text:
    Carol RYDER et al., Plaintiff-Appellee, v. Jean TRISLER and W. L. Trisler, Defendants-Appellants, Maryland Casualty Co., Defendant-Appellant.
    No. 6802.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 1979.

      Gist & Methvin, DeWitt T. Methvin, Jr., Alexandria, for defendants-appellants.
    Gist & Methvin & Trimble by David Hughes, Alexandria, for defendant-appellant, Maryland Gas.
    Gold, Little, Simon, Weems & Bruser, John F. Simon, Alexandria, Gravel, Roy & Burnes, James J. Brady, Alexandria, for plaintiff-appellee.
    Before WATSON, CUTRER, and DOU-CET, JJ.
   DOUCET, Judge.

This is a personal injury suit arising out of an automobile accident. On December 27, 1974, at approximately 11:15 A.M., plaintiff, Carol J. Ryder, accompanied by his wife and daughter, was proceeding in a westerly direction on Louisiana Highway 28 in Rapides Parish. The road was still wet from rain, which had recently fallen. Defendant, Ruby Jean Trisler, was travelling in the same direction, ahead of the Ryder vehicle. Defendant, Ronald J. Wilson was approaching from the opposite direction at a speed of forty-five miles per hour.

When the Wilson vehicle was approximately four car lengths away, Mrs. Trisler activated her left turn signal indicator and shortly thereafter executed a left turn into the driveway of a pharmacy. Ronald Wilson applied his brakes but was forced to swerve to the left to avoid hitting Mrs. Trisler’s car. Although he succeeded in missing her, he was unable to retain control of his car, which continued to slide sideways down the highway. The front end of his car struck the Ryder vehicle. His car then spun around, its rear striking a vehicle driven by John Moser, which had been following the Ryders. It then crossed back to the right lane and came to a stop in a ditch to the right of the highway.

The district court found that defendant, Ruby Jean Trisler, was guilty of negligence, which was the sole proximate cause of the accident. She and her husband, together with their liability insurer, State Farm Mutual Automobile Insurance Company, were ordered to pay damages. They appeal. Maryland Casualty Company was also held liable under the uninsured motorist provision of a policy it had issued on plaintiffs’ car. It also appeals.

Three issues have been raised by this appeal. First, the Trislers and State Farm contend that the district court erred in concluding that Mrs. Trisler was guilty of negligence, which was the proximate cause of the accident. Second, they urge that the district court erred in finding that defendant, Ronald J. Wilson, was free from negligence. The third issue was raised by Maryland Casualty Company and concerns the applicability of La.R.S. 22:1406 D(2)(b), as amended by Act 154 of 1974, to the policy of insurance issued by it to plaintiffs, Carol J. and Ollie D. Ryder. The facts relevant to this issue will be discussed later.

I

The duty of a left turning motorist was set forth by this court in Aetna Insurance Company v. Southern Farm Bureau Casualty Insurance Company, 347 So.2d 924 (La.App. 3rd Cir. 1977) in the following language:

“. . . The jurisprudence of this state is well settled that a motorist who attempts to make a left turn from a public highway is required to ascertain in advance that the way is clear and that the turn can be made safely and without endangering overtaking or oncoming traffic. The failure of a left turning motorist to make such a determination and to exercise the required degree of caution before undertaking to make such a turn constitutes negligence. Sonnier v. Hardware Mutual, 242 So.2d 900 (La.App. 3rd Cir. 1971). The duty of the left turning motorist is two-fold, first to give a proper signal, and secondly to make proper observation that the turn can be made without endangering oncoming or overtaking vehicles. Bamburg v. Nelson, 313 So.2d 872 (La.App. 2nd Cir. 1975).”

The district court found that Mrs. Trisler had breached this duty by failing to allow sufficient time after giving her turn signal to adequately warn oncoming and overtaking traffic and by turning in front of a car traveling forty-five miles per hour, when it was only four car lengths away. We find ample support in the record for the district court’s findings of fact, and we agree that Mrs. Trisler was negligent under the circumstances.

II

Although within the posted speed limit, a driver’s speed may nonetheless be considered excessive under the prevailing conditions at the time of an accident. La. R.S. 32:64. The district court found that Ronald J. Wilson’s speed was not unreasonable or a cause-in-fact of the collision. We agree. Given the proximity of the Trisler and Wilson vehicles when Mrs. Trisler began her turn, we do not believe that the accident would not have occurred but for the speed at which Mr. Wilson was traveling.

We also agree with the district court that Mr. Wilson’s failure to maintain control of his car was not the result of negligence on his part. Mrs. Trisler’s actions created an emergency situation which did not allow him sufficient time to fully consider the circumstances and alternative courses of action available to him. Because the emergency was not of his own making, he may not now be found guilty of negligence because he undertook an evasive maneuver, which he was unable to successfully complete. Hickman v. Southern Pacific Transport Co., 262 La. 102, 262 So.2d 385 (1972).

III

On July 28, 1974, Carol J. and Ollie D. Ryder applied for automobile liability insurance with Maryland Casualty and Surety Company, through their son, Wayne Ryder, an agent of that company. At that time, a rider was issued, providing automobile liability coverage from 12:01 A.M. on that date. An insurance policy was subsequently issued on August 1, 1974 with a policy period of July 28,1974 to July 28, 1975. As noted earlier in this opinion, the accident giving rise to this suit took place on December 27, 1974.

At the time the rider was issued, La.R.S. 22:1406 D(2)(b), as amended by Act 137 of 1972, provided:

“(b) For the purposes of this coverage the term ‘uninsured motor vehicle’ shall, subject to the terms and conditions of such coverage, also be deemed to include an insured motor vehicle when the automobile liability insurance coverage on such vehicle is less than the uninsured motorist coverage carried by an insured.” (Emphasis added)

The record shows that the Trislers were covered by an automobile liability insurance policy, issued by State Farm Mutual Automobile Insurance Company, with limits that were not less than the uninsured motorist coverage carried by the Ryders under the Maryland Casualty Company policy.

By the time the policy was issued on August 1, 1974, the above provision had again been amended by Act 154 of 1974, which became effective July 31, 1974. It now provides:

“(b) For the purposes of this coverage the term uninsured motor vehicle shall, subject to the terms and conditions of such coverage, also be deemed to include an insured motor vehicle when the automobile liability insurance coverage on such vehicle is less than the amount of damages suffered by an insured and/or the passengers in the insured’s vehicle at the time of an accident, as agreed to by the parties and their insurers or as determined by final adjudication.” (Emphasis added).

The provisions of the 1974 amendment apply to all policies issued after its effective date, July 31, 1974, but not to those issued before. Wilkinson v. Fireman's Fund Insurance Company, 298 So.2d 915 (La.App. 3rd Cir. 1972), writ refused 309 So.2d 657 (La.), O’Banion v. Allstate Insurance Company, 347 So.2d 878 (La.App. 3rd Cir. 1977). If we adopt the date of the rider as the relevant date, as urged by Maryland Casualty, plaintiffs will not get the benefit of the broadened coverage effected by the 1974 amendment. If we adopt August 1, 1974, as urged by plaintiffs, they will. For the following reasons, we hold that August 1, 1974 was the relevant date.

There was some confusion at the trial of this case, created by a stipulation entered into by counsel, concerning the power of the agent, Wayne Ryder, to bind Maryland Casualty Company. The district court originally held on the basis of that stipulation that he did not have the power to bind the company with regard to riders or policies. After clarification at a new trial, confined to this issue, it held that he was authorized to issue riders, binding on the company. However, as we understand the record in its entirety, he did not have authority to issue policies and the actual issuance of policies was in the discretion of Maryland Casualty Company. (TR 200).

In view of the fact that Wayne Ryder did not have authority to issue policies, we are unable to view the Ryders’ application for insurance, submitted on July 28, 1974, as anything but an offer, which was not accepted by the company until August 1, 1974, when the policy was issued. There was no contract until this took place. La. Civ.Code arts. 1798, 1800 and 1803. The rider, which the agent was authorized to issue, was a separate contract, which terminated when the policy was issued.

Counsel for Maryland Casualty cites in his brief Moll v. Mutual Health, Ben. & Acc. Ass’n, 223 La. 511, 66 So.2d 320 (1953). It is implicit from the court’s holding in that case that it viewed the application for insurance together with the payment of an advanced premium as a completed contract, subject to a resolutory condition, the right of the insurance company to accept or reject the risk. La.Civ.Code art. 2045. As noted above, we do not consider the submission of the application and issuance of the rider in this case as a completed contract from which the insurance policy flowed, due to the agent’s lack of authority to enter into such a contract.

He also cites New Jersey Life Insurance Co. v. Henri Petetin, Inc., 311 So.2d 454 (La.1975) and Daniel v. Blue Cross of Louisiana, 358 So.2d 345 (La.App. 4th Cir. 1978). Those cases deal with the ability of parties to provide for an effective date of a policy other than the date of its issuance.' We do not consider the insurance company’s use of the date of the rider in determining the policy period to be sufficient evidence of such an agreement by the parties. Therefore, those cases are not applicable, here.

