author: GARRISON, Judge.

text:
    Lawrence SINGLETON et al. v. BUNGE CORPORATION et al.
    No. 9476.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 1978.

      Jesse S. Guillot, New Orleans, for plaintiffs-appellants.
    R. K. Christovich, Christovich & Kearney, New Orleans, for defendants-appellees.
    Before REDMANN, BOUTALL and GARRISON, JJ.
   GARRISON, Judge.

Warence and Susie Charles, appellants in this matter, were the plaintiffs in one of numerous suits filed against Bunge Corporation and its insurer for damages resulting from an explosion of Bunge’s grain elevator in St. Charles Parish. All suits were consolidated for trial, but prior to trial Bunge reached a settlement agreement with Michael Rodriguez, the attorney representing a number of subdivision residents, including the Charleses. However, the Charleses refused to accept the settlement. After all other matters in the litigation were concluded, Bunge filed a motion to enforce settlement agreement against the Charles-es. The motion was denied initially, on the basis that the contingent fee contract entered into between Mr. Rodriguez and the Charleses required written approval of any settlement agreement. However, on rehearing the trial judge reversed his ruling and granted Bunge’s motion, on the ground that the ’ contract had no force or effect with regard to the defendants because it had not been properly recorded. The trial court adopted as its judgment the settlement agreement reached between Bunge and attorney Rodriguez. Plaintiffs-appellants appeal from this ruling.

The affidavits and memoranda filed by the parties on the motion to enforce settlement offer conflicting stories. According to Bunge,

“For some time prior to trial, counsel for defendants and counsel for Warence and Susie Charles entered into detailed settlement negotiations resulting in settlement of all claims consolidated under the above captioned matter including full and final settlement of the claims of Warence and Susie Charles for a total of $21,683.50. On the day set for trial, and in open court, Mr. Rodriguez informed the court that a full and final settlement had been agreed upon between all parties. This fact was confirmed by counsel for defendants in open court. The remaining consolidated cases which had not been settled then proceeded to trial. * * *
“Regarding all other settlements, including the settlement agreed upon with Wa-rence and Susie Charles drafts, receipts and releases and a form of motion to dismiss were presented to Mr. Rodriguez. However, a draft in the amount of $21,-683.50 was refused by Warence and Susie Charles. At a meeting with the court in chambers, Mr. Rodriguez informed the court that Warence and Susie Charles had accepted the offer made prior to trial, and had authorized him to settle the case. However, once the remaining matters had gone to trial, said trial ending as a result of further agreements of settlement and compromise with other parties, Mr. and Mrs. Charles decided that they wanted more money, and are attempting to repudiate the settlement.”

Bunge contends that Mr. Rodriguez’s statement to the trial court regarding the settlement was a judicial confession of the settlement and, accordingly, that the Charleses cannot now refuse the compromise. There is, in addition, an affidavit from Mr. Rodriguez to the effect that he negotiated the settlement on behalf of the Charleses in his capacity as counsel of record, that the settlement offer of $21,683.50 was communicated to the Charleses and that they authorized him to accept that amount in full and final settlement. Further, he stated that on the date of trial, pursuant to his authority as counsel of record and pursuant to specific authorization of Warence and Susie Charles, he advised the court that full and final settlement had been agreed upon; and that subsequent thereto and on the same date, trial of other consolidated matters proceeded.

The Charleses filed an affidavit opposing that of Mr. Rodriguez denying that they had authorized him to accept the $21,683.50 in settlement. According to them, Mr. Rodriguez did not inform them of any settlement negotiations until the night before trial, when he called them and advised them “that he had settled their claim for $21,-683.50.” The affidavit alleges, further, as follows:

“That [Mrs. Charles] immediately informed Rodriguez that she and her husband had not granted any authority for the settlement at that figure and would not accept that amount; later that same night, Mr. Rodriguez came by the house with a bunch of papers which included settlement papers of other claimants, and again tried to persuade them to sign the settlement papers; that for the second time, they reiterated their disapproval of the negotiations that had been handled by Mr. Rodriguez and informed Mr. Rodriguez that they would be in Court the following morning although they were extremely disturbed that he had not notified them prior to this time of the date of trial; that on the following morning, they appeared and sat in the Court room for several hours; Mr. Rodriguez never appeared in Court on the morning of trial, while they were there; then after some time, the Judge announced from the bench that this matter had been settled and upon inquiring about this, they were informed that they should call Mr. Rodriguez; they immediately called Mr. Rodriguez from the Court house phone and wanted to know why he had not come to trial that morning; he again advised them that he had settled that claim and they again advised him that he was not instructed nor authorized to settle their claim and that after all, they had something to say about it; that they have no animosity towards Michael I. Rodriguez, but feel that his failure to discuss with them the amount of the settlement or his acceptance of a settlement without their authorization is not representation on their behalf; that subsequent to the trial date, Mr. Rodriguez again approached them, trying to convince them to sign the settlement papers, and they again advised him that they had not authorized the settlement for that amount, nor would they accept a settlement for that amount; that Warence Charles at the time of the accident was earning $3,200.00 per month from Delta Petroleum Company and Susie Charles was earning $900.00 per month from the Parish School Board; that their special damages and injuries received by them are not being compensated by the settlement of $21,683.50; that both affiants declared to me, Notary, that they did not authorize the settlement of their claim in the case of Warence & Susie Charles vs. Bunge Corporation, et al.

The Charleses contend that Rodriguez had no authority to settle the claim without their written consent, because they had signed a contingent fee with him which read, in accordance with R.S. 37:218, as follows:

“No party to this agreement shall have the right to release, settle, transact, compromise or discontinue any demand, claim, suit or action commenced pursuant to this agreement, without the written consent of each party hereto.”

The Charleses claim that this provision in their contract with Rodriguez and his law firm vitiated any settlement agreement he made without their written consent.

However, R.S. 37:218, at the time relevant hereto, required that in order for the “written consent” requirement to be effective against a third party, the contingent fee contract had to be filed with the clerk of the district court in which the suit was pending and a copy served on the opposing party. Defendant-appellee Bunge filed into the record an affidavit of the clerk of the trial court that no such contingency agreement between Warence and Susie Charles and Michael Rodriguez was on record. In order to be enforceable, a contingent fee contract must be in full compliance with the provisions of R.S. 37:218. Succession of Vlaho, 140 So.2d 226 (La.App.4th Cir. 1962). Thus, failure to file the contract with the clerk of court means that while the contract will be the law between the parties, it will have no effect against third parties. Guilbeau v. Fireman’s Fund Insurance Co., 293 So.2d 216 (La.App.3rd Cir. 1974).

Generally, to be enforceable a contract of compromise must be in writing. C.C. Art. 3071, Lytle v. Commercial Ins. Co. of Newark, N.J., 285 So.2d 289 (La.App.3rd Cir. 1973). Moreover, the requirement of a written offer of compromise necessarily implies a written acceptance in order to make a compromise enforceable. See Dunham Concrete Products, Inc. v. Donnell Construction Co., 268 So.2d 104 (La.App.1st Cir. 1972). Thus, the fact that defendant Bunge presented plaintiff’s counsel Rodriguez with the written draft, receipt and release, and motion to dismiss did not alone complete the contract of compromise, since plaintiffs refused to sign these documents. Lytle v. Commercial Ins. Co. of Newark, N.J., supra.

Ordinarily, a party’s counsel of record is assumed to be authorized by his client to engage in settlement negotiations, but he does not have authority to settle his client’s claim without his client’s “clear and express consent.” Van Vleet Mansfield Drug Co. v. Anders, 157 So. 166 (La.App.2d Cir. 1934); Phillips-Jones Corp. v. Caskey, 13 La.App. 675, 127 So. 46 (2d Cir. 1930), reh. den., 14 La.App. 26, 128 So. 553 (1930); Phelps v. Preston, 9 La.Ann. 488 (1854)/ Nor, generally, can an attorney sign a binding settlement agreement on behalf of his client without a written authorization from the client. However, because a client speaks through his attorney in court, any statement made by the attorney is held to be an admission by the client. Under the provisions of C.C. Art. 2291, a judicial confession is full proof against the party making it. Thus, it would appear that the statement by Mr. Rodriguez, as the Charles-es “special attorney in fact,” in open court that Warence and Susie Charles had agreed to settle the case for $21,683.50 is binding against them, since Bunge apparently did not learn until after trial that the Charleses refused to accept the settlement. See Nunez v. Ricks, 262 So.2d 585 (La.App.3rd Cir. 1972), writ den., 262 La. 1091, 266 So.2d 221; Morrow v. American Bank and Trust Co., 397 F.Supp. 803 (M.D.La.1975).

It is apparent from the conflict between the affidavits of Mr. Rodriguez and the Charleses that either the attorney or his clients are incorrect about the sequence of events. Rodriguez alleges that they authorized him to accept the settlement, and only refused it after trial. The Charleses allege that he did not inform them of the settlement negotiations or of the trial date until the night before trial and that he made the settlement against their express refusal. This conflict, however would have to be resolved in a separate action by the Charles-es against Mr. Rodriguez.

Thus, the failure to record the contingent fee contract, together with Mr. Rodriguez’s judicial confession of compromise on behalf of the Charleses as their attorney of record, preclude the Charleses from contesting the settlement agreement. Accordingly, we find no fault with the judgment of the trial court, adopting as its conclusion the settlement in the amount of $21,683.50 to be paid to Warence and Susie Charles by Bunge Corporation and the Fidelity and Casualty Company of New York.

The judgment of the trial court, as indicated, is therefore affirmed in favor of the appellees.

AFFIRMED.

      . See acts 1970, No. 595, § 1 for this version of R.S. 37:218. The most recent amendment, by acts 1975, No. 670, § 1 has dispensed with the requirement of service. Under the provisions of R.S. 37:218, once a contingent fee covenant has been recorded, any subsequent attempt by one party to compromise the claim without the written consent of the other party to the covenant automatically nullifies the attempted compromise, since third parties are put on notice by the filing of the covenant.

