author: BOUTALL, Judge.

text:
    TRI-SOUTH MORTGAGE INVESTORS v. FOREST AND WATERWAY CORPORATION.
    No. 8310.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 13, 1977.
    Rehearing Denied Feb. 14, 1978.

      Henry O’Connor, Jr., Steeg & O’Connor, New Orleans, for Tri-South Mortgage Investors, plaintiff-appellant.
    Rader Jackson of Shushan, Meyer, Jackson, McPherson & Herzog, New Orleans, for Summit Building, Inc., Legion Enterprises, Inc., and J. S. Senter Lath & Plaster, Inc., intervenors-appellees.
    John I. Hulse, IV of 'Hammett, Leake, Hammett, Hulse & Nelson, New Orleans, for Wallace C. Drennan, Inc. and Ken Par-ris Concrete Placement, intervenors-appel-lees.
    Clarence F. Favret, Jr. of Favret, Favret & Demarest, New Orleans, for Pelican Plumbing Supply, Inc., intervenor-appellee.
    August J. LaNasa, New Orleans, for American Plumbing Supply, Inc., interve-nor-appellee.
    Newman & Drolla, Robert A. Mathis, New Orleans, for Jahncke Service, Inc., in-tervenor-appellee.
    Daniel L. Morrow, J. Joseph Blotner, Gretna, for W. H. Ward Lumber Co., Inc., intervenor-appellee.
    Before SAMUEL, BOUTALL and SCHOTT, JJ.
   BOUTALL, Judge.

This appeal involves the competition for priority between a mortgagee and laborers and materialmen. ■

On June 28, 1972, Tri-South Mortgage Investors, hereinafter referred to as TriSouth, foreclosed upon a mortgage granted it by the Forest and Waterway Corporation on a development project known as the Forest Isles Apartment Complex, Tall Timbers Subdivision. A Sheriff’s sale was scheduled for August 17, 1972 by the Civil Sheriff for the Parish of Orleans. However, numerous contractors and material-men filed petitions of intervention prior to the Sheriff’s sale as well as subsequent to the Sheriff’s sale, seeking to determine the ranking of privileges on the proceeds. The trial court ordered the Sheriff to hold all the proceeds of the sale pending disposition of the issue of the validity and priority of the asserted liens. The purchaser at the sale was the mortgagee, Tri-South.

The lower court referred the trial of the ranking and validity of the liens to a Commissioner who tried the claims. The Commissioner submitted a report and the trial court then adopted the report of the Commissioner and rendered various judgments. Some judgments ranked the priority of the asserted liens and privileges above that of the mortgage granted in favor of Tri-South and granted a personal judgment against Tri-South for the amounts found due by the Commissioner. Additionally, some liens and claims filed were either dismissed or settled. Tri-South now appeals those judgments which acknowledge the priority of liens and claims of 13 claimants who claim under authority of LSA-R.S. 9:4801 et seq. Two claimants, Wallace C. Drennan, Inc. and Summit Building, Inc. have answered the appeal and seek an increase in the quantum of their claims recognized in the lower court.

There are numerous principal issues for us to consider in this appeal. However, the issue which we must consider first is the question of when did the work begin on the Forest Isles Apartment Complex? The answer to that question is basically determinative of the rights of the mortgagee, Tri-South and the various claimants. LSA-R.S. 9:4812 says that the laborers and materialmen’s privilege shall be superior to all the claims against the land except for a bona fide mortgage, if the “mortgage exists and has been duly recorded before the work or labor is begun or any material is furnished.” LSA-R.S. 9 ¡4819(A)(1) defines the term “before the work or labor is begun or any material is furnished” as:

“(1) In the event that the work or construction is new, then ‘work or labor is begun or material is furnished’ is defined as having begun when either excavation has been started so that it can be observed on inspection, or material has been furnished and delivered to the job site which is visible upon inspection and which material when delivered had a value in excess of one hundred dollars provided, however, that test piling shall be excluded from this definition.”

The mortgage granted in favor of TriSouth in the amount of $7,500,000 against the subject property was executed and recorded on April 8, 1971, but there is a serious question as to when the work was begun. The testimony of numerous contractors, especially employees of Rouse’s Dozer Service, was that a large and ambitious project had already been under way to clear the land and begin the construction prior to April 8, 1971. Counsel for appellant Tri-South attempts to characterize the work during prior to April 8 as merely clearing of the land and not excavation, and to support this contention appellant cites several cases distinguishing clearing work from excavation work as intended by the Statute.

In the case before us we cannot reach any other conclusion but that the work done prior to April 8 was that type of work intended to be covered by the private works statute. The testimony of various contractors and workers was that, of the 26 acre site that the apartment complex was to cover, approximately 90% of that area had been cleared in preparation for the stages of construction for the individual housing units that were to immediately follow the clearing. This clearing project, which included the cutting of swale ditches for drainage, building temporary and basic roads, moving earth to building sites, and various other projects in an amount of approximately $19,000 was the first step in the overall construction process. As such it is impossible to distinguish this project from the rest of the construction project. As the Commissioner found in his report:

“The intent of the developer to continue the work from the inception of land clearing to the completion of the apartment complex is manifest. There was no interlude between the land clearing and the construction of buildings. There was no sale of any part of the cleared ground to other parties.
“R.S. 9:4819 defines the beginning of work as ‘when excavation has been started so that it can be observed on inspection.’ There is no question but that on April 8, 1972, (sic) the prudent mortgage investor would have observed, and thereby been enlightened, in regard to the extensive land clearing and excavations taking place in coordination with the intended development of the site as a large apartment complex.”

If a mortgagee fails to protect his interest by inspection of the property to determine whether work has commenced or materials have been supplied, he proceeds at his own peril with respect to the priority of liens of materialmen or laborers. Capitol Bank & Trust Company v. Broussard Paint & Wallpaper Company, La.App. 1st Cir., 198 So.2d 204 (1967). The test is not whether such an inspection is actually made, but rather would such an inspection, if made, reveal that the work had already begun. Pringle-Associated Mortgage Corporation v. Evans-Benck Construction Company, La. App. 1st Cir., 209 So.2d 606 (1967). We hold that had the mortgagee in this case, TriSouth, taken the simple precaution of inspecting the subdivision to determine if work had already begun, it could have protected its interest prior to entering into the mortgage. With a vast area having already been cleared by April 8, and numerous pieces of construction equipment working on the construction site at the time, a simple inspection by the mortgagee would unquestionably have revealed the fact that work had begun. Therefore the liens of laborers and materialmen prime the mortgage.

Having decided that the labor and materialmen’s liens outrank the mortgage held by Tri-South, we now pass to a consideration of the effect of the filing of lien release bonds by Tri-South upon those liens.

To place this issue in proper perspective, we must recount the procedural situation at that time. The basic suit herein is a mortgage foreclosure via executiva by Tri-South Mortgage Investors, holders of the mortgage, against Forest & Waterway Corporation, owners of the property upon which the mortgage was given and the development project took place, giving rise to the liens herein involved. In this proceeding numerous subcontractors and materialmen filed petitions of intervention. Those interventions were referred to the Commissioner of the Civil District Court for trial, and some 5 days of trial followed over a lengthy period. The proceeding was a summary proceeding in which the lien holders asserted their claim to preference in the distribution of the proceeds of the sale of the property, C.C.P. Articles 2643 and 1092, and C.C.P. Article 2592. At this point in the trial Tri-South filed a motion asking for a continuance of the trial to rank privileges until after the judicial sale of the property, and the trial court signed an order continuing the trial and ordering the sheriff to hold the proceeds of the sale in an amount sufficient to satisfy all lien claims. The judicial sale of the property was advertised for August 17, 1972, and on the day before the sale, Tri-South filed with the Recorder of Mortgages corporate surety bonds in amounts equal to 1Í4 times the amount of each lien claimed, and caused the Recorder of Mortgages to cancel the inscriptions of the liens. In each instance the lien-release bond was executed by Tri-South Mortgage Investors as principal and Highlands Insurance Company as surety conditioned as follows:

“Now the condition of the above obligation is such that in the event the priority and validity of the aforesaid claim of lien is established by suit or otherwise, this bond shall remain in full force and effect to protect the interest of the claimant in the premises and to secure payment of said claimant by Tri-South Mortgage Investors.”
******
“This bond is intended to satisfy all requirements of Revised Statute 9:4841 et seq., which requirements are hereby incorporated.”