Our holding is not in conflict with this court’s opinion in O’Banion v. Allstate Insurance Company, supra. We held there that the 1974 amendment to La.R.S. 22:1406 D(2)(b) did not apply to policies issued before July 31, 1974. Since we have concluded that the insurance policy was a second contract, which was completed on August 1, 1974, its effective date was after that of the amendment.

For the foregoing reasons, the judgment of the district court is affirmed in all respects. The costs of this appeal are assessed against Jean Trisler and W. L. Tris-ler and Maryland Casualty Company, defendants-appellants.

AFFIRMED.


source: Caselaw Access Project

author: CUTRER, Judge.

license: Public Domain

text:
    John M. BONNETTE, Plaintiff-Appellee, v. TRAVELERS INSURANCE COMPANY et al., Defendants-Appellants.
    No. 6814.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 1979.

      Watson, Murchison, Crews & Arthur, R. Raymond Arthur, Natchitoches, for defendants-appellants.
    Thomas & Dunahoe, G. F. Thomas, Jr., Natchitoches, for plaintiff-appellee.
    Before WATSON, CUTRER and DOU-CET, JJ.
   CUTRER, Judge.

This a workmen’s compensation suit by John M. Bonnette against his employer’s insurer, Travelers Insurance Company, for total and permanent disability allegedly resulting from injuries received in a job-related accident. From a judgment of the trial court awarding compensation for total and permanent disability at the rate of $95.00 per week during disability, penalties and attorney fees, medical travel expenses and other medical charges, defendant appealed. The plaintiff answered the appeal seeking an increase in attorney fees.

The specification of errors is as follows:

1. The Trial Court was manifestly erroneous in finding that any disability demonstrated by plaintiff herein arose out of an injury occurring in course and scope for the employer.
2. The Trial Court was erroneous in awarding plaintiff penalties and attorney’s fees.
3. The Trial Court was manifestly erroneous in awarding compensation at the maximum rate of $95.00 per week.
4. The Trial Court was erroneous in awarding medical travel expenses.

On August 12, 1976, plaintiff was operating a road grader in the course of his employment with the Police Jury for Natchi-toches Parish when the grader blade struck a stump causing the grader to stop suddenly. The sudden stop caused plaintiff to be thrown against the steering wheel causing injury. He worked the remainder of the day and, due to pain in his neck and right shoulder, he consulted with Dr. Richard Hanna the following day, August 13, 1976.

Dr. Hanna treated plaintiff conservatively for two days and then hospitalized him on August 16, 1976, for traction treatment of the neck. Plaintiff was discharged on August 28th. Dr. Hanna referred plaintiff to Dr. Burt, an orthopedist, who examined and treated plaintiff for his neck problems. Dr. Burt referred plaintiff to Dr. Warren D. Long, Jr., a neurosurgeon, for further evaluation and treatment.

Dr. Long saw plaintiff for the first time on November 5, 1976. A myelogram was performed reflecting arthritis at the C-5/6 level causing nerve root pressure. Surgery was performed on November 17, 1976, wherein a cervical fusion was performed at the C-5/6 level. Plaintiff was hospitalized until November 28, 1976. Post operative treatment was rendered. Dr. Long testified that an examination on December 28, 1976, showed plaintiff was recovering normally from the surgery but had developed problems with his right leg and hip. On January 28, 1977, plaintiff was still having problems with his back but has recovered from the cervical surgery. Dr. Long recommended he go back to work but not to lift anything weighing more than 25 to 30 pounds. The plaintiff returned to work on February 4,1977, and defendant terminated his compensation payments.

Plaintiff testified that he continued to work in pain and was taking medication. He returned to Dr. Long on April 15, 1977, complaining of severe pain in his right leg and hip. He was given medication and exercises were recommended. Plaintiff continued to work until July 8, 1977, at which time Dr. Hanna hospitalized plaintiff for his back pain. He was placed in traction and given medication. After discharge from the hospital, plaintiff saw Dr. Long again on July 19th. Dr. Long recommended a myelogram which was performed on August 5, 1977, along with X-rays. This study revealed an advanced arthritic condition in plaintiff’s back. Dr. Long was of the opinion that inactivity, due to the original injury and surgery to the neck area, aggravated the existing arthritis of the back causing it to manifest itself when plaintiff attempted to return to work. Dr. Hanna also was of this same opinion. Dr. Long also was of the opinion that plaintiff was permanently disabled from performing his work as a motor grader due to the back problem. He stated, however, that plaintiff may be able to perform a sedentary type of work. There is no evidence in the record, otherwise, that plaintiff was qualified for, nor is there any evidence that plaintiff could actually perform, any sedentary type of work without substantial pain. Dr. Long last saw plaintiff on October 25, 1977. He prescribed a back brace and recommended that plaintiff continue taking medication.

The trial judge concluded that plaintiff was totally and permanently disabled and that such disability was due to the injury received on August 12, 1976. The record fully supports this finding and we find no manifest error in the trial judge’s conclusion. Phillips v. Dresser Engineering, 351 So.2d 304 (La.App.3rd Cir. 1977).

Defendant terminated compensation on December 4, 1977. A report was sent to defendant by Dr. Hanna, dated August 26, 1977, which stated that plaintiff’s back condition was related to the original accident and injury. The deposition of Dr. Long was taken January 22, 1978, wherein Dr. Long stated that the back problem was related to the accident and injury as that brought on inactivity which aggravated the arthritis. The refusal of defendant to resume compensation payments after obtaining this medical information entitles plaintiff to penalties and attorney fees. Under these circumstances we find no manifest error in the trial judge’s award of penalties and attorney fees in the amount of $2,500.00. Ashworth v. Elton Pickering, Inc., 361 So.2d 940 (La.App.3rd Cir. 1978).

Plaintiff’s counsel has answered the appeal seeking an increase in attorney fees for appellate services rendered by him. We conclude that the sum of $500.00 should be awarded as additional attorney fees for this appeal. The judgment will be amended accordingly.

Defendant contends that the trial judge erred in setting the compensation payments at $95.00 per week. Defendant contends that the compensation rate should be based upon plaintiff’s wages of $3.09 per hour for a 40-hour week.

The record reflects that at the time of the accident, August 12, 1976, plaintiff was earning $3.09 per hour and worked 40 hours per week. Plaintiff contends that he was receiving $3.60 per hour when he terminated his work in 1977 due to the back problem. The trial judge made his calculations based upon $3.60 per week for a 40-hour week. This was error. The basis for the weekly compensation benefits is the wages received at the time of the accident. LSA— R.S. 23:1221(2) provides as follows:

“For injury producing permanent total disability of an employee to engage in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience, sixty-six and two-thirds per centum of wages during the period of such disability.” [Emphasis added]

“Wages” is defined in LSA-R.S. 23:1021(7), as amended by Act 583 of 1975. This provision reads as follows:

“ ‘Wages’ means average weekly wage at the time of the accident. The average weekly wage shall be determined as follows: (a) If the employee is paid on an hourly basis, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the injury or forty hours, whichever is greater; . . . .” [Emphasis added]

This provision clearly refers to “wages” received at the time of the accident. In view of the clear language in this amended statute, we cannot interpret this to mean that the disability payments are to be made according to “wages” received at a later time. Applying the rate of $3.09 per hour for 40 hours per week, the compensation rate shall be fixed at $82.40 per week.

The trial judge awarded the plaintiff 16 cents per mile for his traveling expenses in seeking medical attention. This court held in Jack v. Fidelity & Casualty Company of New York, 326 So.2d 584 (La. App.3rd Cir. 1976); writ refused 330 So.2d 295 (La.1976), that a . . claimant’s traveling expenses in seeking medical attention form part of his medical expense claim . . . .” That case allowed 15 cents per mile for these expenses. We find no manifest error in the trial judge’s award.

For the reasons set forth herein, the judgment of the trial court is amended by reducing the weekly compensation payments to $82.40 per week and increasing the attorney fees by $500.00 for services rendered on appeal. In all other respects the judgment of the trial court is affirmed. All costs are to be assessed against defendant.

AMENDED AND AFFIRMED.

      . The first complaints of back pain were made by plaintiff to Dr. Hanna in November of 1976.

      . $3.09 X 40 = $123.60 X 662A = $82.40.


author: SWIFT, Judge.

text:
    John W. CLARIUS, Jr., Plaintiff-Appellant, v. FOGLEMAN TRUCK LINES, INC., et al., Defendants-Appellees.
    No. 6822.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 1979.
    Neblett, Führer & Flournoy by George A. Flournoy, Alexandria, for plaintiff-appellant. .
    Gold, Little, Simon, Weems & Bruser, Edward E. Rundell, Alexandria, for defendants-appellees.
    Before CULPEPPER, GUIDRY and SWIFT, JJ.
   SWIFT, Judge.

This is a suit for workmen’s compensation benefits brought by the appellant, John W. Clarius, Jr., against his employer, Fogleman Truck Lines, Inc., and its insurer, United States Fidelity and Guaranty Company. The sole issue for determination on this appeal is whether or not the trial judge erred in his interpretation of LSA-R.S. 23:1221(4)(o) when he declined to award compensation to appellant thereunder for a slight loss of the function of his left arm because he was not disabled.