      . The judicial confession is the declaration which the party, or his special attorney in fact, makes in a judicial proceeding.
      It amounts to full proof against him who has made it.
      It cannot be divided against him.
      It cannot be revoked, unless it be proved to have been made through an error in fact.
      It cannot be revoked on a pretense of an error in law.
      La. C.C. Art. 2291.


source: Caselaw Access Project

author:
GULOTTA, Judge.
      BEER, Judge,

license: Public Domain

text:
    Patricia Ann ROUNDTREE, widow of Elmo C. Burmaster, Jr. v. TECHNICAL WELDING AND FABRICATION COMPANY, INC. and Ed Ehrmann and Hunt-Wesson Foods, Inc.
    No. 9491.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 1978.
    Rehearing Denied Dec. 15, 1978.

      A. Remy Fransen, Jr., Robert J. Neal, New Orleans, for plaintiff-appellee.
    Leach, Paysse & Baldwin, Michael A. Britt, New Orleans, for intervenor-appellee.
    James J. Morse, Jr., New Orleans, for defendants-appellants.
    Before SAMUEL, GULOTTA and BEER, JJ.
   GULOTTA, Judge.

In this wrongful death action, defendants appeal from a $668,157.32 trial judge award in favor of a childless surviving spouse of a thirty year old workman who died from injuries sustained on July 27, 1974, in a thirty foot fall from an oil storage tank. Plaintiff has not answered the appeal.

Plaintiff’s claim against decedent’s employer, Technical Welding and Fabrication Company, Inc., and its chief executive officer, Ed Ehrmann, is based on the failure to provide a safe place to work, proper supervision and proper safety devices. Judgment was rendered against the employer’s liability insurer and the executive officer.

On appeal, defendants contend plaintiff’s recovery is barred by decedent’s contributory negligence and/or assumption of risk.

Alternatively, defendants claim the award is excessive. We amend and affirm.

LIABILITY

Decedent, Elmo C. Burmaster, Jr., was a member of a crew demolishing a metal oil storage tank approximately thirty feet in height and seventy-eight feet in diameter. The tank was constructed of 3/i6" sheet steel plates measuring four to five feet in width and either ten or twenty feet in length which were riveted onto a “super-structure”, a framework of beams. See photographs (Appendices I and II). These supportive beams in the roof area radiate from the center of the tank in a spoke-like fashion. All of the roof plates were supported by pieces of superstructure with the exception of two “critical” plates which were not firmly supported.

Burmaster was usually employed as a “ground man” who smoothed the jagged edges of the plate after they had been lowered to the ground. On the day of the accident, however, he was working on the roof and cutting plates with a fellow worker. As he walked toward his co-worker, Burmaster stepped on one of the “critical” sheets which gave way causing him to fall through the roof to the bottom of the tank, thirty feet below.

In support of their contention that decedent was contributorily negligent or assumed the risk, defendants point out that though unsafe conditions existed on the job site, Burmaster knew that certain parts of the roof were unsafe and chose to work under these conditions; and that his failure to work cautiously constitutes contributory negligence which was the proximate cause of his fall. We reject these contentions.

It is undisputed that no safety nets or belts were used on the job in accordance with federal safety requirements. Though Ehrmann testified, in deposition, that he had warned Burmaster at lunch on the day of the accident that the critical sheet was “coming up”, Michael Darbonne, decedent’s co-worker on the roof, testified that Ehr-mann had not given him (Darbonne) any warning that the two plates were not supported. He indicated further that “nobody knew” of the unsupported plates. Assuming that Ehrmann did give oral warning of the critical plates, it is undisputed that they were not identified or marked in any manner to distinguish them from the other plates on the roof.

E. J. Scardino, Jr., a Safety Engineer, testified that giving a warning without marking the hazardous plate was “ludicrous”. Scardino stated there was no evidence of any type of a good safety program and the accident could have been prevented by clearly identifying the hazard, removing it, or putting bracing underneath it.

The evidence on liability is somewhat meager. Although no written reasons relating to liability were assigned, it is clear the trial judge believed the executive officer did not warn the decedent or his coworker of the dangerous unsupported plates. Although a conflict existed on this factual question, (between Darbonne and Ehrmann) it is reasonable to conclude that the trial judge resolved the conflict in favor of plaintiff. We cannot say the trial judge, in this respect, erred.

In Chaney v. Brupbaeher, 242 So.2d 627 (La.App. 4th Cir. 1970), we held that an employer and its supervisory personnel have the obligation to provide workmen with a reasonably safe working place. We stated in Chaney:

“[I]n our opinion a workman’s superior cannot create or permit danger and send the workman into it with a warning and escape liability on a theory that the workman was contributorily negligent merely by going into the danger. The workman’s only other alternatives are to try to tell his superior how to run the job, or to quit.”

In the instant case, the decedent was performing his duties on the top of the tank without safeguards and without warning of the dangerous unsupported metal plates. Under the circumstances we find no error in the apparent conclusion reached by the trial judge that Burmaster was not guilty of contributory negligence or assumption of risk.

QUANTUM

Under LSA C.C. art. 2315, in a suit resulting from the death of a tort victim, two claims exist. The first is the “survival” action for the damages sustained by the tort victim. These damages, for which the tort victim could have recovered had he lived, is brought by his “survivor”, i. e. his spouse or other persons named in LSA C.C. art. 2315. The second is the “wrongful death” action for damages to the survivor for the loss resulting from the victim’s death. See Callais v. Allstate Insurance Company, 334 So.2d 692 (La.1976), on rehearing; King v. Cancienne, 316 So.2d 366 (La.1975); Wakefield v. Government Employees Insurance Company, 253 So.2d 667 (La.App. 4th Cir. 1971), writ denied, 260 La. 286, 255 So.2d 771 (1972). The survival action includes recovery for pain and suffering, loss of earnings, and other damages sustained by the victim up to date of death. King v. Cancienne, supra; Payne v. Georgetown Lumber Company, 117 La. 983, 42 So. 475 (1906); Dark v. Brinkman, 136 So.2d 463 (La.App. 3d Cir. 1962). The wrongful death action includes damages to the survivor for loss of love and affection, loss of services, and loss of support. Ayala v. Bailey Electric Company, Inc., 318 So.2d 645 (La.App. 4th Cir. 1975); Howard v. Hardware Mutual Casualty Company, 253 So.2d 555 (La.App. 1st Cir. 1971), writ denied, 260 La. 19, 254 So.2d 620 (1971). The loss in the wrongful death action includes loss of support from the date of death to the date of trial and loss of future support from the date of trial. Wakefield v. Government Employees Insurance Company, supra.

The damage award to plaintiff by the trial judge consisted of the following amounts:

$125,000.00 - decedent’s pain and suffering
39,285.00 - past loss of income
75,000.00 - plaintiff’s loss of love and affection
40,000.00 - plaintiff’s loss of services
368,212.00 - plaintiff’s loss of support and future income
19,660.32 - stipulated medical expenses
1.000.00 - funeral expenses
$668,157.32 -TOTAL

Though defendants do not dispute the medical and funeral expenses, they argue that the other aspects of the award constitute an abuse of the trial court’s discretion. We agree, and reduce the award to $269,779.32 (including the undisputed medical and funeral expenses).

Survival Action — Decedent's Pain and Suffering

The medical evidence is essentially undisputed. Immediately after the July 27, 1974 fall, Burmaster was taken to the Emergency Room of West Jefferson Hospital. He was seen at the hospital by Dr. Jack L. Winters, an orthopedic surgeon, who determined that he had sustained a fracture dislocation of the main joint of his left foot with laceration of the skin, multiple open tarsal fractures of the left foot, comminuted closed fractures of the right leg between the knee and the ankle, a closed fracture of the right ankle, a closed comminuted fracture of the right wrist and forearm, dislocation and disruption of the right distal radial ulna joint, a comminuted fracture of the fourth lumbar vertebrae involving the spinal cord, traumatic shock and a cerebral concussion. It was also ascertained that Burmaster had abdominal internal injuries and rupture of the joints on the left side of the breast bone. Casts were placed on both lower extremities and the fractures were aligned as well as possible. Dr. Winters described Burmaster’s pain as “marked and severe”.

Burmaster remained in Intensive Care until August 2, 1974. On August 13th the casts were changed and an attempt was made, without success, to set the leg fracture. The right wrist and forearm were also set.

Dr. Carl F. Culicchia, a neuro-surgeon, testified that the compression fracture of the lumbar vertebrae had lacerated and contused the nerves of the spinal canal. On August 16, Burmaster underwent a lami-nectomy and spinal fusion. Dr. Culicchia noted that the spinal injury was such that Burmaster, though partially paralyzed, could still feel pain. This physician described decedent’s injuries as “extensive and painful” and stated that it was necessary to give him intravenous pain suppressants. Following surgery Burmaster experienced paralysis of the lower extremities.

On September 6, 1974, while under anesthesia for another operation, Burmaster underwent cardiac arrest due to a pulmonary embolism (a blood clot lodging in the lung) and was given cardiac massage. He regained consciousness, and according to Dr. Winters was aware of how seriously ill he was at that time. While Burmaster was still in the recovery room of the intensive care unit, he suffered another cardiac arrest and died on the operating table. Dr. Bert A. Glass, the attending surgeon, was of the opinion that Burmaster had suffered a laceration of the liver in the accident which healed during bed rest but was reopened during cardiac massage.

In addition to their testimony regarding the severity of Burmaster’s pain, Drs. Winters and Culicchia stated the decedent was conscious of the gravity of his condition and aware of his disability potential. Plaintiff testified that her husband, during his hospitalization, constantly complained of pain which he characterized as “hell on earth”. She further stated that Burmaster worried whether or not he would live, walk again, or father children. Mrs. Burmaster further stated that decedent talked of dreams and premonitions of his death.

Considering the severity of Burmaster’s multiple injuries and the pain and anxiety he suffered during his forty-one days of hospitalization from the accident until his death, we cannot say the trial judge abused his discretion in awarding $125,000 for decedent’s “conscious intense pain and suffering, emotional distress, abject fear of death and/or permanent paralysis.”

Survival Action — Loss of Wages

At the time of his accident decedent was working as a welder burner at the rate of $5.00 per hour. He had been employed by Technical Welding for only six weeks prior to his fall and received an average gross weekly pay of $242.50 which was projected to an annual pay of $12,610.00.