From the filing of these bonds, a number of questions arise. The first is the effect on the liens. Tri-South argues that these bonds have the effect of cancelling the liens and that the lienholder’s rights are relegated simply to the bonds. We cannot agree. Rights arising under the lien statutes are stricti juris. R.S. 9:4841 grants to contractors the right to bond claims, and Section 4842 grants to property owners the right to bond claims. Prior to the judicial sale, TriSouth was neither the contractor nor the property owner, but was only a mortgage holder. Tri-South has referred us to no other authority than these statutes, and indeed we are unaware of any provision of the private works act which would permit such a cancellation of liens by a mortgage holder. Thus, at the time of the judicial sale, the liens had been improperly can-celled by the mortgage holder, and the proceeds of the sale were to be held subject to the order of the court and subject to the ranking of the privileges.

At the judicial sale, the mortgage holder was the purchaser, and it has held the proceeds in its possession because the proceeds were not large enough to satisfy its own mortgage claim, and because the liens had been cancelled. Under these circumstances it would appear to us that the effect of the bonds furnished, conditioned as they are, is to stand as additional security to the lien claimants for payment of their ranking liens, along with the proceeds of the sale. We rule that the filing of a lien-release bond by the mortgage holder does not have the effect of depriving claimants of their right to proceed by summary process intervention for a determination of the validity and ranking of their claims against the proceeds of the property.

Next, appellant argues that the intervenors who filed after the execution and recordation of the Sheriff’s Proces verbal of the judicial sale, August 22,1972, are in a different position than those who filed before. (See appellant Brief page 25 for listing of 7) The contention is that the adjudicatee being the mortgage holder, it has retained in its hands the full amount of the purchase price and this amounts to a distribution of the proceeds, after which a third party claiming a mortgage or privilege cannot intervene. We are referred to C.C.P. Article 1092 which provides that intervention may be filed at any time prior to the distribution of the proceeds of the sale and C.C.P. Article 2378 which provides that when the purchaser fails to pay a lien superior to the mortgage of the seizing creditor, the superior lien or privilege may be enforced in an ordinary proceeding against the purchaser. Thus appellant contends that neither intervention nor summary process is permitted for those filing after the judicial sale has been executed.

To this contention we reply that C.C.P. Article 2724 makes applicable certain rules respecting sale under writ of fieri facias to executory writs of seizure and sale. C.C.P. Article 2372 provides that the property is sold subject to any real charge with which it is burdened superior to the mortgage of the seizing creditor. Articles 2373 and 2374, together with those following generally govern the distribution of proceeds of the sale. The purchaser here, claiming to be the superior and seizing creditor has never paid anything to the Sheriff for distribution. This despite the fact that the proceedings for ranking of the creditors was still in process, and the fact that the creditor had improperly obtained cancellation of the superior liens. While C.C.P. Article 2378 provides that a superior lien may be enforced in an ordinary proceeding, it is not exclusive. Under the circumstances outlined above, we see no reason to reject the interventions filed after the judicial sale at a time when the ranking proceedings were still pending and the price had not been given the Sheriff for distribution. Surely a mortgage holder cannot improperly cancel all of the liens ranking ahead of him, and by this device withhold from the sheriff the proceeds of the sale and then validly contend that the ranking privileges have no standing because the proceeds have been distributed by himself to himself. We agree with the ruling of the trial court dismissing plaintiff’s exceptions based on this premise.

Until a judicial determination of ranking of privileges, Tri-South had no right to retain the cash purchase price and thus in effect was the recipient of a thing not due under Civil Code Article 2301. TriSouth thus became the trustee of the funds with a distinct codal obligation to restore those funds — in this case, under the condition that a judicial determination occurs, ranking the lien claims as superior to TriSouth’s mortgage.

The next issue is appellant’s contention that the privileges asserted by the intervenors have perempted or prescribed because some ten of them have failed to record in the mortgage records any notice of filing of a suit in accordance with the provisions of R.S. 9:4812. Appellant contends that failure to file the required notice is fatal to the privilege perfected by the filing of the lien and affidavit, citing as authority Robins v. Pavone, 224 So.2d 541 (La.App. 4th Cir. 1969) and Lafayette Woodworks v. Boudreaux, 255 So.2d 176 (La.App. 1st Cir. 1971). It further urges that even where a lien release bond has been filed and the lien affidavit cancelled, strict compliance with the provisions of R.S. 9:4812 must be made in order to avoid per-emption of the privilege. Brunet v. Justice, 264 So.2d 743 (4th Cir. 1972).

While we agree with the principles of those cases, we do not consider them controlling of the issue here. We point out that a judicial sale has taken place and the effect of that sale is to cancel the lien on the record as to the property itself and the lien is referred to the proceeds of the sale. City National Bank of Baton Rouge v. Sunshine Processing Co., 209 So.2d 161 (La.App. 4th Cir. 1968). In that case it was held that it was unnecessary for an intervenor to reinscribe its lien after the sale of the property by the Sheriff, since the claim followed the funds into the hands of the Sheriff. We further refer to our decision in the case of Federal National Bank & Trust Company v. Calsim Company, Inc., 340 So.2d 611 (4th Cir. 1976) wherein we held that an answer filed in a concursus proceeding was the equivalent of the suit required under the terms of Section 4812. In that case, this court relied on the case of Hunt v. LaChere Maison, Inc., 316 So.2d 850 (La.App. 1st Cir. 1975) which stated as follows:

“The present requirement of a notice of lis pendens serves the identical purpose of lien reinscription required by Section 4812, above, prior to its amendment in 1966. In this instance, the Sheriff’s sale occurred within a year of recordation of Carson’s lien. Carson asserted his lien in Appellant’s concursus proceeding within a year of the date the lien was filed. This suffices to preserve the rank of his claim, and render it immune to a plea of prescription predicated upon failure to file a notice of lis pendens.”

In the case before us all of the lien claims have been exerted by way of petitions of intervention prior to the 1 year prescriptive date. Several of these intervenors had also filed separate suits together with notice of suit as statutorily required. We can perceive no difference between a petition of intervention in executory process for writ of seizure and sale and an answer in a concursus proceeding insofar as filing of suit under Section 4812 is concerned. Under the theory of Hunt, notice is no longer necessary after sheriff’s sale of the property. Accordingly, the lien claims were correctly considered by the trial court and the plea of prescription or peremption was not available to appellant.

CLAIM OF WALLACE C. DRENNAN, INC.

Wallace C. Drennan, Inc., one of the sub-contractors who claims a lien by way of intervention, has answered the appeal and seeks an increase in the award granted in judgment.

Drennan had entered two sub-contracts for offsite development work in connection with drainage, sewerage and water supply, one being a unit price contract and the other being a cost-plus contract. The amount due under the unit price contract is not in dispute. Under the cost-plus contract, the commissioner rejected a claim for certain items entitled “Equipment rental” which Drennan had charged as one of the costs of performing the work. Although called equipment rental, the amount does not represent actual rental from some third party but is an amount charged by Drennan for the hours that its heavy equipment was used on the project, and which it contends is an item of cost under the contract. The contract itself contains an itemization of actual contractor costs to be assessed, to which is added 10% for overhead and 15% for profit. The contract also contains an equipment rental clause, which provides for reimbursement of all actual costs of rental, in which case no surcharges of 10 and 15% were to be added. The relevant portions of the contract are:

“CONTRACT PRICE:
“A. All of the work to be performed by Contractor under this Contract shall be performed on a ‘Cost-Plus’ basis, which is defined for purposes of this contract to mean the total of all costs in-
curred by Contractor in effecting the work, to which cost factor shall be added a figure of ten per cent (10%) of said cost figure as contractor’s overhead; and to which figure of cost plus overhead shall be added a figure of fifteen per cent (15%) of the cost plus overhead as contractor’s profit.
“B. For purposes of this contract, Contractor’s costs shall include, but shall not be limited to, the following items:
a. all materials used on or for the job;
b. all wages and labor costs, including a figure equal to twenty per cent (20%) of all such wages to cover employees’ taxes, pension and retirement allowances, F.I.C.A. withholding, social security insurance and other costs;
c. mobilization and demobilization costs of all equipment;
d. costs of sand, fill and dirt as used on the job;
e. all other costs and expenses actually incurred by contractor in the prosecution of the work under this contract.
“C. The expenses of equipment rental for equipment used in the execution of this job, including but not limited to pumps, backhoes, bulldozers, earth moving machines and other equipment, shall be considered as a cost of the job to be paid by owner to contractor. However, owner shall not be required to pay to contractor ten per cent (10%) overhead and fifteen per cent (15%) profit on the costs of equipment rental.”