During the course of his employment with Fogleman on January 28, 1976, Mr. Clarius’ arm was pinned between a forklift and a trailer, resulting in a severe contusion to the left elbow and forearm. On February 11, 1976, Dr. L. D. Perdue, an orthopedic surgeon who was the attending physician, discharged appellant from his care with instructions to return to his usual work. The doctor did not feel there was any residual permanent physical impairment or disability at that time.

Appellant was also examined by Dr. R. K. Tischler, a chest surgeon, at the request of his attorney on March 21,1977. This physician found moderate tenderness and a depression defect in the left upper forearm, with a visible bulge in the muscle near the depression on contraction of the forearm, muscles. Dr. Tischler made no estimate of disability or prognosis and suggested this be done by an orthopedist.

Appellant was subsequently examined by Dr. John T. Weiss, an orthopedic surgeon, on June 28, 1977. Dr. Weiss diagnosed appellant’s injury as a tear of the flexor masses of the left forearm. It was his opinion that the injury would increase the appellant’s fatigue factor on usage, there was weakness of the three middle fingers of the left hand on contraction and there would be some soreness on excessive use of the arm. Because of these, the doctor concluded that Clarius had suffered a mild permanent impairment which he rated at 10% of the upper extremity, but he was able to continue doing the same work as before the accident.

Thus, the preponderance of evidence is to the effect that while it will not adversely affect appellant’s ability to perform his usual work, this job-related injury has resulted in a permanent 10% loss of the use or function of his left arm. Ventress v. Danel-Ryder, Inc., 225 So.2d 765 (La.App. 3 Cir.1969).

Because of his injury Clarius missed approximately two weeks of work and incurred medical expenses totaling $351.25. The compensation benefit of $75.62 which was due him for the second week of his temporary total disability and the medical expenses were paid by appellees.

In his written reasons for judgment rejecting appellant’s demands the trial judge said:

“The plaintiff suffered a crushing type injury to a muscle of the left forearm. The injured muscle healed leaving an obvious disfigurement as shown by a photograph which is in evidence. There is also a very, very slight loss of function. The evidence indicates that the plaintiff will suffer minimal increased fatigue upon prolonged heavy exertion. This injury is not severe enough to handicap the plaintiff in gaining employment nor will it impair his performing his normal duties. The Court does not feel that this injury is disabling within the meaning of R.S. 23:1221(4)(o) nor is there a serious permanent impairment within the meaning of R.S. 23:1221(4)(p).”

LSA-R.S. 23:1221 provides the benefits to which an employee is entitled for a com-pensable injury. The first three subsections deal with temporary total, permanent total and partial disability to perform work. Subsection (4) (a through p) provide benefits for the total or partial loss of specified members of the body, the permanent partial loss of the use or function of such members, a serious permanent disfigurement about the face or head and a serious permanent impairment of the usefulness of a physical function of a part of the body not otherwise specifically provided for.

We believe the trial judge was correct in concluding that subsection 1221(4)(p) was inapplicable, not only for the stated reason that there was no “serious” permanent impairment of appellant’s arm, but also because, as this court pointed out in regard to that subsection in Jack v. Fidelity & Casualty Co. of New York, 326 So.2d 584, 586 (La.App. 3 Cir. 1976), writ refused, 330 So.2d 295 (La.1976):

“It is well settled that no award can be made for disfigurement or impairment of a physical function as provided by the above quoted language where either the disability provisions or the specific injury schedule applies. See Malone, Louisiana Workmen’s Compensation, Sections 283 and 284, pages 362 et seq. and the numerous authorities cited therein.”

However, we find that he erred in not awarding benefits under subsection (4)(o) even though it was clear from the evidence that appellant’s permanent 10% loss of use or function of his arm will not disable him from performing his usual work.

Although no compensation was awarded because the plaintiff failed to establish a loss of use or function of the injured member, in Howard v. Tri-State Ins. Co., 359 So.2d 245, 246 (La.App. 2 Cir. 1978) the court said:

“For plaintiff to have a claim within the provisions of R.S. 23:1221(4)(e) and (o ) he need only establish that as a result of his compensable injury he sustained partial loss of the use or function of his hand. He is not required to establish disability to perform work. Babineaux v. Great American Insurance Company, 245 La. 718, 160 So.2d 591 (La.1964).

Babineaux involved an injury — caused surgical amputation of the distal joint of an employee’s left index finger which admittedly had no disabling effect on his ability to work. On finding that the plaintiff had suffered a 10% loss of the finger, the Supreme Court awarded compensation under R.S. 23:1221(4)(b), (o).

In a similar case where the plaintiff lost the first phalanx of the middle finger of his right hand, but was able to return to his usual work within a short time after the accident, this court held that he was entitled to compensation benefits under LSA— R.S. 23:1221(4)(o), subject to a credit for compensation previously paid for his temporary total disability. Manuel v. Travelers Insurance Company, 245 So.2d 519 (La.App. 3 Cir. 1971). The same result was reached in Johnson v. Insurance Company of North America, 236 So.2d 825 (La.App. 3 Cir. 1970). Similar awards have been made by our other courts of appeal in Pennywell v. Crawford, 262 So.2d 830, (La.App. 2 Cir. 1972); Beverly v. Phoenix of Hartford Insurance Co., 2A1 So.2d 269 (La.App. 4 Cir. 1971) writ refused, 259 La. 60, 249 So.2d 202 (La.1971); and Kimble v. Maryland Casualty Co., 360 So.2d 522 (La.App. 2 Cir. 1978).

We interpret LSA — R.S. 23:1221 as did the court prior to the 1975 amendment in Allen v. Insurance Company of North America, 216 So.2d 400, 402 (La.App. 4 Cir. 1968):

“If a specific disability can be shown, the question then arises as to what schedule of payments will be allowed under LSA-R.S. 23:1221. If the employee cannot perform work of any reasonable character, whether temporary total, permanent total, or partial, during the period of disability, then the provisions of subsections (1), (2), and (3) of LSA-R.S. 23:1221 apply. However, if it is shown that the employee is able to return to work irrespective of the injury, then compensation is allowed under one of the specific provisions of subsection (4) of the Act.”

The same interpretation has been given subsection 1221(4)(p). In Ventress, supra, this court said:

“The basis of the award under this statutory section is not disability. It is to allow a limited award for a permanent residual of a work-injury which does not produce disability but which will seriously hinder the employee for the rest of his life.”

And in Jack, supra, we quoted the following from Bergeron v. New Amsterdam Casualty Co., 243 La. 108, 141 So.2d 832 (1962):

“Since the section provides compensation for disfigurement or impairment unattended by disability, it transcends the historic base for workmen’s compensation: the diminution of earning capacity. However, it is not a catch-all clause, as contended by plaintiffs.” (Footnotes omitted)

From our study of the statute and the jurisprudence referred to above, we believe that workmen’s compensation benefits are to be awarded under R.S. 23:1221(4)(o) despite the fact that an employee’s loss of use or function of the member is not disabling, i. e., will not impair his ability to fully perform all aspects of his former occupation. We realize that such interpretation may be contrary to that expressed by the Court of Appeal, First Circuit, in Lee v. Royal Indemnity Co., 149 So.2d 606 (La. App. 1 Cir. 1963); Brewer v. Travelers Insurance Company, 244 So.2d 909 (La.App. 1 Cir. 1971); and Sallinger v. Sachse Electric Company, 255 So.2d 159 (La.App. 1 Cir. 1971), wherein small percentage permanent impairments of legs and a finger were held to be “non-functional” because they did not affect the’ respective employee’s ability to perform his former occupation. However, we feel obliged to follow the other decisions referred to above and particularly the Supreme Court case of Babineaux v. Great American Insurance Co., supra.

In this case the appellant is entitled to weekly benefits amounting to 10% of 66%% of his weekly wage of $113.44. However, as this amounts to $7.56 and the minimum for weekly benefits under LSA-R.S. 23:1202 at the time of this accident was $25.00, the award will be in the latter amount for a period of 200 weeks, subject to a credit of $75.62 for compensation previously paid for temporary total disability.

For the reasons assigned, the judgment of the lower court is reversed and we render judgment herein in favor of the plaintiff, John W. Clarius, Jr., and against the defendants, Fogleman Truck Lines, Inc. and United States Fidelity and Guaranty Company, in solido, for workmen’s compensation benefits in the sum of $25.00 per week for a period of 200 weeks from January 28, 1976, less a credit of $75.62 for compensation previously paid, together with legal interest on each unpaid instalment from delinquency until paid, and all costs of this suit, including appeal. The expert witness fee of Dr. John T. Weiss, is fixed in the sum of $100.00 and taxed as costs.

REVERSED AND RENDERED.