The trial judge awarded loss of past income in the amount of $39,285 (from the date of the accident on July 27, 1974 to the date of trial on September 7, 1977). This figure was based on the testimony of Sidney A. LeBlanc, an actuary who used the $12,610/year gross income amount in his calculation.

In a survival action the survivor is entitled to an award for past loss of income, from date of the tort to date of death. King v. Cancienne, supra; Payne v. Georgetown Lumber Company, supra; Dark v. Brinkman, supra. In our case, that period is six weeks. (July 27, 1974 to September 6, 1974). The trial judge erred in computing loss of past wages from the date of the accident to the date of the trial (approximately three years). Accordingly, we reduce the award for loss of past wages to the sum of $1,455.00, based on the average weekly wage of $242.50.

Wrongful Death — Loss of Love and Affection

Plaintiff and decedent had been married at the time of decedent’s death for approximately two years. Mrs. Burmaster testified that they enjoyed a close relationship and shared ideas, thoughts and activities. Though they had no children she stated they had plans for a family when they achieved a greater measure of financial security. Plaintiff testified that the loss of her husband had a tremendous effect on her and left “a big void” in her life.

Though we recognize the Burmasters’ enjoyed a warm relationship during their brief marriage, we see no unique aspect to their union which supports a $75,000 loss of love and affection award. A marriage of much longer duration may warrant such an award, however this amount, considering the relative brevity of the marriage, is excessive and an abuse of the much discretion rule. Consistent with Coco v, Winston Industries, Inc., 341 So.2d 332 (La.1977), we deem a proper award for loss of love and affection to be the sum of $20,000.00.

Wrongful Death — Loss of Personal Services

With regard to services performed by her husband, plaintiff testified that Bur-master did his own auto repairs, yard work around their rented apartment, and installed their washer, dryer and ice maker. She also stated that they collected driftwood from which her husband made furniture.

The services testified to by Mrs. Burmas-ter are those that any husband, to a lesser or greater degree, would perform and are not compensable items of recovery for loss of services in a wrongful death action.

In this connection we distinguish Ayala v. Bailey Electric Co., Inc., 318 So.2d 645 (La.App. 4th Cir. 1975). In Ayala, the deceased husband’s sole income was derived from rental properties which he maintained. Following his death, his wife was required to obtain help to manage and maintain the property. Furthermore, in Ayala a value was placed by a real estate expert on the husband’s lost services. Unlike the decedent in Ayala, Burmaster merely performed routine chores and engaged in a hobby of furniture making. Furthermore, no proof of the value of these services was presented. Under these circumstances, we conclude plaintiff has failed to establish entitlement to this part of the award.

Wrongful Death — Loss of Support

Loss of future support was awarded to Mrs. Burmaster in the amount of $368,-212.00 and was based on calculations made by Melville Z. Wolfson, an actuary who used the annual salary figure of $12,610; a work life expectancy of 29.2 years, (decedent was thirty years of age at the time of the accident); a 6% discount factor; and a combined inflation/productivity factor of 6% (3V2% inflation and 2V2% productivity, i. e. anticipated increase in salary).

Defendants contend the trial judge erred in using an improper wage base of $12,610 per year instead of a $5,000 per year figure as reflected in Burmaster’s 1972, 1973 and 1974 joint tax returns, and also, in failing to deduct consumption factors and income taxes. According to defendants, based on the testimony of Doctor Wolfson, Burmaster would have used from thirty to fifty percent of his pay for personal needs (consumption factor) and his gross income would have been subject to an eighteen percent deduction for taxes, making the actual amount available to support his wife considerably less than his gross pay at Technical.

We recognize a well-settled rule that future loss of earnings cannot be calculated with absolute, mathematical certainty and that damages for future loss are, to a certain extent, speculative in character. Robinson v. Graves, 343 So.2d 147 (La.1977); Viator v. Gilbert, 253 La. 81, 216 So.2d 821 (1968). We recognize, also, that the trial judge in determining the measure of damages for loss of future support must consider a number of factors including the employee’s work record, the amount of his earnings in previous years, and the probability or improbability that he would have been capable of earning comparable or similar amounts for a number of years during his work life expectancy. Viator v. Gilbert, supra; Edwards v. Sims, 294 So.2d 611 (La.App. 4th Cir. 1974).

Significantly, Burmaster’s employment record prior to his job at Technical Welding had not been steady. A joint tax return for 1972, during which time both plaintiff and decedent were employed, shows income from wages in the sum of $7,192.00. The couple’s 1973 joint return, with both employed, shows income of $8,917. The 1974 joint return shows income of $8,158 of which Burmaster had earned $3,860 at two occupations (including welding at Technical) until his accident in July.' Mrs. Bur-master had earned the remainder of the income in a hospital job. During this three year period Burmaster had been employed part-time as a night watchman and held jobs in an electronics firm for three months, and as a welder for two building firms before his job at Technical Welding.

When we consider Burmaster’s spotty work record in the years prior to his accident, his gross income as reflected in his tax returns, and the short period of time (six weeks) that he had worked for Technical Welding, we are led to conclude the trial judge erred in accepting, for the purpose of determining future loss of support, an annual gross income of $12,610.00. A more realistic base, considering Burmaster’s history of earnings, is $5,200 per year upon which Sidney LeBlanc, an actuary, based his calculation, under cross examination, for loss of future support.

Closely akin to our factual situation is Viator v. Gilbert, supra, a case involving a plaintiff with a sporadic work record characterized by frequent job changes and periods of unemployment. In rejecting plaintiff’s argument that the relatively high wages he received as a truck driver during a three month job shortly before the accident should be the basis for calculating his loss of future wages, the court stated:

“[W]e do not believe that this three or four month employment controls. On the contrary, the whole work record should be scrutinized, as it is the totality of the circumstances which must be the ultimate criterion in the assessment of the damages for loss of future earnings. While we sympathize with plaintiff because of his unfortunate physical condition, we think it clear from the evidence that he has failed to establish with any degree of certainty a record of prior regular employment and earnings, from which can be deduced that he was able, before the accident in this case, to earn wages as a manual laborer consistently for any substantial work period.”

We further conclude the 2V2% productivity factor relied on by the trial judge based on anticipated increases in salary is not applicable to Burmaster’s situation. Though it is true LeBlanc testified that productivity per man hour increases about 2V2% per year, proof was lacking to show this factor would have an effect on Burmas-ter’s particular case. The only testimony regarding the decedent’s possibility of wage increase was Mrs. Burmaster’s statement that she believed Ehrmann was considering her husband for a promotion to a supervisory position sometime in the future. No evidence from the employer or a supervisor was offered to indicate that decedent was being considered for promotion or higher pay. Without this evidence and mindful of decedent’s spotty work record, we cannot conclude decedent’s future pay would include increase based on productivity.

We distinguish Robinson v. Graves, supra. In Robinson plaintiff was employed at a salary of $400 per month plus overtime at the time of her accident. Post injury, plaintiff was promoted to a $500.00 per month position and then became disabled. At the time of trial her employer testified that the position for which she was training paid $800.00 per month and had plaintiff continued to work she probably would have been earning this increased salary. The Supreme Court in Robinson held that the $700.00 base salary figure used by the trial judge in awarding loss of future income was within a proper range of discretion. Unlike the employee in Robinson, however, decedent, in our case, had a history of job changes and had only worked for Technical Welding for a six week period. Sufficient proof of probability of salary increase is simply lacking in our record. Accordingly, we do not include increased productivity in computing entitlement for loss of future support. However, we recognize that an inflation factor may be included when computing this loss. See Blanchard v. Rodrigue, 340 So.2d 1001 (La.App. 1st Cir. 1976), writ denied, 341 So.2d 1129 (La.1977).

Defendants argue that in a wrongful death case, personal living expenses of the deceased should be deducted from any award for loss of future support. We agree. Although we have failed to find jurisprudential support for this deduction in a Civil Code 2315 wrongful death case, reasonableness requires a reduction in the loss of future support awards for those personal living expenses.

In Jones v. Kansas City Southern Ry. Co., 143 La. 307, 78 So. 568 (1918), on rehearing, the Louisiana Supreme Court, when considering future support benefits under a Federal Employers’ Liability Act, concluded that the amount of future support benefits is the difference between that which the decedent would have earned and the amount he would have spent upon himself had he lived the normal life expectancy.

The Jones court computed this amount at twenty-eight and one-half percent and deducted the award to that extent. We recognize that the Federal Act in the Jones case, (as interpreted by the Louisiana Supreme Court) provided for this deduction. Nevertheless, the deduction was recognized and applied.

Further, in Blanchard v. Rodrigue, supra, the decedent’s “personal expenses” was included in a list of factors to be weighed in determining the amount due for loss of support. The Rodrigue case involved a wrongful death action arising out of an automobile accident. See also, Aubert v. Charity Hospital of Louisiana, et al., 363 So.2d 1223 (La.App. 4th Cir. 1978), where reference is made to decedent’s personal expenditures when computing loss of future support. Under Maritime Law, reductions attributable to personal expenses have been made when computing loss of earnings. See Law v. Sea Drilling Corp., 510 F.2d 242 (5th Cir. 1975); Higginbotham v. Mobil Oil Corporation, 360 F.Supp. 1140 (U.S.D.C. W.D., La.1973). In the cited Federal cases, involving the deaths of offshore workers, a fifteen percent deduction was allowed.

Accordingly, we conclude that among the factors to be considered when computing loss of future support in a wrongful death case, is a deduction for the decedent’s personal living expenses. (Consumption factors). Evidence in our case indicates that Burmaster lived a frugal life with little self indulgence. Under the circumstances, we find that a twenty percent deduction is reasonable.