The commissioner’s findings were as follows:

“However, Drennan, before reaching the point of manned-unmanned work performed, must clearly show entitlement to such charges under the contract. Clearly, Drennan obligated himself to furnish all tools and transportation necessary to perform the work. The contract price identifies costs in paragraph B subsection a-e, Subsection C covers the expenses of rental equipment. The scheme of the contract price invisions an addition of 10% of costs as a designated contractors overhead. To this combined figure, an additional 15% has been added as a contractor’s profit.
“The Court is unable to perceive any method by which Drennan, having agreed to a 10% surcharge for overhead, can now call upon the owner contractor for an amount designated as rental of equipment, which is in effect an attempt to recover depreciation to its own equipment.
“There can be no question that Dren-nan could have actually rented from third parties such equipment. However, in this event, under paragraph C, Drennan would receive no 10% overhead nor 15% profit.
“The Court is therefore of the opinion that no invoices designated as rental of equipment are valid, and the amount of the lien filed by Wallace C. Drennan, Inc. should be reduced in such amounts.”

It is admitted by Drennan that these amounts are not rental, but he contends that they are valid costs under the terms of the contract. An examination of the contract does not disclose a precise enumeration of this item for an allowable cost, nor is there any evidence in the record that this is a standard item of costs envisioned in any cost-plus contract of this nature. We note however that the itemization of costs is not exclusive or limited only to the items specially mentioned, but paragraph (B) of the contract, in sub-section (c) mentions mobilization and demobilization costs of equipment and in subsection (e) permits all other costs and expenses actually incurred.

The only evidence on this issue is the testimony of Wallace C. Drennan, Jr., general superintendent of the claimant, and a number of documents introduced in connection therewith. The net effect of his testimony, together with a consideration of the invoices offered, forces us to conclude that the parties did originally consider that such an item was an allowable cost under the contract terms. We especially refer to the fact that a number of the invoices were accompanied by supporting documents which indicated approval of the use of hourly rates to be charged for equipment usage, and the subsequent payment of these invoices in whole or in part, with an amount held out for retainage under the contract agreement, supports this conclusion. The contract here involved was mainly concerned with earth moving machines and other heavy equipment, and we cannot envisage such a situation wherein rational parties would enter a contract for use of such equipment without some remuneration. Clearly, paragraph (C) contemplated expenses of rental for this type of equipment, and it makes little sense to believe that a contractor would furnish his own equipment free, when he would be reimbursed if he rented it. The commissioner’s interpretation of the contract would provide that the addition of 10% of costs as overhead would be the measure of use of the equipment, together with the additional 15% profit. But that does not take into consideration the basis upon which those percentages can be applied. Presumably that interpretation would have the percentages applied only to the labor costs of the operator, if no material was being used for example in the digging of a ditch, or to both the labor and material that was used if some pipe were laid or other construction accomplished. We cannot agree with such an interpretation, and we believe the charge to be included as an item of costs under the contract, and thus would grant Drennan’s claim for the items deducted in the amount of $11,333.33, amending the judgment to make the total award in favor of Drennan $23,953.26.

CLAIM OF SUMMIT BUILDING, INC.

The claim of Summit Building, Inc. arises from a subcontract with G. & C. Properties, the contractor of the development project. Under the terms of the agreement Summit was to supply prefabricated building components for the project in a total amount of $891,398.34. Work had already started by the time the contract was finally agreed upon and as a result G. & C. Properties had already signed a purchase order from Sanford Truss Company for furnishing roof trusses and jacks. Accordingly, Summit Building agreed to give credit to G. & C. Properties for amounts expended on existing purchase orders. Thus, for every roof truss and jack furnished by Sanford Truss Company, Summit Building was to deduct that amount from the amount due Summit under the contract.

A lien in the amount of $112,719.49 was filed by Summit Building, but the Commissioner recognized its lien privilege only of $65,879.61. First the Commissioner disallowed the claim to the extent of representing the amount of materials Summit Building delivered to the job site, but took back. Because the project had closed down by the time that Summit attempted delivery, the materials remained on the trailer truck for several days, not receipted for by G. & C., and thereafter were returned to the fabrication yard at Summit Building. The Commissioner found that in view of the fact that Summit Building had removed the material to their own fabrication yard and that no one had accepted delivery of the items on the jobsite, nor were they ever unloaded there, that such a claim did not constitute a “furnishing material” as contemplated in R.S. 9:4801, et seq. We agree with the Commissioner’s determination. While ordinarily a furnisher of materials does not have the burden of proving actual use, under these facts there is no effective delivery and a positive showing of return of materials. While there may be a contractual obligation incurred by G. & C. because of contract terms, the obligation itself does not give rise to a privilege against the property under R.S. 9:4801. We agree that the lien and privilege should be disallowed in the amount of $20,972.24.

The Commissioner additionally disallowed the amount of $1,259.97, representing sales tax on that same claim. Summit contends this was error in that the Commissioner was making a double deduction for the sales tax. In argument before us counsel for appellee concedes there was a double deduction and we agree. We note that at page 107 of Summit exhibit # 2 there is recorded the claim of $20,972.24, of which sum $1,088.24 represented sales tax. Thus, when the Commissioner disallowed the claim for $20,972.24 he also was disallowing the amount claimed for sales tax. However, the Commissioner, after disallowing the sum of $20,972.24, computed a sales tax at 6%, $1,259.97, and additionally subtracted that from the total claim. In view of the fact that the sales tax was already deducted in the original amount disallowed, that is $20,972.24, it was error to further deduct sales tax at 6%. Accordingly, we must amend the judgment of the trial court to increase the award to Summit Building by the amount of $1,259.79.

The third item that Summit seeks to be recognized is $24,607.67, the difference between the amount of credit claimed by G. & C. Properties and the amount of credit allowed by Summit. As previously mentioned, Summit Building was to allow G. & C. Properties credit for roof trusses and jacks purchased by G. & C. from Sanford Truss Company under a preexisting purchase order. The Commissioner found the problem to be one of accounting procedures and we agree. Mrs. Grein of Summit was the person responsible for keeping track of the number of trusses supplied by Sanford which were to be credited to G. & C. Summit Building relied on blueprint plans to figure the number of trusses supplied by Sanford Truss Company. G. & C. arrived at its figure by the use of invoices and dray receipts of Sanford and thus were able to keep a more accurate account of the actual number of trusses and roof jacks used. The Commissioner found the procedure of G. & C. to be more preferable in arriving at the amount furnished and thus allowed the entire sum of $24,607.67 as a credit against the amount due Summit. We find no error in this determination.

Accordingly, we would affirm the judgment of the trial court in favor of Summit with the exception of $1,259.79 disallowed.

For the foregoing reasons we amend the judgment of the trial court as follows:

We increase the judgment in favor of Wallace C. Drennan, Inc., by the sum of $11,333.33, making the total award in favor of Wallace C. Drennan, Inc., the sum of $23,953.26.

We increase the judgment in favor of Summit Building, Inc. by the sum of $1,259.79, making the total award in favor of Summit Building, Inc., the sum of $67,-139.40.

As thus amended, we affirm the judgment in all particulars.

AMENDED AND AFFIRMED.