      . The pertinent provisions of LSA-R.S. 23:1221(4) (a through p) are:
      “(4) In the following cases, the compensation shall be as follows:
      ******
      (f) For the loss of an arm, sixty-six and two-thirds per centum of wages during two hundred weeks.
      ******
      ■ (o) In all cases involving a permanent partial loss of the use or function of the members mentioned hereinabove, compensation shall bear such proportion to the amounts named herein for the total loss of such members as the disability to such members bears to the total loss of the member, provided that in no case shall compensation for an injury to a member exceed the compensation payable for the loss of such member.
      * * * * * *
      (p) In cases not falling within any of the provisions already made, where the employee is seriously permanently disfigured about the face or head, or where the usefulness of a physical function is seriously permanently impaired, the court may allow such compensation as is reasonable and in proportion to the compensation hereinabove specifically provided in the cases of specific disability, not to exceed sixty-six and two-thirds per centum of wages during one hundred weeks.”


author: GUIDRY, Judge.

text:
    Mrs. Leroy FAUL et al., Plaintiffs-Appellees, v. SUPERINTENDENT OF EDUCATION, Louis F. Gaudet and the School Board of Jefferson Davis Parish, Defendants-Appellants.
    No. 6828.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 1979.

      Rankin & Yeldell by Stephen J. Katz, Bastrop, for defendants-appellants.
    Tate & Tate by Paul C. Tate, Mamou, for plaintiffs-appellees.
    Before CULPEPPER, GUIDRY and SWIFT, JJ.
   GUIDRY, Judge.

This appeal questions the correctness of a judgment making peremptory an alternative writ of mandamus which compels certification by the Jefferson Davis Parish Superintendent of Education, Louis F. Gaudet, of petitions submitted to him requesting the institution of a French language program in certain schools within that parish pursuant to LSA-R.S. 17:27s.

On July 6, 1978 and July 20, 1978, Mrs. Faul presented petitions to the Jefferson Davis Parish School Board, signed by approximately seven hundred heads of households, requesting the instruction of the French language at Welsh Elementary School, Ward Elementary School, Hathaway High School, Lacassine High School, Lake Arthur Elementary School and Fen-ton High School. Superintendent Gaudet wrote a letter to the Jefferson Davis Parish School Board in which he stated that the petitions did not contain the requisite number of signatures to mandate institution of the language program. Mrs. Faul brought suit seeking a writ of mandamus to compel Superintendent Gaudet to certify the petitions in the manner set forth in LSA— 17:273.

Robert F. Prather, a member of the Jefferson Davis Parish School Board, intervened, alleging that LSA-R.S. 17:273 was unconstitutional.

After a hearing, the trial court concluded that LSA-R.S. 17:273 was constitutional and rendered judgment making peremptory the alternative writ of mandamus compelling Superintendent Gaudet to perform the following acts:

. . to determine as to each school the number of households of students attending the school and certify the total number of names on the petition or petitions presented to the school board from each school, indicating the number of signatures certified as valid.
You are further ordered to keep a record of each signature not counted as valid, together with a notation of your reasons for not counting it as valid.
You are further ordered to present the certified petition to the Jefferson Davis Parish School Board . . . ”

Intervenor Robert Prather and Superintendent Gaudet have appealed this judgment, urging the following assignments of error:

1. Plaintiff-Appellee does not have a right of action under LSA-R.S. 17:273 as she is not the head of a household.

2. Mandamus should not lie in this case as the acts sought to be compelled are not purely ministerial in nature.

3. LSA-R.S. 17:273 is unconstitutional.

4. LSA-R.S. 17:273 is inoperable because of the lack of proper funding provisions.

I. DID MBS. FAUL HAVE STANDING TO BRING SUIT UNDER LSA-R.S. 17:273?

LSA-C.C.P. Article 681 provides:

"Except as otherwise provided by law, an action can be brought only by a person having a real and actual interest which he eisserts.”

Appellants urge that since LSA-R.S. 17:273 permits only the head of a household to sign a petition seeking to institute a second language program in the parish public schools, Mrs. Faul (who is not the head of her household) does not have a right of action under the statute to have the petitions certified. We disagree.

In Melancon v. Police Jury of Lafayette, 301 So.2d 715 (La.App. 3rd Cir. 1974) this court was faced with the problem of determining when a citizen has standing to seek a writ of mandamus to compel action on the part of a public official. Therein we stated:

“First, we must determine whether plaintiff has alleged a special interest in the ruling of the Planning Commission such that he had a right to bring this suit. A citizen and a taxpayer cannot seek mandamus to compel the performance of a duty by a public board, officer or commission, unless it is first established that he possesses a special interest in having the law enforced, which interest sets plaintiff apart from the general public as a whole. Bussie v. Long, 286 So.2d 689 (La.App. 1st Cir. 1978), writ refused 288 So.2d 354 (La.1974).” at page 717.

Although under the statute it is only the head of a household who may sign a petition seeking to institute a second language program, it is nevertheless feasible that one who would not qualify as the head of a household could have a special and peculiar interest in having such a program .instituted. The record reveals that Mrs. Faul has three children attending the public schools of Jefferson Davis Parish. They attend Welsh Elementary School, one of the schools represented by the petitions in question. She would like to have her children participate in a second language program. However, Superintendent Gaudet contends that the number of signatures on the submitted petitions is inadequate to justify instituting the program, and Mrs. Faul’s children have been thereby precluded from participating in such a program. As well, the record reveals that Mrs. Faul has been actively promoting interest in the community for this language program, and has been instrumental in getting signatures on these petitions. We find plaintiff’s interest in this matter to be actual, direct and tangible, and therefore that she has standing to bring the instant suit.

II. ABE THE ACTS SOUGHT TO BE COMPELLED PURELY MINISTERIAL IN NATURE?

Appellants contend that the writ of mandamus issued in this case seeks to compel Superintendent Gaudet to perform acts which are within his discretion to perform. As a mandamus will not lie to compel a public official to perform a discretionary act, it is argued that the issuance of the writ in this case was improper.

LSA-C.C.P. Article 3863 provides:

“A writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law, or to a former officer or his heirs to compel the delivery of the papers and effects of the office to his successor.”

Appellants urge that in order for Superintendent Gaudet to certify whether the number of signatures on the petitions meets the statutorial requirements, it is necessary that he determine which students are attending each of the affected schools and who is the head of each household represented on the petitions. It is argued that making these determinations involves the use of discretion, thereby placing compliance with the statute beyond the realm of a ministerial duty. We find that adherence to LSA-R.S. 17:273 is not a matter of discretion on Superintendent Gaudet’s part. The statute provides in part:

“. . . (the petition) SHALL contain the signatures of at least twenty-five percent of the heads of households of students attending a particular school within the jurisdiction of the parish or city school board. The superintendent of the parish or city schools SHALL determine the required number of signatures needed for each school and SHALL certify whether or not a petition contains the necessary number of signatures.” (emphasis added)

Superintendent Gaudet’s duty is set forth in unmistakable terms by the statute. He has no discretion in determining whether the requisite number of signatures has been met, but must merely insert statistics into the formula provided by law. Likewise it is not within his discretion to certify that a petition does not have the requisite number of signatures if, in fact, the statutory formula has been met. We find that Superintendent Gaudet’s compliance with LSA-R.S. 17:273 involves purely a ministerial act on his part and that mandamus will lie to compel performance of this act.

III. IS LSA-R.S. 17:273 UNCONSTITUTIONAL?

On appeal, several bases for the unconstitutionality of LSA-R.S. 17:273 are urged:

a) The statute enables a minority (twenty-five percent of the heads of households) to control the majority and thereby denies due process.

b) The statute unlawfully delegates legislative power.

c) The statute usurps power of the local school board.

In City of Natchitoches v. State of Louisiana, 221 So.2d 534 (La.App. 3rd Cir. 1969) this court set forth the general rule to be applied in reviewing the constitutionality of a statute:

“The general rule is that every statute is presumed to be constitutional, and the court is bound to uphold the constitutionality of a statute when it is reasonably possible to do so. Every consideration of public need and public policy upon which the legislation could rationally have been based should be weighed by the court and the statute should be upheld as being valid and enforceable unless it clearly is inconsistent with provisions of the state or federal constitutions. Michon v. Louisiana State Board of Optometry Examiners, 121 So.2d 565 (La.App.2d Cir. 1960); Police Jury of Parish of St. Charles v. St. Charles Parish Waterworks District No. 2, 243 La. 764, 146 So.2d 800 (1962).” at p. 544.

Prefacing our review of LSA-R.S. 17:273 with the above stated presumption of constitutionality, we next consider the specific issues raised by appellants:

A) DOES THE STATUTE DENY DUE PROCESS BY ENABLING A MINORITY TO CONTROL THE MAJORITY?

Appellants urge that the petitioning procedure provided for in LSA-R.S. 17:273 enables 25% of the heads of households of students attending a school to impose their will upon the other 75% and thereby denies due process to the majority. The terms of the statute itself, however, expressly refute appellant’s contention in that LSA-R.S. 17:273(B)(2) provides in pertinent part:

". . . Any student shall be exempted from the second language program upon request of the parent or guardian ...”

Under the statute, if only 25% of the heads of the households of students attending a given school wish to initiate the second language program, only that number need enroll their children in the program. There is no statutorily mandated requirement for any student to participate in the program once it is instituted.