We reject the contention that an eighteen percent deduction for future income tax should be taken from decedent’s future wages when calculating plaintiff’s loss of support. In this connection, Doctor Wolf son testified that it is difficult to project, with any certainty, what the tax rate will be 29.2 years into the future. Though the court in Edwards v. Sims, supra, in dicta, stated that net income after taxes is the appropriate base upon which to calculate loss of future income, this court in Morgan v. Liberty Mutual Insurance Company, 323 So.2d 855 (La.App. 4th Cir. 1975), stated that courts have the option of using gross income in awarding loss of future wages. See also, Reeves v. Louisiana and Arkansas Railroad Co., 304 So.2d 370 (1st Cir. 1974), writ denied, 305 So.2d 123 (La.1974). The trial judge in our case used gross income in awarding loss of future support. We cannot say (based on Morgan, Reeves and Blanchard) he erred.

Accordingly, based on a $5,200.00 annual income, discounted at six percent and taking into account three and one-half percent inflation factor, and a work life expectancy of 29.5 years, LeBlanc calculated plaintiff’s loss of future support at $108,830.00. Accepting this amount and allowing for a twenty percent personal living expense deduction, we compute plaintiff’s loss of future support at $87,064.00.

This award for future support does not include the loss of support to plaintiff between the date of Burmaster’s death and the time of trial, a period of three years. Using the same method for calculating loss of past wages employed by the experts, i. e., simple multiplication of the annual wage by the number of years without allowing for discount or inflation (relevant to an award for future support loss) we compute this amount at $15,600.00.

Based on the foregoing, we conclude plaintiff is entitled to an award in the following amount:

$125,000.00 - decedent’s pain and suffering
1,455.00 - loss of past wages
20,000.00 - loss of love and affection
87,064.00 - loss of future support
15,600.00 - loss of support from date of death to date of trial
19,660.32 - medical expenses
1.000.00 - funeral expenses
$269,779.32-TOTAL

Accordingly, the judgment in favor of plaintiff, .in the sum of $668,157.32 is amended and reduced to the sum of $269,-779.32. As amended, the judgment is affirmed.

AMENDED AND AFFIRMED.

BEER, J., concurring in part and dissenting in part.

Appendix to follow.

APPENDIX I

APPENDIX II

BEER, Judge,

concurring in part and dissenting in part.

I concur in the majority’s opinion in all respects except that portion of the opinion dealing with an award for decedent’s pain and suffering in the amount of $125,000.

I conclude that the trial court’s award of this amount for decedent’s pain and suffering is a breach of discretion and, accordingly, respectfully dissent from the affirmation of that award. I specifically acknowledge that such dissent will not result in the applicability of La.Const.1974, Art. 5, Sec. 8(B) since this specific portion of the trial court award is affirmed by the action of the majority.

      . Because this accident occurred prior to the enactment of the exclusive Workmen’s Compensation remedy (against an employer) as set forth in Act 147 of 1976 and incorporated in R.S. 23:1032, the exclusive remedy question is not in issue.

      . Hunt-Wesson Foods, Inc., Dixie Oil of Tennessee, and Coastal Fuels, Inc. also named as defendants were dismissed prior to trial.

      . A citation issued by the Occupational Health Administration (OSHA), made part of the record, alleges that Technical Welding violated federal regulations by failing to “require wearing of appropriate personal protective equipment where there was exposure to hazardous conditions or where the need for using such equipment to reduce the hazards to employees was indicated.”

      . Judgment was further rendered in favor of intervenor, the Travelers Insurance Company for $31,190.32 (representing medical and funeral expenses and workmen’s compensation benefits) to be paid by preference from plaintiff’s award. This aspect of the judgment is not contested on appeal.

      . The Supreme Court stated, in the opinion: “He was earning $2,100 a year, and, from the evidence of his good habits, we have concluded that $600 a year is a fair allowance to be made for what he would have spent for his own maintenance.”

      . For a discussion of deductions for living expenses and costs of a decedent’s maintenance, see 22 Am.Jur.2d, Death § 153; 25A C.J.S. Death § 114; Speiser, Recovery For Wrongful Death (2d ed., 1971), Vol. 1, § 3:6 at 140. See, also, Louisville & N. R. Co. v. Garnett, 129 Miss. 795, 93 So. 241 (1922).

      . LeBlanc arrived at this amount by using earnings in the amount of $100 per week or $5,200.00 per year (more accurately representative of Burmaster’s history of earnings than $242.50 per week or $12,610 per year). By comparison, Melville Wolfson calculated loss of future support based on a 29.2 year work life expectancy with a 5% discount rate and 3% increase in the amount of $107,410.00.

      . When deducting twenty percent from $108,-830.00, the balance amounts to $87,064.00.

      . $5,200.00 per year for a three year period (date of death, September 6, 1974 to date of trial, September 7, 1977).


text:
    Luke L. BOYER et al. v. John O. ST. AMANT, Sheriff, Parish of St. Charles.
    No. 9533.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 1978.
    Writ Refused Dec. 8, 1978.
    Garland R. Rolling, Metairie, for plaintiffs-appellants.
    Steven F. Griffith, Sr., Destrehan, for defendant-appellee.
    Before REDMANN, BOUTALL, and GARRISON, JJ.
   GARRISON, Judge.

This suit arose out of plaintiff’s alleged wrongful discharge from his employment as a deputy sheriff in St. Charles Parish. Plaintiff filed suit on June 29, 1977 against John O. St. Amant, Sheriff of St. Charles Parish, for wrongful discharge in violation of R.S. 23:961. The petition alleged that plaintiff’s employment had been terminated solely because of his failure to support Sheriff St. Amant’s candidacy for election.

After lengthy pretrial litigation, which has no relevance here, defendant filed exceptions of no cause and no right of action. These exceptions were maintained by the trial court, and plaintiff’s suit was thereby dismissed. Plaintiff has lodged this appeal to challenge this dismissal.

The primary question presented here is whether or not plaintiff’s petition states a cause of action for which relief may be granted. In order to grant an exception of no cause of action, all allegations contained in plaintiff’s petition must be considered as true, and accepting them as true, the petition must fail to state a cause of action C.C.P. Art. 931: Lewis v. Kehoe Academy, 346 So.2d 289 (La.App. 4th Cir. 1977). Thus, we must look carefully at the allegations made here.

According to plaintiff, the facts were as follows: Plaintiff was originally hired as a deputy sheriff for St. Charles Parish in 1970 by defendant, John St. Amant, who was then sheriff of St. Charles Parish. Defendant was defeated for reelection in 1971, but plaintiff continued to work as a deputy sheriff for the sheriff, Julius Sellers. In 1975, defendant St. Amant once again ran for sheriff and was elected, defeating Albert Laque, whom plaintiff had supported. In February 1976, plaintiff was notified by letter from defendant, that:

“[e]ffective immediately upon the date that I assume my elected position as Sheriff of St. Charles Parish, your services with the Sheriff’s Department will be terminated.” Letter from John 0. St. Amant, Record, p. 5.

These factual allegations are not disputed by defendant, however defendant does not admit to the additional contention of plaintiff as to the main reason he was fired. Plaintiff contends that defendant’s action terminating his employment was part of a systematic political purge of all those who failed to support his candidacy. Thus, plaintiff alleges that he was fired solely for his political activities and affiliations, in violation of R.S. 23:961, which provides:

“Except as otherwise provided in R.S. 23:962, no employer having regularly in his employ twenty or more employees shall make, adopt, or enforce any rule, regulation, or policy forbidding or preventing any of his employees from engaging or participating in politics, or from becoming a candidate for public office. No such employer shall adopt or enforce any rule, regulation, or policy which will control, direct, or tend to control or direct the political activities or affiliations of his employees, nor coerce or influence, or attempt to coerce or influence any of his employees by means of threats of discharge or of loss of employment in case such employees should support or become affiliated with any particular political faction or organization, or participate in political activities of any nature or character.
Any individual person violating the provisions of this Section shall be fined not less than one hundred dollars nor more than one thousand dollars, or imprisoned for not more than six months, or both; and any firm, corporation or association violating the provisions of this Section shall be fined not less than five hundred dollars nor more than two thousand dollars.
Nothing herein contained shall in any way be construed to prevent the injured employee from recovering damages from the employer as a result of suffering caused by the employer’s violations of this Section.”

Inasmuch as R.S. 23:961 specifically regulates employer and employees, it is necessary to examine the relationships between a sheriff and his deputies, and determine whether an employer/employee relationship exists.

The trial judge, in his written reasons for judgment maintaining the exceptions, found that a sheriff is not the employer of a deputy sheriff. He thus concluded that the provisions of R.S. 23:961 Were not applicable. We concur.

Article 5, Section 27 of the 1974 Constitution creates the position of sheriff to be elected for a four year term in each parish. R.S. 33:1433(A) authorizes each sheriff to “appoint as many deputies as necessary, but not more than authorized by law.” A deputy sheriff possesses “all of the powers and authority granted by law to the sheriff, and may perform any of the duties and exercise any of the functions of the sheriff.” C.C.P. Art. 331. A deputy, as well as a sheriff, is a “public officer within the definition of R.S. 42:1, and consequently with regard to power and authority to enforce the law, there is no difference between them. Thus, the State may be considered the deputy’s employer. Foster v. Hampton, 352 So.2d 197 (La.1977). See also State v. Mayeux, 228 La. 6, 81 So.2d 426 (1955).

As an appointed public officer, a deputy sheriff has no statutorily prescribed term of office, but merely serves at the pleasure of the sheriff. Potts v. Morehouse Parish School Board, 177 La. 1103, 150 So. 290 (1933). It has long been established that

“As used in this title, the term “public office” means any state, district, parish or municipal office, elective or appointive, or any position as member on a board or commission, elective or appointive, when the office or position is established by the constitution or laws of this state.
“Public officer” is any person holding a public office in this state.” R.S. 42:1.
“. . . where the term of the office is not fixed by law, the power to remove is an incident to the power to appoint.” Garnier v. Louisiana Milk Commission, 200 La. 594, 8 So.2d 611, 614 (1942).

Similarly, there are numerous authorities to the effect that appointment to a public office is not a contract, and consequently there is no vested right created by an appointment. Hall v. City of Shreveport, 157 La. 589, 102 So. 680 (1925), and cases cited therein. The term, if it may be designated as such, of a deputy is tied to that of the sheriff, and even if the sheriff is reelected, deputies must be reappointed and recommissioned at the beginning of each new term. Liberty Mutual Insurance Co. v. Grant Parish, 350 So.2d 236 (3rd Cir. 1977), writ refused Nov. 23, 1977; Kyles v. Calcasieu Parish Sheriff’s Department, 395 F.Supp. 1307, (W.D.La.1975).