      . Testimony of several persons was that Rouse’s Dozer Service had begun the clearing and construction project in early March, 1971 and had nearly completed work by the date of April 8, 1971. Besides clearing the land and cutting swale ditches, numerous basic roads which later became the paved streets of the subdivision were built in that time period.

      . Roof jacks are wedge shaped boards used to adjust the elevation of the trusses. The Commissioner found them to be a necessary part of the components to be furnished and includable.


source: Caselaw Access Project

author: WATSON, Judge.

license: Public Domain

text:
    Ephriam CULLIVAN, Jr., Plaintiff-Appellee, v. FISH ENGINEERING AND CONSTRUCTION COMPANY, INC., et al., Defendants-Appellants.
    No. 6326.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1977.

      J. Louis Gibbens, New Iberia, for defendants-appellants.
    Morrow & Morrow, J. Michael Morrow, Opelousas, for plaintiff-appellee.
    Before DOMENGEAUX, WATSON and JOHNSON, JJ.
   WATSON, Judge.

This is a workmen’s compensation case. The trial court found plaintiff, Ephriam Cullivan, Jr., to be totally and permanently disabled as the result- of an accident on January 23, 1976, and awarded penalties and attorney’s fees. Defendants, Fish Engineering and Construction Company, Inc., the employer, and its insurer, Employers National Insurance Company, have appealed. Plaintiff has answered the appeal, asking that the attorney’s fees of $2,750 be increased to $7,500.

Defendants contend that the trial court erred in giving judgment for expert witness fees and the cost of depositions when these items were not mentioned in the written reasons for judgment. There is no merit to this contention. The trial court was within its discretion in fixing these expenses as court costs and assessing them to defendants. LSA-R.S. 23:1317; Tyler v. Owens Illinois, Inc., 289 So.2d 893 (La.App. 4 Cir. 1974). Written reasons for judgment form no part of the judgment itself. See Smith v. Dendinger, 349 So.2d 907 (La.App. 1 Cir. 1977) and Hebert v. Hebert, 351 So.2d 1199 (La., 1977).

The other issues are: whether plaintiff proved a causal connection between the accident and his disability; whether plaintiff is totally and permanently disabled within the meaning of LSA-R.S. 23:1221, as amended in 1975; whether the trial court correctly awarded penalties and attorney’s fees; and whether there should be an increase in the amount awarded as attorney’s fees.

Plaintiff Cullivan was working as a carpenter 48 hours a week. He had been a carpenter 16 years without suffering an injury. It is undisputed that he suffered an accident in the course and scope of his employment, when he experienced pain in his side and back as he picked up a heavy barrel of sand. Cullivan was paid weekly compensation benefits totaling $3,740. Payments of $85 per week were discontinued on November 25, 1976. Defendants paid medical expenses totaling $5,167.13. Other medical expenses: $911.25 at the Ville Platte General Hospital; $698 at the Tassin Clinic Pharmacy; $403.50 at the Eas-tin Pharmacy; and $663 from Dr. John Tassin, were not paid. Rita Aucoin, Credit Collection Clerk at- Ville Platte General Hospital, testified that she had sent the unpaid hospital bill to the insurer several times and had also sent a breakdown of the drug charges at the request of the insurer. Payment had not been made, although responsibility for the bills had not been denied. Dr. John Tassin testified that all of the unpaid expenses related to Cullivan’s accident. Most of them were incurred prior to the time that compensation payments were stopped.

Cullivan testified that the accident occurred on a Friday. An appointment was made for him to see a doctor in Morgan City on Monday. According to Cullivan, this physician said Cullivan should see his family doctor for surgical treatment of a hernia in' the left side and a ruptured disc in his back. Cullivan then went to his home in Ville Platte where he saw Dr. John Tassin on Tuesday. Cullivan testified that he has been unemployed since the accident and is physically unable to work. He has been on a diet but has not lost weight. Because his brother had a poor result from back surgery, Cullivan was reluctant to have such an operation himself. Cullivan, aged 36, said he is both older and heavier than his brother.

Dr. Tassin testified as an expert in the field of general practice. Dr. Tassin saw Cullivan on January 27, 1976, and referred him to Dr. Daniel Buller for surgical repair of a left inguinal hernia. Dr. Tassin assisted in the surgery and has continued to see Cullivan every two weeks since then. Because Cullivan is obese, weighing some 300 pounds, the surgery was not the “Anderson McVey” (TR. 359) type, which allows return to heavy work, but a more superficial repair. According to Dr. Tassin, Cullivan definitely had muscle spasms in his back, in addition to the hernia. Cullivan continued to have low back pain radiating into the left leg and weakness in that leg, and Dr. Tassin referred him to a neurosurgeon, Dr. Charles A. Borne. Dr. Tassin agreed with Dr. Borne’s diagnosis of a ruptured disc. Cullivan has also suffered from hemorrhoids, impotence, proctitis and constipation, which Tassin testified could be related to his back problem, since one of the symptoms of a disc injury is difficulty with the nerves leading to the rectum and sphincter. Dr. Tassin considered surgery for the hemorrhoids but continued conservative treatment because Cullivan is not a good candidate for surgery. Dr. Tassin treated Culli-van for these incidental complaints and hospitalized him from August 4, 1976, through August 13. Cullivan was put on complete bed rest with a 1,000 calorie diet, pelvic traction and physical therapy. The combination resulted in some symptomatic improvement but no loss of weight. Dr. Tas-sin last saw Cullivan shortly before trial on February 1, 1977. At that time Cullivan’s complaints remained the same and, according to Dr. Tassin, have been consistent throughout his treatment. Dr. Tassin believed Cullivan to be truthful and not a malingerer. Since the only purpose of a myelogram is diagnostic, such a procedure would be worthless if Cullivan were not planning to have surgery for his back. Dr. Tassin testified that, aside from the back problem a return to heavy labor would probably cause Cullivan to suffer a recurrence of his hernia. Cullivan is unable to do any type of lifting, prolonged standing or prolonged sitting. He should not walk or drive on a regular basis and Dr. Tassin felt that he would find it difficult if not impossible to find work. Any minor stress could aggravate his pain. Even with surgery, Tassin felt the possibility of Cullivan returning to employment was not good, since Cullivan will probably develop degenerative arthritic disease within a year. Cullivan belongs to a family of large, people and is a big man in addition to being obese.

Dr. Daniel H. Buller of Opelousas testified as an expert in the field of general surgery. Dr. Buller saw Cullivan on January 27, 1976, and subsequently did a successful surgical repair of a left inguinal hernia. Dr. Buller discharged Cullivan on August 20, 1976, fully recovered from the hernia but with a likelihood of a recurrence. Cullivan complained of back pain and had significant- back symptoms during the course of Buller’s treatment. During the post-operative period, Cullivan developed an inflammation of the epididymis, which is usually caused by a urinary tract infection. Dr. Buller testified that Cullivan’s back trouble might have aggravated his bladder, caused urinary retention, and contributed to the infection. The hernia surgery, although perhaps a contributing cause, was probably not the primary cause of the epidi-dymitis. Dr. Buller referred Cullivan to Dr. Joseph Frazer Gaar, an orthopedic surgeon, because of the possibility of a ruptured disc.

Dr. Gaar testified in deposition that he saw Cullivan on March 22,1976. His report to Dr. Buller stated:

. seemed to be lumbar paraspi-nous muscle spasm present, . . . ” (TR. 157).

Dr. Gaar said that Cullivan’s large size made it difficult to assess the condition of his back, which x-rays showed to be within normal limits for his age. Cullivan was referred to Dr. Gaar again on May 12, approximately two months later, and this report states:

“Again, I cannot detect definite lumbar paraspinous muscle spasm due to his large size.” (TR. 153).

Cullivan was deemed a poor candidate for surgery. Although Dr. Gaar could not make a definite diagnosis, he recommended that Cullivan continue under observation for a possible disc injury. Dr. Gaar said it would not be good practice for a patient to have a myelogram, if he were unwilling to have a laminectomy.