Counsel for appellants cite as authority for their position the case of Higgins v. Village of Jean Lafitte, 306 So.2d 79 (La. App. 4th Cir. 1974) writ denied 309 So.2d 347 (La.), certiorari denied, 423 U.S. 864, 96 S.Ct. 123, 46 L.Ed.2d 93. In Higgins, the court questioned the constitutionality of LSA-R.S. 33:52, which called for the governor to issue a proclamation of incorporation on receipt of a petition signed by twenty-five percent of the electors in the affected area owning twenty-five percent in value of the land in the affected area. Under LSA-R.S. 33:52, once the requisite number of signatures were presented to the governor on a petition, any interested citizen could file suit and have the reasonableness of incorporation judicially reviewed. On review of the constitutionality of this statute, the court did conclude that but for the proviso enabling an interested person to contest the proposed incorporation in court, the statute would have been patently unconstitutional. However, the cited case is clearly distinguishable from the instant case. In Higgins, if it were not for the review provision, a 25% minority could petition to have an area incorporated and every person living within that area would be affected without a majority voice in the matter. As aforestated, LSA-R.S. 17:273 affects only those persons who choose to be affected by it, and simply gives the affected school an expanded school curriculum to better serve the particular needs of its students. We find that LSA-R.S. 17:273 does not deprive any person of due process of law by enabling the minority to impose its will upon the majority.

Appellants likewise urge that enforcement of this statute would enable a 25% minority to institute a language program that would ultimately bankrupt the local school board. We find no evidence in the record to support appellant’s contention. We do not even find evidence in the record upon which we might base an estimate of the actual cost of implementing this program. We therefore find no merit whatsoever in appellants’ allegation that the school board would be rendered bankrupt by expanding the curriculum of its schools to offer a second language program.

B) DOES LSA-R.S. 17:273 UNLAWFULLY DELEGATE LEGISLATIVE POWER?

Appellants urge that by enacting this statute, the legislature has enabled private individuals to exercise legislative powers. We do not agree. LSA-R.S. 273(A) provides in part:

“Commencing with the 1976-1977 school year, each parish school board and city school board in the state is HEREBY AUTHORIZED TO ESTABLISH AS A PART OF THE GENERAL CURRICULUM OF INSTRUCTION THE TEACHING OF A SECOND LANGUAGE.” (Emphasis added)

Clearly the legislature has authorized the institution of the second language program, and has merely provided a means by which to determine when community interest has reached such a point as to make the program worthwhile and efficient. The school board has been given the authority to begin a language program in its schools, whether or not it is presented with a petition requesting it to do so. The purpose of the petitioning procedures provided for in the statute is apparently to enable a given community with a particular interest in having such a program instituted a means by which to compel the school board to exercise the authority which the legislature has given it. However, it is not the act of petitioning for the language program which gives the school board the authority to institute the program. Therefore, we do not find that there has been any delegation of power on the part of the legislature to those individuals petitioning for the institution of a language program.

Whereas we do not find that LSA-R.S. 17:273 delegates legislative powers, there are nevertheless areas in which a legislative body may delegate its authority, as long as it provides guidelines sufficiently clear to guarantee that the legislative will is followed. State v. Aicklin, 167 La. 456, 119 So. 425 (1928); Higgins v. Village of Jean Lafitte, supra. Even if there had been a delegation of authority on the part of the legislature by the enactment of LSA-R.S. 17:273, the terms of the statute clearly indicate the intention of the legislature to make a second language program available in schools where special interest for such a program exists. The guidelines provided in the statute for the carrying out of the legislative will are concise. If the statute delegates authority, clearly such a delegation is reasonable and appropriate in this case.

C) DOES LSA-R.S. 17:273 USURP POWERS OF THE LOCAL SCHOOL BOARD?

LSA-Const. Article 8, § 1 provides:

“The legislature shall provide for the education of the people of the state and shall establish and maintain a public educational system."

The legislature has been empowered by our constitution to provide for the education of-persons in this state. The powers of the parish school board are enumerated in LSA-R.S. 17:81. Formation of curriculum is not one of the enumerated powers of the school board. In 68 Am.Jur.2d Schools, Sec. 283 it is stated:

“The fundamental power to select the system of instruction and course of study to be pursued in the public schools is in the legislature, and its mandate is final and binding on all persons.”

We find that the general grant of power found in LSA-Const. Art. 8, § 1 encompasses the right on the part of the legislature to select the courses of study for schools in this state. Therefore, we find that there has been no usurpation of the school board’s authority by LSA-R.S. 17:273.

We find that LSA-R.S. 17:273 is constitutional, and find no merit to appellants’ assignments of error.

IV. IS LSA-R.S. 17:273 INOPERABLE BECAUSE IT IS NOT FUNDED?

Appellants allege that the statute is inoperable because there are no funds available to institute a second language program in the schools petitioning for such a program. That portion of the statute which provides for funding states:

“8. (4) The cost of implementing a second language program at the secondary level (junior and/or senior high schools) will be borne by the local school system. The cost of implementing second language programs in the elementary grades over and beyond the base salary of regularly assigned teachers will be paid from state funds appropriated as a part of the total education budget of the State Department of Education. ”

We are unable to conclude from the evidence in the record that there are no funds available from any source to initiate these programs. No evidence was produced to establish that the existing faculty in the affected schools would be unable to teach the appropriate courses, nor that the total education budget of the State Department of Education is unable to aid the funding of these programs in any way as provided for in the statute.

We find that there is insufficient evidence from which to conclude that the language program provided for in LSA-R.S. 17:273 cannot be initiated because there is no money available to do so. We therefore find that the statute is not inoperable.

For the above and foregoing reasons, the judgment of the trial court is affirmed. The costs of this appeal are to be paid by appellants.

Affirmed.

CULPEPPER and SWIFT, JJ., concur in the result.

      . LSA-R.S. 17:273 provides:
      § 273. Second languages; teaching in public schools
      A. Commencing with the 1976-1977 school year, each parish school board and city school board in the state is hereby authorized to establish as a part of the general curriculum of instruction the teaching of a second language. The second language curriculum shall be so established as to include a program extending upward through all grades, commencing in the first grade and extending upwards to the twelfth grade, in a well articulated, sequential manner so as to afford all school children in the state the opportunity of attaining proficiency in a second language.
      B. (1) If a parish or city school board does not establish a second language program by May 30, 1976, such a program shall be required upon presentation of a petition requesting the instruction of a particular second language. The petition shall be addressed and presented to the parish or city school board and shall request the instruction to be in a particular school. It shall contain the signatures of at least twenty-five percent of the heads of households of students attending a particular school within the jurisdiction of the parish or city school board. The superintendent of the parish or city schools shall determine the required number of signatures needed for each school and shall certify whether or not a petition contains the necessary number of signatures. Parents may petition to initiate second language programs in elementary schools, junior high schools, and senior high schools.
      (2)Upon receiving a certified petition, the parish or city school board shall establish the teaching of the designated second language in said school as a part of the general curriculum of instruction. The instruction of the second language shall be developed to in-elude the teaching of the language in each grade of said school in a well articulated and sequential manner so as to afford to the student the opportunity of attaining proficiency in the designated second language. Any student shall be exempted from the second language program upon request of the parent or guardian. The parent shall direct this request to the principal of the school or to the superintendent of the parish or city school system.
      (3) Instructors in a second language would be regularly assigned certified teachers at the secondary level or certified second language specialist teachers in the elementary grades one through eight, itinerant in one or more schools, and/or foreign associate teachers selected and approved by the State Department of Education in cooperation with other appropriate state agencies. A second language specialist teacher with a full schedule of second language classes would not be counted in the pupil-teacher ratio in the school of assignment, but would be counted as an additional teacher.
      (4) The cost of implementing a second language program at the secondary level (junior and/or senior high schools) will be borne by the local school system. The cost of implementing second language programs in the elementary grades over and beyond the base salary of regularly assigned teachers will be paid from state funds appropriated as a part of the total education budget of the State Department of Education.
      C.The State Board of Elementary and Secondary Education shall establish guidelines, regulations, and policies for the implementation of a comprehensive curriculum in a second language in a well articulated sequential manner in order to carry out the intent of this Section.

      . Suit was initially brought against Superintendent Gaudet and the Jefferson Davis Parish School Board. The School Board was dismissed from the suit upon its exception of prematurity.


author: DOMENGEAUX, Judge.

text:
    COTTON BROTHERS BAKING COMPANY, INC., Plaintiff-Appellant, v. Alton BETTEVY, Defendant-Appellee.
    No. 6829.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 1979.

      Stafford, Trimble, Randow & Smith by John C. Pickels, Alexandria, for plaintiff-appellant.
    Alton Bettevy in pro per.
    James A. McGraw, Baton Rouge, for defendant-appellee.
    Before DOMENGEAUX, FORET and STOKER, JJ.
   DOMENGEAUX, Judge.

This suit involves the failure to cancel wage credits earned by a discharged employee by the Department of Employment Security under La.R.S. 23:1601(2).

Defendant, Alton Bettevy, worked as a driver for plaintiff, Cotton Brothers Baking Company, Inc., of Alexandria, Louisiana, for twenty-one years. On April 22, 1977, while on duty for Cotton Brothers, he was arrested by the Bunkie Police Department and charged with driving while intoxicated. He was also issued a summons for using the wrong lane of traffic and for disturbing the peace. A photoelectric intoximeter test was administered at the time of arrest. Plaintiff had a reading of 0.215 percent.