Appellant argues that regardless of how one characterizes the relationship between a sheriff and his deputies, whether as employer-employee or otherwise, a deputy’s employment is dependent upon the sheriff, and therefore there exists the opportunity for the abuses which R.S. 23:961 prohibits. Thus, appellant urges that sheriffs should be subject to the provisions of that statute. That the abuses discussed in R.S. 23:961 may exist in the appointment of, or failure to reappoint, deputy sheriffs, however, does not necessarily dictate that such conduct is wrong or prohibited.

A federal case, Kyles v. Calcasieu Parish Sheriff’s Department, 395 F.Supp. 1307 (W.D.La.1975), appears to be the most relevant jurisprudence on this point. In that case, plaintiff, a former deputy, filed suit against the Calcasieu Parish Sheriff’s Department, for alleged discrimination in employment, in violation of 42 U.S.C. § 1981 and the Fourteenth Amendment. Although not precisely the same, the complaint is similar to the one presented here.

The court in Kyles spent a great deal of time defining the relationship between a sheriff and his deputies, and firmly concluded that a sheriff is not the employer of his deputies.

“Plaintiff was not under a contract of employment. There is no evidence of a written contract. Neither is there any evidence of the elements which might give rise to a quasi contract. As noted above, the deputy’s commission expires with the sheriff’s term of office. Thus, at the very most, plaintiff could have an expectation of continuing his service only until the sheriff’s current term expires.
“From the foregoing it is clear that under the applicable Louisiana law and the facts of this case, plaintiff was not an ‘employee’ of the Calcasieu Parish Sheriff’s Office. The relationship is much more personal; it is an appointor-appoin-tee relationship. There is no such person as a career deputy because the deputy is appointed to fill a term of four years or less to coincide with the term of the appointing sheriff. He has and can earn no right to or prospect of promotion or reappointment. He is not subject to civil service. No contractual rights are involved. The deputy is not an employee but is, rather, an appointee.” 395 F.Supp. at 1309, 1310.

The court further noted the essential political nature of the appointment of deputies, and that sheriffs are not found to follow any objective criteria for selection of deputies. This exists in all political appointments not covered by Civil Service, and is to be anticipated. It quoted with approval from Wilson v. Kelley, 294 F.Supp. 1005 (N.D.Ga.1968). footnote 6,

“In the elective-appointive area, however, the process is entirely political. Each elected official must rise and fall on his performance and that of his appointed assistants. The courts would not presume to tell the President, or Governor, .a Senator or Congressman that there are limitations on his cabinet or staff appointments. Similarly, other elected officials (such as the Sheriffs here) have freedom to choose such subordinates. The growing number of Negro appointees in Georgia is proof that such lack of discrimination is politically sage. Nevertheless, the power of an elected official to appoint freely appears inviolate, and the risk is his own choice.
Thus, pending further Congressional action or clarification by the courts logic would dictate that the Fourteenth Amendment right to public employment is hybrid, existing in the civil service-competitive-merit area and not existing in the elective-appointive, area.” 395 F.Supp. at 1310.

We are faced with the same situation. In the absence of an employer/employee relationship, R.S. 23:961 cannot be applicable. Furthermore, because plaintiff was not fired, but rather not reappointed, there can be no cause of action for wrongful discharge. Without any contractual rights in his employment, a deputy, or other political appointee, has no right to expect nor basis for expecting continued employment.

For these reasons, we find that the trial court’s dismissal of plaintiff’s suit for failure to state a cause of action was correct. In light of this finding no ruling on the exception of no right of action is necessary.

For the reasons assigned, the judgment appealed from is affirmed, costs of this appeal to be borne by appellant.

AFFIRMED.


author: REDMANN, Judge.

text:
    Roy WOODRUFF v. DEPARTMENT OF FIRE.
    No. 9535.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 1978.
    Writ Refused Jan. 12, 1979.

      Archie C. Tatford, Jr., New Orleans, for plaintiff.
    Michael A. Starks, New Orleans, for defendant.
    Before REDMANN, BOUTALL and GARRISON, JJ.
   REDMANN, Judge.

Firefighter Roy Woodruff was suspended for two days (with his partner, who never contested the suspension) by letter reciting:

You . . . were assigned to the Emergency Unit when a portable radio was reported missing. You stated at the administrative hearing . . that it probably was stolen . . . probably . when you responded to a call.
The fact is that this vital piece of equipment was under your care . . , and whether it was stolen or lost does not relieve you of this responsibility. This is not a cumbersome piece of equipment that would hamper you in your work performance, on the contrary it is a very beneficial piece of equipment that could be used for instant communications and certainly you could have carried it by hand, on the belt or over the shoulder but under no circumstances should this piece of equipment have been left unattended.
Because of your careless act . I am ordering you suspended for a period of 2 days.
I call your attention to the fact that this is a vital and expensive piece of equipment and not only does it cost money to replace it but in the hands of the wrong person this could severely hamper the communications of the New Orleans Fire Department. .

The Civil Service Commission, by a two-to-one decision, sustained Woodruff’s appeal from the suspension, on a conclusion that the superintendent’s letter of suspension (in addition to reciting the factually-correct charges quoted above) incorrectly charged Woodruff with violating Regulation 10:03: “In the absence of any officer designated to perform certain duties, his immediate junior or other designated member shall perform those duties.”

We agree with the Commission majority that Woodruff’s actions alone do not constitute a violation of the cited regulation. However, the Commission’s reliance on the principle that an appellant “is entitled to know the charges pending against him prior to a hearing on those charges” is inappropriate here, because this appellant knew precisely the charge against himself, as our lengthy quotation of the letter of suspension shows.

The only constitutional protection is against “disciplinary action except for cause expressed in writing”, La.Const. art. 10 § 8(A). See Branighan v. Department of Police, La.App. 4 Cir. 1978, 362 So.2d 1224. Woodruff was disciplined for cause expressed in detail in writing. That the writing also referred to an inappropriate departmental regulation does not invalidate the disciplinary action, which, for the cause expressed, was within the discretion that inescapably must repose in the superintendent.

The decision of the Commission is reversed and Firefighter Woodruff’s appeal to the Commission is dismissed at his cost.


author: SAMUEL, Judge. BEER, Judge,

text:
    Zaida MORA and Cynthia Ramirez v. AMERICAN MOTORS LEASING CORP., Greyhound Rent A Car, Marvin T. Shaffer, and Liberty Mutual Insurance Company.
    No. 9543.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 1978.
    Orrett, Ortiz & Selenberg, Carl J. Selen-berg and Neville G: Orrett, New Orleans, for plaintiffs-appellants.
    Porteous, Toledano, Hainkel & Johnson, Edward J. Brandao, New Orleans, for defendants-appellees.
    Before SAMUEL, GULOTTA and BEER, JJ.
   SAMUEL, Judge.

This is a suit for personal injuries resulting from a rear end automobile accident which occurred on December 30, 1975. Defendants stipulated liability prior to trial. The matter was tried to a jury which, as stated in the jury’s answers to interrogatories, found for plaintiff driver, Zaida Mora, in the sum of $978.40 for property damage, and “Doctor $275”, and in the sum of “$220 Doctor” for Cynthia Ramirez, the plaintiff guest passenger. These were the exact amounts demanded and proved by the plaintiffs. The award of the jury was made the judgment of the court. Plaintiffs have appealed seeking an increase in quantum.

Appellants contend they are entitled to an award for personal injuries over and above that for medical expense. They rely on the cases of Schexnayder v. Carpenter, La., 346 So.2d 196, Coco v. Winston Industries, Inc., La., 341 So.2d 332, Moss v. Security National Insurance Company, La.App., 350 So.2d 247, and Robinson v. General Motors Corporation, La.App., 328 So.2d 751, to support their claim that a jury may not refuse general damages to plaintiffs with objective injuries. We agree that the plaintiffs offered sufficient proof of objective signs of injury (the testimony of plaintiffs’ treating physician, the only medical evidence adduced, is that he found muscle spasm and administered treatment as stated infra in this opinion) and that some award should have been made in addition to the medical expenses.

As this court stated at page 752 in the case of Robinson v. General Motors Corporation, cited supra, “Perhaps the jury felt that by awarding the full amount of medical expenses ... it was sufficiently compensating for both legitimate pecuniary losses and for pain and suffering as well. . . .

But we do not have a general verdict, . It may not refuse general damages to plaintiffs with objective injuries.”

Relative to Mrs. Mora’s injuries, she hurt her neck, back and chest. She struck the steering wheel of the vehicle. She called her family physician that evening and went to see him several days later. Dr. Figueroa, her family physician, testified that she was first seen by him on January 6, 1976 with complaints relating to the neck, chest and lower back. He performed examinations in those areas and found a 25% deficiency of motion in the cervical area and spasms in the right paraspinous muscles. He found no bruises in the chest area where she hit the steering wheel, but on palpation she complained it was tender. In the lower back area the doctor found a 50% limitation of range and spasm along the left paravertebral muscle and tenderness of the lumbosacral spine. He diagnosed her injuries as acute strain of the cervical spine, contusion of the lower rib cage, and acute strain of the lumbosacral spine.

Heat treatments were recommended and performed in his office January 9, 12, 14, 19, 22, 26, 30, and February 4, 1976. The doctor examined her again on February 9, at which time she was feeling better but still had pain in the lower back. Heat treatments were continued and medication was prescribed. She was seen again February 23, March 4, and discharged in satisfactory (“not perfect”) condition on April 2, 1976.