Dr. Charles A. Borne, a neurosurgeon in Lake Charles, examined Cullivan twice on referral from Dr. Tassin. His first examination, on May 5, 1976, indicated the possibility of a herniated or ruptured disc at the L-3, L-4 level. Dr. Borne detected muscle spasms. Later, on July 1, 1976, he found a sensory decrease on the left side and an almost complete absence of knee reflex. Dr. Borne recommended a myelogram and possible surgery for lumbar disc disease. However, Dr. Borne testified that Cullivan was not a good candidate for a laminectomy because of his size. Dr. Borne said that Cullivan was not able to return to any type of work at the time of his examinations (TR. 46). Dr. Borne found it highly unlikely Cullivan could return to manual labor even if he had surgery. In his opinion, weight loss and surgery would give Culli-van only a 50% possibility of returning to manual labor. Dr. Borne was convinced that Cullivan had a disc injury and testified that a negative myelogram would not change his diagnosis since a myelogram is only 85% accurate. A desirable weight for Cullivan would be 200 pounds but losing 100 pounds would take a year or more.

Dr. Carl F. Culicchia, a physician in Marrero, testified in deposition as an expert in neurological surgery. He examined Cul-livan on September 28, 1976, and concluded that Cullivan probably did not have a neurological injury or disease. Dr. Culicchia suggested a myelogram to confirm his diagnosis. Arrangements were made for this procedure but Cullivan decided not to have it done. Cullivan said he made this decision after consulting with Dr. Tassin. Dr. Cu-licchia stated that Cullivan’s weight would not be a problem in performing the myelo-gram. Dn Culicchia said he recommended a return to Cullivan’s former occupation, but any report he may have made to the employer or insurer to that effect is' not in evidence. There was no testimony as to why compensation payments were discontinued.

Dr. George Hearn, head of the psychology department at Louisiana College in Pine-ville, testified in deposition as an expert in the field of vocational evaluation and rehabilitation. Dr. Hearn did not examine Cul-livan but testified that there were various light duty jobs available in Louisiana which he felt Cullivan could perform. These included truck and school bus driving; guard, watchman and service station positions; and other jobs requiring vocational training. The trial court stated in written reasons for judgment that it gave little weight to Dr. Hearn’s testimony, pointing out that Dr. Tassin, the primary treating physician, indicated Cullivan is unable to perform the duties of these jobs.

There is no manifest error in the trial court’s conclusions that plaintiff’s accident resulted in total and permanent disability and that he cannot work because of that disability. The evidence establishes that Cullivan is unable “to engage in any gainful occupation for wages”, LSA-R.S. 23:1221(2). The contention of defendants that Cullivan is not disabled within that definition is unsupported by the record. Dr. Borne testified that Cullivan was unable to do any type of work at the time of his examinations and Dr. Tassin, who has had Cullivan under continuous observation, said his condition had not improved. The only testimony to the contrary was that of Dr. Culicchia, who saw Cullivan only once, did not treat him and suggested a myelo-gram as a check on his diagnosis.

Cullivan’s reluctance to have surgery is justified by the fact that both Drs. Tassin and Borne agree he is a poor surgical risk at the present time. See Bass v. Service Pipe Trucking Company, Inc., 289 So.2d 78 (La., 1974).

The trial court’s conclusion that the failure to continue Cullivan’s benefits was arbitrary, capricious and without probable cause is partially a factual determination and should not be disturbed in the absence of manifest error. Dr. Culicchia’s opinion, if communicated to the insurer, might have given a sufficient pretext for discontinuing payment of Cullivan’s compensation. However, there is no testimony in the record as to why the compensation was discontinued, and as noted above, there is no medical report from this doctor in the record. Additionally, the record affords no excuse for failure to pay the additional medical expenses which were clearly due and owing. Roberie v. Ashy Construction Company, 215 So.2d 857 (La.App. 3 Cir. 1968) writ denied 253 La. 323, 217 So.2d 414 (1969). The trial court correctly awarded penalties and attorney’s fees. Compare Crawford v. Al Smith Plumbing & Heating Service, Inc., 352 So.2d 669 (La., 1977).

The attorney’s fee awarded plaintiff’s counsel is within the discretion of the trial court, but an increase in the attorney’s fee for services on appeal is warranted. Payne v. Travelers Insurance Company, 299 So.2d 913 (La.App. 3 Cir. 1974). The sum of $500 will be awarded as additional attorney’s fees.

For the foregoing reasons, it is ordered that the judgment of the trial court herein be amended to award an additional $500 as attorney’s fees, and, as amended, the judgment of the trial court is affirmed. All costs are taxed against defendants-appellants.

AMENDED AND AFFIRMED.

      . This is the figure in the minutes (TR. 1) and the stipulation of counsel (TR. 328). The figure of $5,117.13 in the reasons for judgment (TR. 26) is apparently a typographical error.


author: LANDRY, Judge.

text:
    Gennie V. GRAHAM, Individually and as Administrator of the Estate of her minor child, Michael Jerome Graham v. STATE of Louisiana, Through the Louisiana HEALTH AND SOCIAL and REHABILITATION SERVICES ADMINISTRATION.
    No. 11647.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    Rehearing Denied Feb. 13, 1978.
    Alex Wall, Baton Rouge, of counsel for plaintiff-appellant Gennie V. Graham, Indv., Etc.
    Donald E. Puckett, Baton Rouge, of counsel for defendant-appellee State of La. through the La. Health & Social & Rehabilitation Services Administration.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   LANDRY, Judge.

Plaintiff (Appellant) appeals from judgment rejecting her claims for damages for severe personal injuries inflicted upon her 12 year old son in a knife attack by William Robertson, following Robertson’s escape from a mental institution known as State Hospital, located in Pineville, Louisiana (Hospital). The regrettable incident occurred in Baton Rouge, Louisiana, more than 100 miles distant from the Hospital, about midmorning August 3, 1973, after Robertson had fled the Hospital the previous night. The trial court found tlrat the attack was clearly “unprovoked, illogical and unwarranted”, but denied Appellant recovery on finding that the State’s duty to protect the public from the risk of harm involved in the escape of a mental patient does not extend to one in Appellant’s position. We affirm.

Robertson was first admitted to the Hospital in January, 1968, for treatment for mental disorder. From first admission until August 2, 1973, he was admitted or returned to the Hospital seven or eight times after having escaped in each instance. Hospital records and the testimony of Dr. William L. Kirkpatrick, M.D. and Psychiatrist, disclose that Robertson was afflicted with chronic undifferentiated schizophrenia in that the patient exhibited symptoms of several forms of schizophrenia. He heard voices, saw visions, had delusions, had disturbed thought processes and was alternately friendly and hostile to those with whom he came in contact. Dr. Kirkpatrick, who had treated Robertson for several years, did not consider Robertson violent. He explained that while Robertson frequently threatened violence, he never carried out the threats. About 2 days prior to the August 2,1973 escape, however, Robertson attacked hospital attendants and fellow inmates with a chair. He was placed in restraints consisting of leather arm bindings and leg irons apparently attached by leather thongs. The leg irons prevented him from running but allowed him to hobble or hop. He was placed in the institution’s maximum security area, an unbarred room or dormitory with windows enclosed by louvers or shutters. The Hospital has no barred rooms or cells because the authorities in charge deem such an environment harmful to the best interests of patients who are received primarily for treatment for mental disorder rather than incarceration.

By means of a razor blade which Robertson either had concealed on his person or had obtained from a fellow inmate, Robertson freed himself from his restraints and fled the Hospital at night. The record does not establish the source of the knife with which Robertson attacked the Graham lad.