After notification of the arrest, the Distribution Superintendent for Cotton Brothers, Frank Goodwin, discharged defendant from his position. Subsequent to his termination of employment defendant pleaded guilty to and was fined for the charges involving wrong lane usage and disturbing the peace. The charge of driving while intoxicated did not proceed to trial.

Defendant applied for unemployment compensation benefits with the Office of Employment Security, pursuant to La.R.S. 23:1471, et seq. The initial determination made by the agency was to the effect that defendant was not disqualified from benefits because the charge of misconduct connected with his employment was unsubstantiated.

This determination was timely appealed by the employer, and a hearing was held before an Appeals Referee, pursuant to La. R.S. 23:1629. The Appeals Referee made the following findings of fact, which we quote in entirety:

“FINDINGS OF FACT: The claimant had worked for the named employer for twenty-one years as a Truck Driver for the rate of pay of $200.00 per week. He was scheduled to work from 6:00 P. M. to 1:00 A. M., five days per week, with Tuesday and Saturday off. He was discharged from his job by Mr. Frank Goodwin, and the reason given was that he had been arrested for DWI, driving in the wrong lane and disturbing the peace. Mr. Goodwin received a call on Friday night, April 22, 1977, at his home where [sic] the claimant stated he was in the city jail at Bunkie, Louisiana, and wanted him to come down and pick up the company equipment and also get him out of jail. At this time Mr. Goodwin went to Bunkie and after reading the Officers’ report determined from the arrest report that he had cause to dismiss the claimant. Mr. LaBorde, the arresting officer, is qualified to test people to determine if [sic] the amount of alcohol that they have and whether they are considered legally drunk. The tests reads .10 is the legal limit for having alcohol on the breath before you can be charged for driving while intoxicated. The claimant’s reading was .21, which is well above the legal limit. The claimant was held over and appeared before Judge Lee and paid a fine of $37.50 for disturbing the peace and $37.50 for driving in the wrong lane and Judge Lee dropped the DWI charge. However, the DWI charges appear on the report given by the officers. The claimant knew he could be discharged for driving while under the influence of alcohol. This was the only reason given for the claimant’s discharge.”

The Appeals Referee changed the agency determination and found that the claimant was disqualified from benefits under La. R.S. 23:1601(2). He also cancelled defendant’s wage credits, pursuant to the same statute.

A timely appeal was filed by the claimant with the Board of Review, pursuant to La. R.S. 23:1630. After reviewing the evidence, the Board of Review affirmed the disqualification of benefits, but reversed the Appeals Referee insofar as he had cancelled wage credits earned by the employee with Cotton Brothers.

Cotton Brothers timely appealed the decision of the Board of Review to the Thirty-Fifth Judicial District Court, pursuant to La.R.S. 23:1634, contending error in that part of the Board of Review’s decision which had ordered defendant’s wage credits restored. The trial judge affirmed the Board of Review. The employer appeals to this Court.

The sole issue raised on appeal is whether the Board of Review was correct in refusing to cancel the wage credits of the claimant.

At the outset, we note that the scope of our appellate review in cases arising under the Louisiana Employment Security Law is expressly limited by statute. In unemployment compensation cases, our jurisdiction is confined to questions of law, and the findings of the Board of Review as to facts, if supported by sufficient evidence, and in the absence of fraud, is conclusive. La.R.S. 23:1634; Lingo v. State of Louisiana, Department of Employment Security, 364 So.2d 1367 (La.App. 3rd Cir. 1978).

La.R.S. 23:1601 sets forth the circumstances under which a claimant for unemployment compensation benefits can be disqualified from receiving such benefits. Particularly applicable to this case is subsection 2 of the statute, which is concerned with discharge for misconduct. The subsection states:

“An individual shall be disqualified for benefits:
(1) • • • .
(2) If the administrator finds that he has been discharged for misconduct connected with his employment. Such disqualification shall continue until such time as the claimant (a) can demonstrate that he has been paid wages for work equivalent to at least ten times his weekly benefit amount following the week in which the disqualifying act occurred and (b) was not left his last work under disqualifying circumstances. In addition, if the administrator finds that such misconduct has impaired the rights, damaged or misappropriated the property of or has damaged the reputation of a base period employer, then the wage credits earned by the individual with the employer shall be canceled and no benefits shall be paid on the basis of wages paid to the individual by such employer.

As can be seen from a simple reading of the sub-section, there are two levels of consequences which can flow following discharge from a position by virtue of misconduct. First, an employee is disqualified from receiving benefits simply by virtue of misconduct. Second, if the misconduct is more severe, and thereby impairs the rights, damages or misappropriates the property of, or damages the reputation of the employer, then, in addition to disqualification from benefits, the wage credits earned by the employee with the employer are can-celled.

The argument of Cotton Brothers is that there was legally sufficient evidence at the hearing held before the Appeals Referee to find that the claimant’s misconduct “has impaired the rights, damaged or misappropriated the property of or has damaged the reputation of” Cotton Brothers Baking Company, Inc. It thus contends that the Appeals Referee was correct in recognizing his mandatory duty to cancel wage credits, and that the Board of Review was incorrect in reinstating wage credits.

We do not feel that the Appeals Referee was justified in cancelling the wage credits. We have reviewed the transcript of the evidentiary hearing before the Appeals Referee, cognizant of our limited scope of review, and conclude that there was support for each of the findings of fact made by him. However, a simple reading of these factual conclusions, previously quoted earlier in our opinion, reveals that no finding was made which would require cancellation of wage credits earned by the claimant. Obviously, the Board of Review determined that the Appeals Referee erroneously applied the wage cancellation provision to the facts of this case and, accordingly, reversed him on this issue. This action was affirmed by the trial court, and we now affirm it on appeal. Under the facts, as presented in this case, there simply is no mandatory duty to cancel wage credits because the second level of misconduct, which requires such cancellation, has not been reached.

This case, in essence, is one of an employee intoxicated on the job. Fortunately, there was no accident or damage to company property involved. There was no theft. With regard to damage of the reputation of the employer, there has been no showing that Cotton Brothers’ reputation, in fact, was hurt, simply because one of its drivers was arrested while driving a company vehicle.

Cotton Brothers attempts to find authority for reversal in the Supreme Court case of Dameron — Pierson Company v. Bryant, 245 La. 208,157 So.2d 886 (1963). In that case, the Supreme Court affirmed the judgment of the First Circuit, which had affirmed the trial court’s reversal of the Board of Review’s refusal to cancel a claimant’s wage credits. The agency determination of facts in that case was that the termination of employment was due to drinking on the job and becoming involved in an automobile wreck while operating a company vehicle. The Supreme Court stated that, having made such a determination, the administrator was under a mandatory duty under La. R.S. 23:1601(2) to cancel the claimant’s wage credits.

Clearly, the Bryant case is distinguishable from the case presently before us. In our case, there was no finding of fact which mandated the application of the wage cancellation provision in the statute. In Bryant, there was an accident involving a company vehicle. This, purely and simply, is the distinguishing factor. We thus hold that the trial judge was correct in refusing to upset the decision of the Board of Review. The claimant’s wage credits should not be cancelled.

For the above reasons the judgment of the District Court is affirmed. All costs are assessed against the plaintiff-appellant, Cotton Brothers Baking Company, Inc.

AFFIRMED.

      . In Louisiana, a person whose blood contains 0.10 percent by weight of alcohol is presumed to be under the influence of alcohol, subject to certain restrictions. La.R.S. 32:661.


author: WATSON, Judge.

text:
    Georgia SMALL, Plaintiff-Appellant, v. J. C. PENNEY, INC., Defendant-Appellee.
    No. 6836.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 1979.
    Writ Refused March 23, 1979.

      Antoon, Dalrymple & Beck, Joseph T. Dalrymple, Alexandria, Gravel, Schley & Van Dyke, James S. Gravel, Alexandria, for plaintiff-appellant.
    James A. Bolen, Jr., of Bolen, Halcomb & Erwin, Alexandria, for defendant-appellee.
    Before WATSON, CUTRER and DOU-CET, JJ.
   WATSON, Judge.

Plaintiff, Georgia Small, has appealed from the trial court’s dismissal of her suit for workmen’s compensation benefits against her former employer, J. C. Penney, Inc. In May of 1977, Ms. Small was employed in J. C. Penney’s Alexandria, Louisiana store. On May 31, a Tuesday, her day off, plaintiff suffered a severe cerebrovas-cular hemorrhage. As a result of this stroke, Ms. Small is unquestionably disabled. The only issue on appeal is whether the trial court erred in holding that plaintiff’s “vascular accident” (TR. 80) was unrelated to her last day at work, Monday, May 30.

FACTS

Ms. Small had been promoted from cashier to salesperson to manager’s assistant in the men’s department. She said this last position caused additional stress, which tended to give her headaches. However, she had missed only one day of work because of illness during four years at Penney’s. It was stipulated that she earned $108.50 a week. Ms. Small, age 36 at the time, had had a regular checkup by her family physician, Dr. V. F. Chicóla, three weeks before her stroke, which she passed. Ms. Small testified that she developed a headache about three or four o’clock on Monday at work and felt cold. She still had the headache when she got home from work around seven and she went to bed. (TR. 134). She got up on Tuesday morning and she still had the headache. (TR. 136). Around noon on Tuesday, the headache became unusually severe and she told her husband she needed to see a doctor. Then she passed out and was taken to the hospital.