Mrs. Ramirez hit her head on the windshield and slid to the floor as a result of the accident. She telephoned Dr. Figueroa, her family physician, that evening and also saw him several days later. At that time the doctor, according to his testimony, performed a routine orthopedic examination and found a 25% decrease in motion of the cervical spine. He noted pain and spasm of the left paraspinous muscle and tenderness along the right side of the spine and tenderness in a portion of the dorsal spine. Treatment consisted of tablets which combine muscle relaxants with analgesics, and heat treatment was recommended. He diagnosed her injury as acute strain of the cervical spine. She was seen by him on two other occasions, February 4, and March 10, 1976, at which time she still had pain in the mid back and pain “on and off” in the back of the neck. She was discharged on April 2, 1976.

We are of the opinion that an award of $750 is reasonable for the injuries sustained by Mrs. Mora. We are of the further opinion that Mrs. Ramirez’s injuries were less severe and thus an award of $500 is adequate compensation. Thus, we raise the awards to the lowest point we feel is reasonable within the discretion afforded the trial court.

For the reasons assigned, it is ordered that the judgment appealed from be amended to increase the award to plaintiff, Zaida Mora, by the sum of $750, and increase the award to plaintiff, Cynthia Ramirez, by the sum of $500. As thus amended and in all other respects, the judgment appealed from is affirmed.

AMENDED AND AFFIRMED.

BEER, J., concurring with written reasons.

BEER, Judge,

concurring.

A plaintiff’s verdict which awards special damages including medical bills should not, a fortiori, require an award for general damages. It would be quite in order for a jury, finding liability, to reimburse a plaintiff for medical expenses (and, of course, other items of special damages) without finding that he is entitled to any general damages at all. Indeed, this would be the entirely correct result if the jury believed that the plaintiff, in spite of having been seen by a physician, was not actually injured. Furthermore, I do not believe that payment of a medical bill that includes some minimal “heat treatments” and the like necessarily requires any change in this position.

However, in this particular case, I agree with my brothers who are of the view that the record uncontrovertedly supports a conclusion that each of these ladies was— though minimally in each instance — actually injured.

Had the record not uncontestedly supported this conclusion, I would definitely vote to affirm and feel obliged, therefore, to make these qualifying observations.


text:
    Ernest MARCELLE, Jr. and Darrilyn Walker, wife of/and Frederick Walker v. Stanley A. CHIN-BING and Allstate Insurance Company.
    No. 9513.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 1978.
    Rehearing Denied Dec. 15, 1978.

      John P. Cosentino and Steven R. Plotkin, New Orleans, for plaintiffs-appellants.
    Murphy & Simon, E. Kelleher Simon, New Orleans, for defendants-appellees.
    O’Keefe, O’Keefe & Berrigan, E. John Litchfield, New Orleans, for intervenor-ap-pellant.
    Before SAMUEL, GULOTTA and BEER, JJ.
   SAMUEL, Judge.

This is a suit for personal injuries and medical expenses resulting from an automobile accident which occurred on Airline Highway in the Parish of Jefferson. The accident in suit was the third of three collisions. Plaintiffs are Ernest Marcelle, Jr., driver of a car involved in the accident in suit, and Darrilyn Walker, wife of/and Frederick Walker. Mrs. Walker was the driver of a car involved in the first collision and a passenger in Marcelle’s vehicle when the third collision occurred. Named defendants are the driver of the vehicle involved in the accident in suit and his liability insurer. Rockwood Insurance Company intervened for workmen’s compensation and medical expenses it had paid Marcelle.

The case was tried to a jury which found the negligence of both drivers of the vehicles involved in the accident in suit proximately caused that collision and awarded Mrs. Walker $445.55, the amount of her medical expenses. The jury verdict was made the judgment of the court and the suits of Marcelle and intervenor were dismissed. Plaintiffs and intervenor have appealed.

The record reflects the following facts: At approximately 7:40 pirn, on July 12, 1976, a dark, rainy night, plaintiff, Ernest Marcelle, Jr., a Louisiana state trooper in the course of his employment, went to investigate an automobile accident on Airline Highway at the entrance to the Crescent Airline Shopping Center. Mrs. Walker, the other plaintiff in this suit, had rear ended an automobile stopped for a red light at the entrance to the shopping center.

At the scene of this accident Airline Highway contains four lanes for traffic traveling in each direction. When Marcelle arrived the two vehicles were occupying the second lane from the shoulder of the highway nearer the shopping center. Mrs. Walker and her passenger were not hurt but the driver of the other vehicle was lying across the front seat of his car and complained of severe pain.

Officer Marcelle with someone (presumably Mrs. Walker or her passenger who had been in the Walker automobile) pushed that vehicle off the highway with the police car. While Marcelle was thus engaged another vehicle hit the car which Mrs. Walker had rear ended. Officer Marcelle then drove the police car behind the vehicle which Mrs. Walker had struck to protect the injured party. He radioed for an ambulance and a wrecker.

While awaiting their arrival, Marcelle was seated in the driver’s seat of the police car questioning Mrs. Walker and her guest passenger who were seated in the rear. Shortly thereafter the police vehicle was struck in the rear by an automobile driven by defendant, Stanley A. Chin-Bing.

According to Chin-Bing, he had proceeded along Airline toward the shopping center at a speed of 35 miles per hour when he saw the police care about 150 feet away. He did not realize the police car was stopped nor did he pay attention to the flashing lights until he was 80 feet away, when he started to apply his brakes. He hit the police car in the rear causing the injuries claimed herein.

The questions before this court are: (1) was Chin-Bing negligent; (2) was Marcelle guilty of contributory negligence which bars a recovery by him (if he was, the intervention was properly dismissed); and (3)is Mrs. Walker entitled to an award for personal injuries in addition to her medical expenses.

Based upon his own testimony, we do not disagree with the jury finding on Chin-Bing’s negligence. Since he saw the police car at a distance of 150 feet, he could and should have brought his vehicle to a stop prior to the accident.

Marcelle claims he was free of negligence in placing the police car behind the other vehicle because he could not move that vehicle without risk of injury to its driver. The jury did not agree. In his attempt to protect the injured driver of the other vehicle, the jury must have concluded he placed Mrs. Walker, her passenger and himself in jeopardy. Considering the darkness, the heavy rainfall, and the fact that two collisions, particularly the second, had occurred at the same place due to poor visibility, we cannot say the jury erred in finding contributory negligence on the part of Marcelle, which contributory negligence was a proximate cause of the third collision, the one in suit.

Where there is evidence before the trier of fact which upon its reasonable evaluation furnishes a reasonable factual basis for that finding, on review the appellate court should not disturb this finding in the absence of manifest error. We find no manifest error here.

Alternatively, Marcelle and the in-tervenor would have us apply the doctrine of “unconscious last clear chance”. To avail one’s self of that doctrine the following must be proved: (1) the litigant seeking application of the doctrine was in a position of peril of which he was unaware or from which he could not extricate himself; (2) the defendant actually discovered or should have discovered this peril; and (3) after discovering the peril the defendant had the opportunity to avoid the accident.

Marcelle cannot satisfy the first requirement of this doctrine. He knew of the danger, a danger emphasized by the second collision, and could have protected all parties by moving both vehicles before the third accident occurred.

Relative to the award to Mrs. Walker, in its answers to interrogatories the jury found her not guilty of any negligence. They awarded her $445.55, the amount of her proven medical expenses.

We agree with the finding of no negligence on the part of Mrs. Walker in the accident in suit, the third collision. However, as we said in Robinson v. General Motors Corporation, La.App., 328 So.2d 751, 752:

“Perhaps the jury felt by awarding the full amount of medical expenses . it was sufficiently compensating for both legitimate pecuniary losses and for pain and suffering as well. .
But we do not have a general verdict, and an award of ‘none’ as damages for pain and suffering is not an exercise of discretion . . . but a refusal of an award.”

Defendant contends the award of $445.55 includes an award in addition to medical expenses, but this is not reflected by the record. As we have said, the jury award was the amount of Mrs. Walker’s proven medical expenses.

Mrs. Walker sustained a cervical injury as a result of the accident in suit. She was seen two days thereafter by her physician, who noted muscle spasms and ordered pain medication, muscle relaxants and physical therapy. On July 26, spasms were also present, although less than that of the previous visit. She was discharged on August 6, 1976, approximately three weeks after the accident. We fix the general damage award toward the lower limits of the much discretion as provided by Civil Code Article 1934(3).

For the reasons assigned, the judgment appealed from is amended to increase the award to Mrs. Walker by the sum of $750, for a total award of $1,195.55. As thus amended, and in all other respects, the judgment appealed from is affirmed.

AMENDED AND AFFIRMED.

BEER, J., concurring with written reasons.

BEER, Judge,

concurring.

I respectfully concur for the reasons set forth in my concurring opinion in Zaida Mora and Cynthia Ramirez v. American Motors Leasing Corp., et al., La. Court of Appeal, Fourth Circuit, No. 9543, 364 So.2d 1343.

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

      . Pence v. Ketchum, La., 326 So.2d 831; Williams v. City of Baton Rouge, 252 La. 770, 214 So.2d 138; Jackson v. Cook, 189 La. 860, 181 So. 195.

      . See also Mora, et al. v. American Motors Leasing Corp., et al., No. 9543 of our docket, La.App., 364 So.2d 1343, handed down this day.


author: GULOTTA, Judge.

text:
    Judy BADEAUX, on her Behalf and on Behalf of the Estate of her Son, Christopher Scott Knight v. EAST JEFFERSON GENERAL HOSPITAL et al.
    No. 9642.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 1978.

      Charles S. Meriwether, Metairie, for plaintiff-appellant.
    McGlinchey, Stafford, Mintz & Hoffman, C. G. Norwood, Jr., New Orleans, for defendants-appellees.
    Before SAMUEL, GULOTTA and BEER, JJ.
   GULOTTA, Judge.

In this medical malpractice suit, plaintiff appeals from the dismissal, by summary judgment, of her claim against the hospital for the wrongful death of her minor child. We affirm.

The suit was directed against the hospital and the two physicians (the emergency room physician and the family pediatrician) who attended the child on the night the child was admitted to the hospital. The claims against the physicians are pending.

At approximately 10:20 p. m. on the night of February 4, 1975, plaintiff brought the five year old minor child to the emergency room of the East Jefferson General Hospital. The child was suffering with high fever and with complaints of a headache, neck and back pain. The family pediatrician was summoned and blood count and throat culture tests were made. At approximately 12:55 a. m. (February 5th) the child was permitted to return home. Later on that morning, the child was returned to the hospital in a comatose, or unconscious state. Meningitis was diagnosed and the child was hospitalized until February 13, 1975, when he died.