The rule governing liability of custodians of prisoners and inmates of public institutions is set forth in Green v. State, 91 So.2d 153 (La.App. 1st Cir. 1956), as follows:

“While the custodians of prisoners ‘may be held liable for injuries done to a third person by a prisoner in the course of an escape,’ 72 C.J.S. Verbo Prisons § 23, i, p. 896; they ‘are not liable for injuries inflicted by an escaped prisoner, where the negligent or wrongful acts of such officials are not the proximate cause of the injuries,’ 72 C.J.S. Verbo Prisons § 12, p. 865; citing Moss v. Bowers, 216 N.C. 546, 5 S.E.2d 826, 828, which held that the injury to the third person was not within the natural, probable, and foreseeable consequences of the alleged negligent acts which permitted the prisoner to escape, and that ‘the injury complained of is too remote to be referred to the negligence of the defendant as the proximate cause.’ ” See Annotation, 78 A.L.R. 471 at 476.
“An institution’s duty to restrain a convicted criminal is not based upon the purpose of protecting the general public from all harms that the prisoner might inflict if he were allowed to escape. A convicted person may be as dangerous on the day of his legal release as he was on the first day that he was confined, although the institution may still be under a legal duty to detain or to release him. There is no more reason for the State to be civilly responsible for the convict’s general misconduct during the period of his escape than for the same misconduct after a legal release, unless there is some further causal relationship than the release or escape to the injuries received. The breach of the State’s duty to continue the prisoner’s incarceration thus should not be complained of by those injured through the escapee’s negligent operation of a car. For the breach of the duty to be a proximate cause of the injury for which recovery is sought, the injury received should be one for the prevention of which the duty exists.” 91 So.2d at 155.

In Dixie Drive It Yourself System New Orleans Co., Inc. v. American Beverage Company, 242 La. 471, 137 So.2d 298 (1962), our Supreme Court adopted the duty/risk analysis for determining tort liability which involves the following inquiries: (1) Was defendant’s action a cause-in-fact of plaintiff’s injury — was it a substantial factor in bringing about the harm; (2) Do the risk and harm encountered by plaintiff fall within the protection of a legal duty owned to plaintiff by defendant; (3) Was defendant negligent — i. e., did defendant breach the duty owed plaintiff; and (4) Was plaintiff damaged by defendant’s conduct. See also Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972). For plaintiff to recover, all four inquiries must be answered in the affirmative.

We pretermit consideration of the inquiries regarding cause-in-fact, negligence and resulting damage to plaintiff because we find the trial court correctly held that the State was not under a duty to protect plaintiff against the risk encountered in this instance.

The State’s duty to protect the public from harm at the hands of escaped prisoners or inmates of public institutions does not extend to or encompass all harm which may be caused by such persons. Frank v. Pitre, 341 So.2d 1376 (La.App. 3d Cir. 1977); Green v. State Department of Institutions, 91 So.2d 153 (La.App. 1st Cir. 1956).

The extent or scope of protection afforded the public in cases of this nature has been considered on several occasions. The issue was first addressed in Cappel v. Pierson, 132 So. 391 (La.App. 2d Cir. 1931), which involved a death claim by the widow of a doctor who was shot by an inmate of the state insane asylum. The shooting occurred on the same day as the inmate’s release by the superintendent of the institution. The court noted that the superintendent possessed discretion in ordering the release of an inmate and when such discretion was exercised in good faith, as was found, the releasing physician could not be held to have been negligent. Appellant seeks to distinguish Cappel on the ground that the court therein elected to give great weight to defendant’s professional opinion. We note, however, that Cappel expressly held that the inmate’s release was not the proximate cause of the doctor’s death.

Frank, above, attempts to distinguish Cappel on the ground that the proximate cause issue was resolved in Cappel by the court’s deferring to defendant’s professional judgment. We believe, however, that the wisdom of a decision to release a patient has no bearing on the question of the remoteness of the injury from the questioned conduct. Such a decision concerns the question of negligence in permitting release rather than the consequences thereof.

Green, above, and Webb v. State, Department of Institutions, 91 So.2d 156 (La.App. 1st Cir. 1956), both decided the same day but with contrary results, are somewhat analogous to the case at hand. Green found that an escaped inmate’s negligent operation of a stolen automobile was not the proximate cause of plaintiff’s injury. Green also noted that the duty to restrain a convicted criminal is not based on the premise of protection of the public from all harm a prisoner might inflict if negligently allowed to escape. The court reasoned further that there is no more ground for holding the State civilly liable for a convict’s general misconduct during the period of escape than for the same misconduct following legal release unless there exists further causal relationship than the release or escape to the injuries received.

It is apparent that release from a mental hospital is different from release from a penal institution in that the former situation directly involves a decision concerning the patient’s ability to function outside the institution. The reasoning is the same, nevertheless, for determining the extent of the State’s duty to protect the public. In the case of a mental patient, there is an additional inquiry of whether the institution was negligent in determining that the patient could be released without the risk of harm to the public.

On the other hand, Webb, above granted recovery to a plaintiff who lived near the State Penitentiary and who was shot by an escaped prisoner who was found to have been negligently allowed to escape with a weapon stolen from the prison. In imposing liability, the court in Webb noted the definite foreseeability that a prisoner negligently allowed to escape with a weapon would harm persons in the vicinity of the prison. The court also held that such injury was within the risk created by the negligence of the State’s employees. In distinguishing Green, Webb noted:

“In the case at bar, on the contrary, we do believe, as did the trial judge, that the inflicting of wounds on others in the course of escape by a convict through the use of a pistol made available by the negligence of State employees to be a most probable and reasonable foreseeable consequence of the original act or acts of negligence.” 91 So.2d at 163.

More recent cases, Geiger v. State, Department of Institutions, 242 So.2d 606 (La. App. 1st Cir. 1970), and Walker v. Interstate Fire & Casualty Insurance Company, 334 So.2d 714 (La.App. 2d Cir. 1976), are not particularly helpful to a decision of whether the State’s duty to protect from the risk of harm extends to this plaintiff, although said authorities deal with the issue. Both cases involve appellate reversal of trial court judgments sustaining exceptions of no cause of action. Geiger concerned the claim of the victim of a rape committed by escaped juveniles, the offense having been committed in the victim’s home located about 500 yards from the institution. In Walker, a parish jail prisoner, with a history of criminal offenses, reputedly escaped with a rifle stolen from the jail. The escape was allegedly due to negligence of deputies in charge of the jail. The victim claimed that the escapee, on the day of escape, shot at plaintiff in her home in the same parish as the jail, and physically assaulted her. These authorities were concerned only with the question of whether plaintiffs’ allegations, if substantiated at trial, could support a cause of action.

In determining the crucial question of whether Appellant is entitled to protection against the risk of harm attending the escape in question, we are guided by the following language appearing in Hill v. Lundin & Associates, Inc., above:

“The same policy considerations which would motivate a legislative body to impose duties to protect from certain risks are applied by the court in making its determination. ‘All rules of conduct, irrespective of whether they are the product of a legislature or are a part of the fabric of the court-made law of negligence, exist for purposes. They are designed to protect some persons under some circumstances against some risks. Seldom does a rule protect every victim against every risk that may befall him, merely because it is shown that the violation of the rule played a part in producing the injury. The task of defining the proper reach or thrust of a rule in its policy aspects is one that must be undertaken by the court in each case as it arises. How appropriate is the rule to the facts of this controversy? This is a question that the court cannot escape.’ Malone, Ruminations on Cause-In-Fact, 9 Stanford L.Rev. 60, 73 (1956).”

We understand the foregoing language to mean simply that the extent of application of the duty/risk concept is a policy question to be decided by the courts except in those instances where the extent of the duty and the degree of protection intended is statutorily clear. We have no such guide in this instance. The herein-above quoted jurisprudential rule establishing the duty of care as regards the escape of inmates from public institutions and the extent of protection thereby afforded does not extend the duty and/or protection to all persons under all circumstances.

We find that no duty was owed Appellant in this case and that the risk of harm intended to be protected against does not extend to the harm which befell Appellant. Despite threats to do so, Robertson had never before attacked anyone, except for the one noted incident which did not involve a weapon as such. The incident in question occurred several hours after escape and at a place more than 100 miles from the institution. We presume that Robertson armed himself with the knife after his escape. The attack, hours after escape, upon a 12 year old boy who was a complete stranger, in a city 100 miles distant from where Robertson was institutionalized, was so unforeseeable and unpredictable that to hold the incident within the risk of harm sought to be protected against would impose total, unqualified liability on the State for any harm caused by an escaped inmate under any and all circumstances, irrespective of intervening time and distance. As a matter of policy, we are not prepared to extend liability to this degree. We find, therefore, that Appellant does not fall within the class of those afforded protection against the risk of harm involved in this instance.

The judgment is affirmed at Appellant’s cost.