Plaintiff’s co-worker, Janice Staton, was vague about plaintiff’s last day at work. Although she did not recall Ms. Small complaining of a headache, her testimony was only that she did not remember such a complaint. Plaintiff’s supervisor, Kent Williamson, testified unequivocally that Ms. Small made no complaints of pain on May 30, but he described her as an uncomplaining person and a good worker. Another co-employee, Alfred James Babb, also said Ms. Small was not a complainer. Neither Babb nor Sam Keown, a Penney’s manager, were questioned about whether or not Ms. Small had any complaints of pain or headache on her last day at work.

Sharon Small testified that her mother came home from work on Monday afternoon and said she had a headache. Ms. Small immediately went to bed and told her daughter on Tuesday morning that she still had the headache. According to Sharon, her mother had said about a month before that she was going to quit the job at Penney’s because it involved too much stress and pressure.

On Tuesday, May 31, Ms. Small was taken to the emergency room at Rapides General Hospital where she was seen by Dr. Chicóla. Ms. Small was semi-comatose, but Dr. Chicóla was told she had had a headache for a couple of days preceding the stroke and had been in bed since the previous evening, feeling badly. (TR. 108). Ms. Small was admitted to the intensive care unit and seen by a neurosurgeon, Dr. Danny L. Dodson. She remained in critical condition for two months.

Dr. Chicóla testified as an expert in family practice that, because of a congenital arterial weakness, any exertion could have caused Ms. Small’s stroke. In his opinion, Ms. Small could have had premonitory symptoms of headache, dizziness and discomfort for several days before her stroke. Also, according to this treating doctor, her intracranial leakage or bleeding could have started the previous day, or even two or three days before she passed out. Although most strokes occur suddenly and dramatically, Dr. Chicóla felt that Ms. Small’s “. . . probably came on gradually . . .” (TR. 103). He thought she possibly had bleeding the day before she came to the hospital because, at the time of her admission, “. . . she had a little dilatation of the left pupil, she had an early Babinski and an early weakness of the left arm and left leg.” (TR. 104). These localized symptoms indicate the passage of a certain amount of time. Ms. Small’s type of aneurysm was not limited to one solitary vessel but included a mass of vessels. The deformity is too massive for surgical correction.

Dr. Craig, an expert in internal medicine, confirmed that Ms. Small’s stroke was of an unusual type. He testified that a headache a day before a hemorrhage would be considered by him to be “. . . part and parcel to the same illness.” (TR. 118).

After Ms. Small’s discharge from the hospital, she continued to have severe headaches and spastic paralysis of the left leg and left arm. Her prognosis is poor. Any slight stress could cause further neurological damage because of her congenital arter-iovenous malformation. Ms. Small had previously had a stroke at the age of eleven, which left no significant residual symptoms.

CONCLUSION

The rupture of an aneurysm, cerebral vascular accident or stroke is an injury by accident within the meaning of the workmen’s compensation statute. Gilbert v. Bituminous Casualty Corp., 344 So.2d 86 (La.App. 2 Cir. 1977); LeLeux v. Lumbermen’s Mutual Insurance Company, 318 So.2d 15 (La., 1975).

The question presented is whether the vascular accident for which Ms. Small was hospitalized around noon was one arising out of and in the course of her employment on the preceding day. LSA-R.S. 23:1031. In view of Dr. Chicola’s testimony that the slightest exertion could have caused Ms. Small’s stroke, there is more than a possibility that her underlying condition was aggravated by her employment. The preponderance of the evidence establishes a work related accident. While Ms. Small’s coworkers could not confirm complaints of pain, their testimony is not in direct conflict with that of Ms. Small, her daughter and Dr. Chicóla. See Cadiere v. West Gibson Products Company, Inc., et aL, 364 So.2d 998 (La., 1978). Also see LeLeux, supra; Roussel v. Colonial Sugars Company, 318 So.2d 37 (La., 1975); and Jacob v. God-chaux-Henderson Sugar Co., Inc., 350 So.2d 274 (La.App. 4 Cir. 1977) writ denied 352 So.2d 238. Compare Quine v. Ideal Cement Co., 351 So.2d 1303 (La.App. 1 Cir. 1977) writ denied 353 So.2d 1035. The testimony of Ms. Small, which was corroborated by her daughter, the history given to Dr. Chi-cóla, the latter’s testimony, and that of Dr. Craig, was that her vascular accident had its commencement during her working hours on Monday. See Fields v. Sperry Rand Corp., 343 So.2d 339 (La.App. 2 Cir. 1977) writ denied 345 So.2d 902, 903. Certainly, neither Ms. Small nor her daughter were likely to have fabricated her emergency room history; neither could have then known that the legal consequences would differ if the illness or accident began at work. An analogous case to this one is Barnes v. City of New Orleans, 322 So.2d 821 (La.App. 4 Cir. 1975) writ denied 325 So.2d 584, where a clerical employee who experienced chest pains at work one day and died the following day at home in bed from a heart attack was found to have suffered an accident arising out of and in the course of his employment. Here, the only fair inference to be drawn from the testimony is that Ms. Small began to have intracranial bleeding on May 30, which culminated in a massive hemorrhage around noon of the following day. Ms. Small’s cerebral vascular accident commenced during her working hours at J. C. Penney’s on May 30 and thus was one arising out of and in the course of her employment.

The trial court, in reasons for judgment, indicated that the type of stroke suffered by Ms. Small is a sudden and dramatic occurrence, but this was not in fact the testimony of Dr. Chicóla. His testimony was that most strokes are sudden and dramatic but that Ms. Small’s was of an unusual type and probably commenced gradually. The trial judge erred in requiring, as he apparently did in deciding against plaintiff, that Ms. Small prove that she had a dramatic and sudden “stroke” at work. This requirement is contrary to the medical evidence. Consequently, the trial court was clearly wrong in deciding that Ms. Small did not suffer a work related accident. There is no question that she is totally disabled.

For the reasons assigned, the judgment of the trial court is reversed.

It is ordered, adjudged and decreed that there be judgment herein in favor of plaintiff, Georgia Small, and against the defendant, J. C. Penney, Inc., for workmen’s compensation benefits of $72.33 a week, during the period of her disability, together with medical benefits as provided by law. Penalties and attorney’s fees are denied. All costs are taxed to defendant-appellee, J. C. Penney, Inc.

REVERSED AND RENDERED.


author: STOKER, Judge.

text:
    Karen C. MAUTHE, Plaintiff-Appellant, v. Susan L. GIBSON et al. and State of Louisiana Through Department of Highways, Defendants-Appellees.
    No. 6837.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 1979.
    Writ Refused March 23, 1979.

      Carey D. Bearden, Lafayette, and Leonard A. Radlauer, New Orleans, for plaintiff-appellant.
    Woodrow Wyatt, Baton Rouge, for defendants-appellees.
    Before DOMENGEAUX, SWIFT and STOKER, JJ.
   STOKER, Judge.

This is a suit for personal injuries arising from an automobile collision. The issue presented by this case is whether the Department of Highways was negligent in either failing to institute protective measures for left turning vehicles or in failing to properly inspect the intersection at which the collision occurred.

Plaintiff, Karen Mauthe, was injured in Lafayette at the intersection of Johnston (a major thoroughfare) and Jefferson Streets. The automobile in which she was riding as a guest passenger was struck as its driver attempted to negotiate a left turn off of Johnston onto Jefferson. As the car crossed the middle of the on-coming traffic lane it was struck broadside, the impact throwing Ms. Mauthe from the car and severely injuring her. It is plaintiff’s contention that the traffic lighting system at this intersection was so designed as to cause a trap for the unsuspecting and that the Department of Highways should be held liable for this faulty system. More particularly, the plaintiff alleged that the defendant breached its duty in failing to provide protective measures for left turning vehicles proceeding from Johnston to Jefferson, or for not prohibiting all left turns at that intersection. After trial on the merits, the court held that the failure of the Highway Department to install a left turn phase for southbound traffic did not amount to negligence. The District Court found that the sole cause of the accident was the negligence of Susan L. Gibson, the driver of the car in which plaintiff was riding.

ISSUE

As stated above, the issue presented by this case is whether the Department of Highways was negligent in either failing to institute protective measures for left turning vehicles or in failing to properly inspect the intersection.

FACTS

The trial record established that the accident in which the plaintiff was injured occurred on June 16,1975. At the time of the accident, the State had in its possession a traffic study of this intersection which had been conducted by it in 1973 over a one year period. The results of this study showed that an average of 109 northbound vehicles per hour turned left from Johnston Street to Jefferson Street, while only 19.5 southbound vehicles per hour made a left turn from Johnston to Jefferson. The study further showed that during 1973, there were ten accidents involving northbound left turning vehicles compared to seven involving southbound left turning vehicles. As a result of this study, the State decided that the proper action to take was to install a left phase turn signal to the already existing signal for traffic northbound on Johnston Street. The State did not change anything with respect to southbound traffic.