The allegations of the petition, upon which plaintiff bases her claim against the hospital, are as follows:

“. . . Upon arrival, the doctors present, made defendants herein, were advised of the symptoms and an examination was made. Certain tests were run and sent to the hospital laboratory. Your petitioner was then advised to take the child back home to await results. At no time was your petitioner suggested to leave the child in the hospital overnight for observation . . ”

Plaintiff further alleges that because of the negligence of its agents, (the emergency room physician and the family pediatrician, who saw the child on the night of February 4th) the hospital is vicariously liable. No allegations are made that these doctors are employees under the supervision of the hospital. In the following paragraph of her petition, plaintiff alleges that the child died as a result of the negligence of the hospital’s agents and employees who failed to promptly furnish the attending physicians with the test results.

We consider, first, the claim against the hospital based on the negligence of the emergency room physician and the pediatrician. Simply put, plaintiff contends the two attending physicians are agents of the hospital; that their negligence resulted in the wrongful death of the minor child, and, under the theory of respondeat superior, the hospital is liable.

Attached to defendant’s motion for summary judgment is an affidavit of the assistant administrator of the hospital in which he states the emergency room physicians are not agents or employees of the hospital and that the hospital has no authority to oversee or supervise the exercising of the professional medical judgments of the emergency room physicians. The affidavit goes on to state that the physician on duty in the emergency room, on February 4th, was a member or employee of a professional medical corporation with which the hospital had contracted to perform emergency room services.

Also attached to the motion for summary judgment is the contract between the hospital and the corporation which provides that emergency room services at the hospital are to be performed by physicians who are members or employees of the corporation, an independent contractor. Included in the contract is a disclaimer which states that the agents or employees of the corporation furnishing the emergency room physicians to the hospital are not to be construed as agents or employees of the hospital. The contract requires the corporation to furnish physicians in the emergency room on a twenty-four hour basis and to provide highest professional and ethical services. No provision is contained in the contract for control or supervision over the emergency room physicians by the hospital; however, the contract requires that the emergency room physicians be members of the hospital staff and the hospital reserves the right to designate removal of individual physicians from the emergency service. Significantly, we point out that plaintiff has not filed any countervailing affidavits or documents.

When a motion for summary judgment is supported by affidavits or other sworn supported documents, an adverse party may not rely solely on the allegations contained in his pleading. See C.C.P. 967. Well established also, is the rule that a principal is not liable for the torts of a non-servant agent, but as a master or employer, he is liable for the tortious conduct only of his servants or employees, when that conduct is within the scope of the employment. Blanchard v. Ogima, 253 La. 34, 215 So.2d 902 (La.1968); Ocmond v. Eserman, 259 So.2d 600 (4th Cir. 1972), writs refused 261 La. 825, 261 So.2d 230 (1972). According to the Louisiana Supreme Court in Savoie v. Fireman’s Fund Insurance Co., 347 So.2d 188 (La.1977) an important element to be considered in determining whether an employment relationship exists, is the control and supervision exercised. Also subject for scrutiny is the economic relationship and arrangements between the parties. Bianchard v. Ogima, supra.

When the affidavit of the Assistant Superintendent of the hospital and the contract between the hospital and the corporation, are considered, and in the absence of countervailing affidavits or supporting documents by plaintiff, we conclude, that as a matter of law no liability exists on the part of the hospital in this case, under the theory of respondeat superior, for alleged negligent acts of the assigned emergency room physician.

The petition, as it relates to the summoned family pediatrician, alleges that he is “an agent” of the hospital. No allegation is made that this physician is an employee of the hospital, under the hospital’s supervision and control. Although the affidavit of the Assistant Administrator of the hospital did not make mention of this physician’s relationship with the hospital, other documents made part of the record, which we consider for purposes of the motion for summary judgment, support a conclusion that no liability exists on the part of the hospital, under the theory of the respondeat superior, for the family pediatrician’s action.

In this connection, in an answer made by the attorney for the hospital to interrogatories propounded to the hospital, he states that the pediatrician was not an employee of the hospital. Furthermore, plaintiff’s deposition in which she indicates (although not clear from the deposition) the child had been receiving pediatric services from Rothschild Clinic and that the pediatrician was affiliated, in some way, with the clinic negates any contention that this physician was an employee of the hospital, under the hospital’s supervision.

Next, we consider plaintiff’s claim against the hospital, based on the apparent allegations that employees of the hospital failed to properly notify the attending physicians of the results of the tests. We conclude again, that the hospital is entitled to a summary judgment. Plaintiff’s allegations, in this regard, are vague and indefinite. No specific allegation is made that the results of the reports were not furnished to the physicians by the hospital employees; however, the allegations indicate a supposition that this is the basis upon which liability is sought to be assessed against the hospital. Nevertheless, a pathologist at East Jefferson General Hospital, in an affidavit attached to defendant’s motion for summary judgment, asserts that the results of the blood count were reported on February 4, 1975 at 11:46 p. m. prior to the child’s release from the hospital; and, further, because of the nature of the throat culture test, it was not possible to report this test result prior to the child’s leaving the emergency room on February 4th. According to the affidavit, the time necessary for sufficient propagation is between twelve and seventy-two hours. No response was made by plaintiff to this affidavit. Plaintiff failed to file any countervailing affidavits. In plaintiff’s deposition, however, she states:

“Q. What is it that you contend that the hospital as opposed to the doctor did wrong in this situation?
A. The hospital?
Q. Yes, you’ve sued the hospital, too, haven’t you?
A. The test that was done.
Q. Pardon?
A. About the test, the results of the test.
Q. What about the results of the test?
A. They didn’t get them till the next day.
Q. You’re talking about the blood work and the throat culture?
A. Yes.”

We do not interpret these depositions in the nature of a response, as required under C.C.P. 967, when a motion for summary judgment is filed together with supporting documents.

Assuming, however, that the deposition is a response to the hospital’s motion, the deposition is fatal because it does not state “specific facts” showing that there exists a “genuine” issue for trial. The deposition fails to state a basis for plaintiff’s supposition that the report of the blood count was not promptly made available by the hospital to the attending physicians. Under the circumstances, we conclude the motion for summary judgment dismissing the hospital was properly granted. The judgment is affirmed.

AFFIRMED.

      . An intervention, filed by the father of the minor child, divorced from the plaintiff, was also dismissed by summary judgment.

      . Art. 2320. Acts of servants, students or apprentices
      Art. 2320. Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.
      Teachers and artisans are answerable for the damage caused by their scholars or apprentices, while under their superintendence.
      In the above cases, responsibility only attaches, when the masters or employers, teachers and artisans, might have prevented the act which caused the damage, and have not done it.

      . C.C.P. 967 in pertinent part provides:
      “When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.”


author: LEMMON, Judge.

text:
    George W. GILL, Jr. v. Santo J. DiFATTA.
    No. 9241.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 13, 1978.

      Dodge, Friend, Wilson & Spedale, Gordon F. Wilson, Jr., Richard S. McBride, Jr., New Orleans, for plaintiff-appellee.
    Bordelon & Carimi, Darryl J. Carimi, Gretna, for defendant-appellant.
    Before LEMMON, GULOTTA and BOU-TALL, JJ.
   LEMMON, Judge.

This appeal involves an attorney’s suit against his client for fees allegedly earned and unpaid and the client’s reconventional demand for damages allegedly caused by the attorney’s malpractice. The trial court awarded part of the fees sought by the attorney and dismissed the client’s reeon-ventional demand for damages, and both parties appealed. Evidence in support of the two demands was presented separately, and each demand will be separately discussed.

Gill’s Demand for Attorney’s Fees

In June, 1969 Santo DiFatta employed George Gill to perform various legal services, as requested, for a fee of $25.00 per hour. Although DiFatta at the time was the principal mover in the proposed construction of a marina on property leased by Lake Island Realty Company from the Board of Levee Commissioners of the Orleans Levee District (Levee Board), Gill performed work in furtherance of the project only upon assignment of specific tasks by DiFatta.

During the next 19 months Gill handled numerous legal .matters for DiFatta, but did not submit periodic bills for these services. In response to Gill’s requests for payments on account during this period DiFat-ta made four payments, in various amounts totaling $4,000.00, the last being made on May 20, 1970. In February, 1971 Gill submitted an itemized statement for an additional $32,166.93 and subsequently sued for that amount. After trial on the merits judgment was rendered awarding $11,-051.88 over and above DiFatta’s payments, subject to another undisputed credit for certain expenses paid by DiFatta.

On appeal DiFatta does not contest the amount awarded (except implicitly as to the amounts charged for the services which allegedly constituted malpractice), and in fact he praised Gill’s efforts in the handling of many matters covered by the statement. On the other hand, Gill’s sole argument on appeal as to this issue is that two expert attorneys testified the fees listed on the statement were reasonable.

Of the fees disallowed or reduced by the trial judge, the first is a compilation of charges for office consultations. The reduction from the total amount itemized on Gill’s time sheet represents a factual finding as to the number of hours proved, and Gill makes no showing of manifest error in this determination. Another reduction not seriously disputed by Gill is a $1,000.00 fee, lowered to $500.00, for certain work with the Levee Board, part of which perhaps represents duplication of other charges.

As to reductions in fees for three litigated cases, the parties had not agreed upon a fixed fee for any of the matters, and Gill had not kept time records. In the Bush case involving defense of a suit on a promissory note, Gill filed an exception and undertook discovery and other preliminary work in a matter which never went to trial. The reduction of a $4,634.33 charge (10% of the note sued upon) to $1,500.00 and costs does not constitute an abuse of discretion. In the Dominican case involving cancellation of a lease, the judge reasonably allowed 10% of the total amount of the gross payments in the primary term of the lease which Gill successfully defended, rather than 10% of the total payments, including renewals, as billed. And in the Vandervort case involving a partial fee for architectural work in planning the marina, there was no abuse of discretion in awarding $1,000.00 and costs for preliminary work when the case was ultimately settled by another attorney for $2,000.00.