Affirmed.


text:
    Weldon HIMEL et al., Plaintiff-Appellee, v. AMERICAN EMPLOYERS INSURANCE COMPANY, Defendant-Appellant.
    No. 11659.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    Rehearing Denied Feb. 13, 1978.

      John L. Lanier, Thibodaux, for plaintiff appellee.
    Donald T. Carmouche, Donaldsonville, for Cane Air, Inc., Appellant.
    Charles J. LeBlanc, Thibodaux, for American Emp. Ins. Co.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   LANDRY, Judge.

Defendant, Cane Air Aviation (Cane Air), appeals judgment granting plaintiffs recovery for crop damage to plaintiffs’ gardens found by the trial court to have been caused by Cane Air’s spraying of sugar cane on Himalaya Plantation, which plantation was leased to Ashley Arcement who ordered spraying of his cane crop thereon. American Employers Insurance Company (American), the landowner’s liability insurer, was the sole initial defendant, Cane Air being subsequently impleaded herein. American has third partied Cane Air pursuant to an indemnity agreement between Cane Air and the owner of the land involved. The trial court rendered judgment in favor of plaintiffs against American and in favor of American against Cane Air. We affirm.

Cane Air contends: (1) Plaintiffs failed to establish causation of damage in that there is no proof that spraying by Cane Air caused the damage to plaintiffs’ gardens; and, (2) Plaintiffs did not prove their damages with reasonable certainty as required by law.

On August 3 and 5, 1974, Arcement had Cane Air spray his cane crop with 2-4,D to kill tye vines and other broad leaf weeds that had sprung up among the sugar cane. On the morning of August 5, 1974, the operation commenced at about 8:30 A. M., and lasted for approximately an hour. Using a helicopter, Cane Air’s pilot made three or four trips, flying in a north-south pattern. Plaintiffs’ properties are situated from one-quarter to one-half mile south of Himalaya. At about noon on August 5, 1974, one plaintiff observed evidence of damage to her garden. By the following day, all plaintiffs noted signs of damage in varying degrees. All of plaintiffs’ gardens were ruined. The gardens, all of the late spring variety, each contained some combination of okra, beans, corn, peas, peppers, tomatoes and pumpkins. The damage manifested itself in the form of curling, yellowing and wilting of leaves and discoloration and withering of fruit. Plaintiffs notified Cane Air immediately. Cane Air sent a representative who talked with at least one plaintiff and viewed his garden.

Cane Air’s pilot and owner testified in essence that the helicopter was equipped with the latest microfilm boom which allowed no drift. They explained that the boom was mounted ahead of the pilot and emitted spray beneath the helicopter “like dragging a paint brush behind the machine”. They added that there could have been no drift onto plaintiffs’ lands because the spray is emitted in liquid drops and there was no wind on the day in question. The pilot testified that he turned in tight circles at the end of each run and that the helicopter did not fly over any plaintiff’s land. He also testified that he shut off the spray before making each turn to avoid spraying adjacent lands. Cane Air’s witnesses maintain that an absence of claims from intervening landowners is proof that the spraying operation did not cause plaintiffs’ losses. They also suggest that spraying on a canal right of way to the rear of plaintiffs’ lands may have been the cause of the damage.

Plaintiffs produced witnesses who observed the helicopter flying over their properties and those of other plaintiffs on the day in question. At least one such witness testified that he saw spray coming from the helicopter as it flew over his land. He described the spray as “white smoke”, and testified that it left a trail of damaged foliage over woods and pastures where the helicopter turned. Plaintiffs’ witnesses negated spraying of the canal within several months prior to August 5, 1974.

As contended by plaintiffs, liability herein is predicated on La.C.C. Article 667, which provides:

“Although a proprietor may do with his estate whatever he pleases, still he cannot make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.”

The foregoing article imposes liability without fault—in other words, strict liability. The damage caused in this instance falls squarely within the protection afforded adjoining landowners by Article 667. Gotreaux v. Gary, 232 La. 373, 94 So.2d 293 (1957).

The burden of proof incumbent on plaintiffs does not require disproval of every reasonable alternative cause of damage. Plaintiffs are required, however, to prove cause in fact by a preponderance of evidence which burden is met when, taking the evidence as a whole, plaintiffs’ proof shows that the fact of causation sought to be proved is more probable than not. Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971); Hanover Insurance Company v. Jacobson-Young, Inc., 294 So.2d 564 (La.App. 4th Cir. 1974); Carpenter v. National Food Stores, Inc., 278 So.2d 570 (La.App. 1st Cir. 1973).

In this instance, Cane Air admits its helicopter sprayed on the day in question and that its helicopter flew a pattern which could have taken it over plaintiffs’ lands. Although plaintiffs could not positively identify the helicopter as belonging to Cane Air, they testified unequivocally that a helicopter flew over their lands on the same day that Cane Air sprayed neighboring lands. No other helicopter was sighted in the area on the day in question. Plaintiffs also established that the damage to their crops was a classic example of the type of damage done by 2-4,D to vegetation. Plaintiffs also established that damage of the type noted usually manifests itself any time from a few hours to several days following exposure to 2-4,D. The trial court found cause in fact connexity between Cane Air’s spraying and the cause of plaintiffs’ damages. We find credible evidence in the record to support this determination, if believed by the trier of fact. Under the circumstances, we affirm the finding. Canter v. Koehring Company, 283 So.2d 716 (La.1976).

In proof of damages, plaintiffs offered the testimony of an experienced truck farmer who estimated production amounts of each vegetable predicated on rows of certain lengths or number of plants. The witness, who was qualified as an expert, visited and walked in one garden. Because of inclement weather, he viewed the remaining gardens from his automobile on the highway. He found all gardens to be about equal in productivity and the extent of damage in each to be total. The witness, who had sold his own vegetables to chain stores and the French Market in New Orleans for many years, quoted French Market prices as of August 5,1974. Aware that all plaintiffs mostly consumed their own crops, he quoted what he deemed minimum wholesale French Market prices. Based on the expert’s production estimates, plaintiffs measured their rows, counted their plants, determined production figures and applied the expert’s market prices. All plaintiffs testified in effect that their gardens were just coming into production and that their respective crops were a total loss. The trial court discounted their respective figures by 20% upon determining that most of the crops would have been home consumed.

We find the trial court’s assessment of damages to be reasonable under the circumstances and well within the limits of discretion permitted by La.C.C. Article 1934(8) and Coco v. Winston Industries, 341 So.2d 332 (La.1977).

The judgment is affirmed at Appellant’s cost.

Affirmed.


text:
    Eula V. FOLLINS, Individually and on Behalf of the minor Edris Follins v. Lazzard BARROW et al.
    No. 11661.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    Rehearing Denied Feb. 13, 1978.
    Writ Refused March 27, 1978.
    Arnold J. Gibbs, Baton Rouge, of counsel for plaintiff-appellees Eula V. Follins and Edris Follins.

      Anthony J. Clesi, Jr., Baton Rouge, of counsel for defendants-appellees Lazzard Barrow et al.
    Joseph F. Keogh, Parish Atty., W. George Bayhi, Baton Rouge, of counsel for defendant-appellant City Parish Government.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   LANDRY, Judge.

Defendant City of Baton Rouge (City) appeals from judgment casting it in damages to plaintiffs for personal injuries sustained in an intersectional automobile accident alleged to have occurred due to the City’s negligence in removing a stop sign at the site of a street construction project. Mrs. Follins has answered the appeal seeking an increase in damages for personal injuries to herself and her guest passenger minor daughter and also seeking recovery of lost earnings denied by the trial court for lack of proof. We reverse upon finding that the City’s failure to restore the stop sign was not a cause in fact of the accident and that the sole cause in fact of the accident was the negligence of plaintiff driver.

