference to restoration to duty of a member previously retired are likewise applicable to such members. Section 2113 provides in pertinent part:

“ * * * * The board of trustees may order periodic examinations of any member of the fire department who has been retired for disability under this section either by the department physician or by any other doctor or specialist, or both. If the board of trustees determines from such periodic examination that the member is qualified for active duty with the fire department, it may order the member to active duty in the same or similar grade and status occupied by the member at the time of his retirement for disability.” * * *

The Board of Trustees followed the proper procedure, and the plain meaning is apparent. The Superintendent contends however that while the Statute provides that the Board may order the member to active duty, it cannot order him to receive the member into active duty. Such an interpretation would not only render the enactment of that provision useless, but would result in placing the member in some sort of limbo wherein he would be discharged from the benefits of the disability pension, and yet be unable to return to work to earn his salary. The Superintendent relies upon Section 4-601 of the City Charter of the City of New Orleans which provides that the Superintendent shall organize, administer, supervise and discipline the fire force of the city. His reliance is misplaced, and the provisions of that section cannot prevail against the clear legislative mandate consistent with the authority granted in Article 10, § 29(B) of the Constitution of 1974. The legal authority to order return to active duty is placed in the Board of Trustees by the statute and the Superintendent (himself a member of the Board) must place him on active duty in obedience to the mandate of that legal authority. This duty does not become less mandatory or ministerial simply because the statute creating the duty may require to some extent construction of statutory language. See Groves v. Board of Trustees of Teachers’ Retirement System, 324 So.2d 587 (La.App. 1st Cir. 1975); Frame v. Yenni, 347 So.2d 309 (La.App. 4th Cir. 1977). The action of mandamus is proper to enforce the performance of that duty.

The only other issue is appellant’s overruled exception of failure to include indispensable party. Appellant contends that the City Civil Service Commission is granted the authority over all procedures for reinstatement and reemployment of persons who were separated from their positions for reasons other than for fault or delinquency. We respond simply that Landry had not resigned or terminated his employment and reemployment procedures do not apply. Landry had been retired for disability under L.R.S. 33:2113.1, and the procedure for his reinstatement to active duty is provided in Section 2113.

The judgment appealed is affirmed.

AFFIRMED.