Finally, denial of Gill’s percentage charge for recovering two negotiable notes was not manifestly erroneous when the record shows only that the notes were returned voluntarily upon Gill’s demand during a four-day trip to St. Louis, for which DiFatta paid him an agreed fee of $500.00 per day.

DiFatta’s Demand for Damages

DiFatta’s principal claim in the amount of $150,000.00 is based on allegations of Gill’s substandard performance of legal services involving DiFatta’s application for permanent financing of the marina project, particularly advice by Gill that certain documents were legally sufficient to protect DiFatta’s interests. DiFatta argues that he sustained damages because he paid $150,-000.00 to a bogus financing group in St. Louis in reliance upon that advice.

In the spring of 1970 DiFatta had not yet secured permanent financing for the $5,800,000.00 marina project, although several local banks had expressed willingness to provide interim financing during construction, if an acceptable commitment for permanent financing was obtained in advance of construction. Moreover, the lease with the Levee Board required completion of certain construction by September 14, 1970 (18 months after execution of the lease).

Around April, 1970 Cecil Hilburn, an insurance agent, introduced DiFatta to Ben Feinstein, an insurance broker from St. Louis who claimed to represent a group of investors interested in financing large construction projects. It soon became evident that the investors were actually brokers, but under the tightening time pressure DiFatta pursued the lead. Eventually, DiFat-ta and Hilbum’s partner met with the group in St. Louis, and DiFatta agreed to pay a 7% origination or broker’s fee ($410,-270.00) in advance for their obtaining a commitment for permanent financing on specified terms and to make a deposit of $50,000.00 by a certain date.

On May 11, 1970 (after DiFatta had not paid the $50,000.00 by the promised date) DiFatta and Hilburn’s partner consulted Gill about the proposed transaction. (Gill contends he had nothing to do with the financing arrangements prior to this time.) DiFatta telephoned Joel Ginsburg, the St. Louis Broker, with Gill listening on an extension, and Gill overheard Ginsburg degrade and intimidate DiFatta. When Ginsburg told DiFatta the deal was off, the latter pleaded for continued assistance in obtaining financing. Gill, observing that no legitimate businessman would treat a customer in this manner, advised DiFatta against working with this group, but DiFat-ta said that he was “drowning” and the St. Louis brokers were his only hope to salvage his project.

DiFatta asked Gill and the vice-president of the bank that was to provide the interim financing to go with him to St. Louis to complete the application for a permanent financing commitment. At the last minute the banker was unable to make the trip, and Gill reluctantly accompanied DiFatta (according to Gill, in order to “read the papers”) on May 18. After more intimidation and an extended meeting which lasted into the night, DiFatta agreed on a schedule of payments of the broker’s fee, with Ginsburg insisting that the entire transaction, including placing the deposit with an escrow agent, be completed that evening. Gill took no part in the negotiations and advised DiFatta not to execute the contracts or to give the deposit, particularly in view of the unbusinesslike method of dealing, the high pressure tactics, and the fact that the escrow agent shared the suite of offices with the broker. When DiFatta insisted on going ahead, Gill reviewed the contracts and approved them from a legal standpoint as being legally sufficient to protect DiFatta if the St. Louis group lived up to their representations. Because the commitment was worthless if the Levee Board did not extend DiFatta’s time for completing construction, Gill did require insertion of a provision that most of the money would be returned if the Levee Board did not extend the terms of the lease. DiFatta thereupon paid $50,000.00 to the escrow agent.

When DiFatta and Gill returned to New Orleans, the Levee Board at first refused to amend the lease, but because of Gill’s diligent efforts the Board agreed on May 27 to an 18-month extension of the time for completing the improvements on the condition that an acceptable commitment for permanent financing would be forthcoming by June 26. Also on May 27 DiFatta, in accordance with his financing contract, sent to the escrow agent $100,000.00 in cash, two notes in the total amount of $110,000.00 which were secured by real estate, and a pledge of the monthly proceeds from the sale of a coin machine business.

The commitment, issued by Tangible Risk Insurance Company, arrived by mail on June 26, but investigation revealed that the company had no assets, and the Levee Board rejected the commitment. Gill and DiFatta attempted to obtain the return of the money and notes, but were successful only in recovering the notes. They then employed a detective agency, which performed an extensive investigation, and the St. Louis group ultimately pleaded guilty to scheming to defraud DiFatta.

As to the malpractice claim, DiFatta, admitting Gill was not responsible for his business decision, argues that Gill’s legal advise about being protected by the contracts fell below the standard of care exercised by competent attorneys.

In support of this argument DiFatta presented an expert attorney who specialized in commercial real estate transactions. The expert opined that the mortgage commitment application “smacks of fraud” in that the 7% fee was exorbitant (1% was usual) and the requirement of advance money was suspicious, although he admitted an advance in escrow is often furnished, when the borrower’s seriousness or solvency is unknown, to induce the broker to exert substantial time and effort. He also opined that the escrow contract “smacks of fraud” in that there was no provision for an escrow fee and no exculpatory provision for holding the escrow agent harmless, observing that while both of these provisions were for the benefit of the escrow agent and not the borrower, the absence of the provisions made the documents suspicious. He stated he would have advised his client against executing the documents or advancing money, at least without further investigation, and would have withdrawn his representation if the client had failed to heed his advice.

Under the record-supported facts accepted by the trial judge, Gill offered exactly that advice. His suspicions arose from the method of dealing and the close association of the broker and escrow agent, before the documents were presented, rather than after reading the documents. But regardless of the basis for the advice, the fact remains that the advise was offered and rejected by a client who the record suggests was under extreme financial and time pressures and was so consumed with avarice and desperation that he was ripe for picking by confidence game operators.

DiFatta was damaged because he accepted the advice he wanted to hear (from Ginsburg and Feinstein, who insisted that the transaction be completed that night) and rejected the advice he dreaded hearing (from Gill, who suggested rejection of the deal or investigation of the suspicious circumstances).

DiFatta argues, however, that even if it were proved he refused to accept Gill’s advice about doing business with Ginsburg, Gill did not withdraw representation, but continued on and improperly advised him the contracts were legally sufficient to protect him if Ginsburg’s group turned out to be trustworthy.

As to the legal sufficiency of the contracts, the expert attorney pointed out that the commitment application incorrectly stated title was vested in Lake Island Realty. Thus, even if the ensuing commitment were otherwise valid, it would have been useless and valueless if issued on the basis that DiFatta’s corporation was the owner rather than the lessee, since any mortgagee probably would have required subrogation of the lease. Other deficiencies were also pointed out, such as the lack of a requirement that the commitment be acceptable to the construction lender (although there was a provision as to minimum net assets of the permanent lender) and the lack of a requirement in the escrow contract that the commitment be submitted to the borrower for approval before disbursement of the funds.

An attorney who accepts employment holds out to his client that he possesses the knowledge and skill necessary to handle the matter for which he is employed. If the services involve a contract to be executed by the client, the attorney must scrutinize the contract and disclose the full import of the instrument and the consequences of its execution. Ramp v. St. Paul Fire & Marine Ins. Co., 263 La. 774, 269 So.2d 239 (1972). And when the attorney’s performance falls below the standards of competence and expertise usually exercised by other attorneys in handling such matters, the attorney is liable for any damage to the client caused by his substandard performance.

In the present case the contract arguably had several deficiencies which might have resulted in substantial problems or losses by DiFatta. Nevertheless, Gill’s failure to note these deficiencies was not the cause of any damage to DiFatta.

The proper method of determining whether a party’s omission to perform an act imposed by a duty is a cause in fact of damage to another is to determine whether performance of that act would have prevented the damage. In this case, if Gill had noted the incorrect designation of Lake Island Realty as owner, he should have corrected the application to designate the status as lessee, but the damage would still have occurred as it did. Therefore, his failure to note that deficiency cannot be said to be a cause in fact of the damage.

If the St. Louis group had been legitimate businessmen, DiFatta would have been entitled to the return of his funds under the contract approved by Gill, because the Levee Board never did approve the commitment. Even the expert attorney admitted the escrow agent could not properly have released the funds under the terms of the escrow contract.

DiFatta’s damages therefore were not caused by his attorney’s failure to note contract deficiencies, but by DiFatta’s releasing money to persons who were running a confidence game, and his damages were incurred as soon as he did so against his attorney’s advice based on indications these were not legitimate businessmen. DiFat-ta’s complaints that the attorney failed to note deficiencies in the contract he insisted on signing and that these deficiencies could have caused problems which did not occur are simply not a basis for a malpractice action to recover the damages he did incur.

Finally, DiFatta also demanded damages for Gill’s refusal to return the two promissory notes he had recovered. Gill testified that he originally retained the promissory notes because in executing a receipt he bound himself to return the notes to Feinstein, if timely proof were submitted of Tangible Risk’s financial ability, and that he held the notes in pledge after October 12, 1970 because DiFatta induced him to continue his representation without further payments on the fee by authorizing him to hold the notes until the fee was paid. DiFatta denied pledging the notes to Gill.

The trial court did not specifically rule upon this demand, but the judgment implicitly denied it. Also implicit was the acceptance of Gill’s testimony as to the pledge and the rejection of DiFatta’s testimony to the contrary. There is no manifest error in this resolution of the conflicting testimony. Moreover, since mere delivery is the only formality required to prove a valid pledge of a negotiable instrument, the demand was properly denied.

The judgment is affirmed.

AFFIRMED.

      . Between June, 1969 and the spring of 1970 Gill had performed other legal services for DiFatta, including successfully resisting attempts to cancel the lease after DiFatta had been accused of organized crime connections and again after DiFatta had failed to comply with certain lease terms regarding insurance coverage.

      . The trial court found as a fact, in the face of DiFatta’s denials, that Gill had warned DiFatta against doing business with the group, furnishing money to them, and using a close associate as an escrow agent. The record provides ample support for this finding.

      . For example, if a valid commitment had been issued to Lake Island Realty as owner, the commitment would have been worthless unless DiFatta could mortgage the leased property, but the origination fee would still have been earned.