PLAINTIFF-APPELLANT’S ARGUMENT

Plaintiff’s principal argument is that the State was negligent in failing to prohibit left turns for traffic southbound on Johnston Street, since it had evidence that the accident ratio was greater for southbound traffic than for northbound traffic. Plaintiff asserts that the trial judge misconstrued the thrust of her case because the written reasons only addressed the failure to install a left turn phase and not the prohibition of left turns. What the plaintiff urges the court to do is to engage in hindsight and hold that, on the basis of the information disclosed in the study, the State should have banned left turns for southbound traffic. Plaintiff urges that it was negligence for the State not to do something and further urges that prohibiting left turns for southbound traffic was the best course. The plaintiff would then have us find the State liable because it did not select the best option available to it at the time of the accident.

STATE NOT REQUIRED TO POST NO LEFT TURN SIGNS

It is elementary that negligence is determined from the facts and circumstances that existed at the time the accident occurred and if a person acted as a reasonable and ordinarily prudent person under these circumstances, he cannot be found to have been negligent. Pence v. Ketchum, 326 So.2d 831 (La.1976); Fire and Casualty Ins. Co. of Conn. v. Garrick, 312 So.2d 103 (La.App. 1st Cir. 1975), application denied, 313 So.2d 845 (La.1975). It is also settled that while the State has the responsibility for the proper maintenance for all roads in the State, it is not an insurer of the public’s safety on these roads. Vervik v. State Depart. of Highways, 302 So.2d 895 (La.1974); Pelloat v. State Depart, of Highways, 198 So.2d 674 (La.App. 1st Cir. 1967), writ refused 251 La. 23, 202 So.2d 648 (1967). The court believes that to find the State negligent under the particular circumstances of this case would have the effect of making the State the insurer of the safety of the public. Neither by statute nor case law is an affirmative duty imposed upon the State to install left turn signals or prohibit left turns. From hindsight, it might be possible to say that the State could have taken some action to have prevented accidents such as the one in this case. However, the testimony of Lawrence C. Harry, supervisor for the Department of Highways for this particular district, indicated that he took into account all relevant factors and made a reasonable determination under the circumstances. Mr. Harry testified that he considered the possibility of prohibiting left turns at the intersection, but ruled it out as a feasible solution to the problem.

That the State was not negligent in failing to prohibit left turns is further supported by the testimony of Mr. Harry and the defendant’s expert, Tony Ray Trammel, to the effect that the alternatives to turning left at this intersection were as dangerous as the existing situation. A left turn is widely recognized as one of the most dangerous maneuvers that is made on the State’s highways. Here, it was shown that if left turns were prohibited at the intersection of Johnston and Jefferson Streets, then three left turns would be necessary just to get back to where the driver would have been if allowed to turn left at the intersection. Both Trammel and Harry testified that it is very possible that this would be just as dangerous and possibly even more dangerous than allowing the left turns at the intersection in question. This court is unable to say that the State’s failure to remedy the situation at the intersection, even though it knew of the high accident ratio, amounted to unreasonable action on its part.

Plaintiff’s entire argument discussed above is based on a predicate not established. That predicate, as urged by plaintiff, is that known data concerning left turns at the intersection dictated that the State do something and that action was to prohibit left turns for southbound traffic. We do not find that the predicate was established, nor is it self-evident as plaintiff seems to think. The intersection was not unusual in any way. That it presented a hazard is clear, but it is a normal hazard. The hazard presented was in no respects different from similar intersections which are innumerable. The left turning motorist has the duty of not turning left if visibility is impaired as was the case here. While it is true that, had the State prohibited left turns at the intersection, Susan L. Gibson probably would have obeyed the regulation and the accident would not have happened. However, the State has no duty to impose regulations to protect guest passengers from negligent accidents of their hosts.

Moreover, to adopt plaintiff’s theory would require that the State ban left turns as a matter of course on all four lane streets in urban areas. We are not persuaded that this should be done. If the testimony of the experts in this case establishes anything, it was that there is no agreement in this area of traffic regulation. Therefore, our conclusion is that in a given situation involving intersections of four lane streets with other streets, prohibiting left turns may be an appropriate option, but to do so will hardly ever be dictated.

Plaintiff, however, cites to the court the ease of Christ v. State, Dept, of Highways, 161 So.2d 322 (La.App. 3rd Cir. 1964), writ ref. 246 La. 82, 163 So.2d 358 (1964) for the proposition that the Department of Highways has a duty to erect sufficient warnings to alert the ordinary motorist, taking into account the probable traffic, the character of the road, and the use reasonably to be anticipated. Plaintiff also cites the case of Von Cannon v. State, Dept, of Highways, 306 So.2d 437 (La.App. 3rd Cir. 1975), writ ref. 309 So.2d 681 (1975), for the principle that such safeguards should be commensurate with the danger. By their express terms, however, the duty which these cases impose on the Department of Highways is limited to providing safeguards sufficient to protect the “ordinary, reasonable motorist”. In the present case, adequate safeguards to protect the ordinary, reasonable motorist were provided. The intersection was controlled by a traffic signal which included a left turn phase for traffic northbound on Johnston Street. This would have been sufficient safeguards to protect Susan Gibson, if she had been operating her vehicle as an ordinary, reasonable motorist.

However, plaintiff argues that the court’s reasoning in the case of McFatter v. Size-more, 361 So.2d 457 (La.App. 4th Cir. 1978) supports the assertion that Miss Gibson did in fact operate her vehicle as an ordinary, reasonable motorist. In McFatter, the plaintiff came to a stop signal at an intersection and did in fact stop. As a result of another vehicle being illegally parked, Mrs. McFatter could not see traffic coming into the intersection from a particular direction. Mrs. McFatter was also not in a position to extricate herself from this situation because of cars being lined up behind her. The court held in this instance that Mrs. McFat-ter was not negligent in moving slowly forward into the intersection and colliding with another vehicle.

In the present case, unlike in McFatter, the situation with which Miss Gibson was presented was all of her own making. Miss Gibson pulled into the opposite lanes of traffic without first making certain that she could do so safely. Also unlike the situation in McFatter, Miss Gibson had choices other than the one for which she opted. She could have waited for all of the traffic which was blocking her vision to clear or she could have chosen to proceed to the next intersection before turning. Instead, Miss Gibson chose to slowly move into the opposite lanes of traffic and thus caused the resulting collision. Hence, the McFatter case does not support a conclusion that Miss Gibson acted reasonably in the present case. See State Farm Mutual Ins. Co. v. South Central Bell, 343 So.2d 758 (La.App. 3rd Cir. 1977).

STATE’S DUTY TO INSPECT

In addition to the theory of negligence based upon the State’s alleged failure to recognize the need for prohibiting left turns at the intersection, the plaintiff asserts that she is entitled to recover for the State’s failure to properly inspect the intersection. Plaintiff argues that if the State had performed its duty to inspect, then it would have discovered a visual obstruction and been able to have cured it. The visual obstruction which plaintiff contends existed was caused by a backup of northbound cars waiting to turn left from Johnston Street to Jefferson Street. This backup of cars would block southbound motorists’ view of the northbound right lane at the intersection. Hence, when southbound motorists were waiting to turn left into Jefferson Street, they could not see traffic in the right lane coming from the opposite direction. Plaintiff contends that the failure to inspect the intersection and discover the obstruction is negligence on the part of the State.

The State’s obligation to the public to care for its highways includes the duty “to provide and enforce an efficient and continuous system of inspection of all state highways . . Jones v. Louisiana Dept. of Highways, 338 So.2d 338 (La. App. 3rd Cir. 1976). The Department of Highways also has the duty to discover and correct visual obstructions at intersections. Stewart v. Lewis, 292 So.2d 303 (La.App. 1st Cir. 1974). However, in the present case, the alleged obstruction was of a transitory nature, i. e., when northbound vehicles were not waiting to turn left onto Jefferson, then southbound motorists’ vision was not blocked. It is obvious that the obstruction of which plaintiff complains in this case exists at any four lane undivided highways. Our previous comments with respect to such conditions in general apply equally to plaintiff’s argument concerning the failure to inspect. Even plaintiff’s own expert testified that such a visual obstruction would exist at any such intersection.. Thus, in order to abolish accidents caused by such obstructions, the State would have to either install protective left turn signals or ban left turns at all intersections. This is a patently unworkable solution and the failure to do so at this intersection is certainly not grounds for finding the State negligent.

This court concludes as did the court below, that the sole cause of this accident was the negligence of Susan L. Gibson, the driver of the vehicle executing the left turn. We refuse to place upon the State the untenable burden of attempting to prevent all accidents such as the one which occurred in this case.

For the foregoing reasons, the judgment of the District Court is affirmed. All costs are assessed to plaintiff-appellant.

AFFIRMED.

      . Plaintiff settled her claims against all defendants other than the State prior to trial. However, Susan L. Gibson (now Mrs. Susan Gibson Bemard) remains in the case as a third-party defendant of the Department of Highways.

      . The factors influencing a decision to install such devices include efficiency of traffic movement, convenience and safety. Efficiency and convenience appear to have been the factors which prevailed here and led the State to provide a left turn signal for northbound traffic on Jackson but not to do so for southbound traffic.