The accident occurred at approximately 7:30 A.M., February 25, 1975, at the intersection of North Acadian Thru way East (Acadian), a two lane, paved one way street, both lanes of which are devoted to northbound traffic, and Washington Street, a two lane east-west thoroughfare on which vehicles travel in both directions. At the time of the accident, Washington Street was under extensive repair by Barber Brothers Contracting Company, Inc. (Barber), pursuant to a contract with the City. The project was then approximately 90% complete. A stop sign normally controlled westbound traffic on Washington Street. On February 5, 1975, City employees removed the sign which had not been re-erected at the time of the accident. On the day of the accident, City employees re-erected the sign after the accident happened. Mrs. Follins was traveling west on Washington Street accompanied by her 7 year old daughter. Her vehicle was struck on its left side by an automobile owned and driven by Lazzard Barrow who was proceeding north on Acadian. Barrow was insured by Motors Insurance Corporation (Motors); Barber was insured by Allstate Insurance Company (Allstate). Named defendants, in addition to the City, are Barrow, Motors, Barber and Allstate. All defendants except the City were exonerated from liability. This appeal concerns plaintiffs’ claims against City only.

The following operative facts are either undisputed or established by undisputed evidence. Acadian is the superior street and enjoys right of way over Washington. In this regard, we judicially note that Acadian is one of the principal north-south traffic arteries in the City of Baton Rouge. The stop sign which should have faced Mrs. Follins as she approached the intersection had been taken down by City employees on February 5, 1975, and was not in place at the time of the accident. Responsibility for the sign rested upon the City.

Mrs. Follins, a school teacher, lived about four blocks from subject intersection, and had lived there for more than three years prior to the accident. On the morning in question, Mrs. Follins was taking her daughter to the home of a friend who lived nearby and who was to transport the child to school that day. The child was normally taken to school by Mrs. Follins’ sister but, on this particular day, the sister was not going to work as usual. Mrs. Follins’ friend accommodated Mrs. Follins by taking the child to school occasionally. Although Mrs. Follins did not customarily take Washington Street to go to her friend’s home, she did use this route infrequently.

Mrs. Follins approached the intersection at a lawful rate of speed. She reduced her speed before entering the intersection but did not stop. She looked in both directions and did not see traffic approaching from either way. There was no impediment of her view to either her right or her left. She entered the intersection totally unaware of the presence of the Barrow vehicle. She did not apply her brakes; she made no attempt to avoid colliding with the Barrow automobile.

Mr. Barrow was proceeding on Acadian at a lawful rate of speed. When he was almost at the intersection, Mrs. Follins pulled into the intersection directly across his path. He applied his brakes and attempted to veer to his right. He could not, however, avoid the impact which occurred 10 feet west of the east parallel of Acadian and 10 feet south of the north parallel of Washington. At said point the front of the Barrow car struck the left side of the Fol-lins vehicle.

The trial court exonerated Barrow from liability on finding him free of negligence. Specifically, the trial court held that Barrow acted reasonably to an emergency created by Mrs. Follins suddenly pre-empting his right of way. Barber was relieved of liability on the finding that the City alone was responsible for erection and maintenance of the stop sign which was not in place at the time of the accident. The City was held liable on the ground that its removal of the stop sign constituted negligence because the sign was permitted to remain down for an inordinate period. The trial court also found that the absence of the sign was the cause in fact of the accident.

Expectedly, in seeking affirmance of the finding of liability and an increase in quantum, Mrs. Follins relies upon Canter v. Koehring Company, 283 So.2d 716 (La.1973), and urges that factual findings of the trier of fact, based on credibility evaluation, should not be disturbed on appeal. We are quite mindful of Canter, but find it inapplicable to the case at hand. In this instance, there is no dispute as to the facts. We are not called upon herein to resolve conflicting versions of an accident. Neither are we called upon to determine witness credibility. This case involves a question of law only; namely, what legal conclusions are proper in the light of undisputed facts.

An act leading up to an accident neither constitutes negligence imposing liability on a defendant, nor does it constitute contributory negligence barring a plaintiff’s recovery unless it is a cause in fact of the accident. Dixie Drive It Yourself System New Orleans Co., Inc. v. American Beverage Company, 242 La. 471, 137 So.2d 298 (1962); Laird v. Travelers Insurance Company, 263 La. 199, 267 So.2d 714 (1972).

To determine cause in fact, courts will carefully scrutinize all the evidence, and those acts will be adjudged causes in fact when it is found that more probably than not they were necessary ingredients of the accident. Stated otherwise, an act will be deemed a cause in fact of an accident only when, viewed in the light of all the evidence, it is concluded that it is a substantial factor without which the accident would not have happened. Laird, above.

Mrs. Follins had lived within the immediate vicinity of the accident for at least three years. Although she denied knowing that Acadian was superior to Washington at this particular intersection (because there was no signal light at the crossing), she knew that Acadian was a major traffic artery. She knew that Washington Street was under construction. While she denied knowing a stop sign usually was in place at this intersection, she admitted having taken this particular route to her friend’s home on infrequent prior occasions. Mr. Barrow was aware that Acadian was the superior street. He was proceeding at a lawful rate and reacted reasonably upon being presented with the emergency created by Mrs. Follins.

A motorist entering an intersection has the duty to look for approaching traffic and not to enter the intersection when it is patently unsafe to do so. Dillman v. Allstate Insurance Company, 265 So.2d 322 (La.App. 4th Cir. 1972).

A motorist who looks is charged with the duty of seeing that which may be observed reasonably under the circumstances. Desselle v. State Through Department of Public Highways, 328 So.2d 389 (La.App. 3rd Cir. 1976). A motorist who looks and does not see what may be seen by the exercise of reasonable care is negligent to the same extent as one who does not look at all. Welch v. Mayhall, 325 So.2d 741 (La. App. 1st Cir. 1976); Decker v. Employers Liability Assurance Corporation, 247 So.2d 232 (La.App. 4th Cir. 1971).

Considering all the evidence, we find that the trial court erred as a matter of law in concluding that the City’s negligence in removing the stop sign was a cause in fact of the accident. We find that removal of the sign was not a cause in fact of the accident. Rather, we find that the sole cause in fact was the negligence of Mrs. Follins in looking and failing to see the approaching Barrow vehicle which could and should have been observed by a motorist exercising ordinary reasonable care by slowing down and checking the traffic. There was no impediment of her vision. She could and should have seen the Barrow car in such proximity to the intersection as to make her entry imprudent. Even if she had stopped for a stop sign, the accident would not have been avoided if she had looked but failed to see the Barrow vehicle approaching.

In Dillman, above, which also involved an intersectional collision, plaintiff driver was barred from recovery under circumstances more favorable to plaintiff than those involved herein. In Dillman, plaintiff driver was unfamiliar with the intersection. In this instance, Mrs. Follins lived in the area and had traveled this particular route before. We find that Mrs. Follins’ fault was the sole cause in fact of this accident.

The judgment of the trial court casting the City in damages is reversed and set aside and judgment is rendered herein in favor of the City rejecting plaintiffs’ demands, with prejudice. All costs of these proceedings are to be paid by plaintiff, Eula V. Follins.

Reversed and rendered.


author: SARTAIN, Judge.

text:
    Louis HENSON, Plaintiff-Appellant, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Defendant-Appellee.
    No. 11648.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    Rehearing Denied Feb. 13, 1978.
    Writ Granted March 31, 1978.

      David C. Kimmel, Baton Rouge, of counsel for plaintiff-appellant Louis Henson.
    Donald S. Zuber, Baton Rouge, of counsel for defendant-appellee St. Paul Fire & Marine Ins. Co.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   SARTAIN, Judge.

Plaintiff, Louis Henson, brought this suit against defendant, St. Paul Fire and Marine Insurance Co., as the insurer of Dr. Robert A. Peden. Plaintiff alleged that Peden negligently injured him during surgery on July 5, 1973. Suit was filed on February 19, 1976. Defendant interposed the peremptory exception of prescription. No evidence was received on the exception, the defendant choosing to rely solely on the allegations of plaintiffs petition which showed that suit was filed more than one year after the surgery. St. Paul asserted that the applicable prescriptive period was one year under either the general tort prescription of C.C. Art. 3536 or the special medical malpractice prescription of R.S. 9:5628. Plaintiff relied on the doctrine of contra non valentem agere nulla currit praescriptio (no prescription runs against a person unable to bring an action) as well as the assertion that the applicable prescriptive period should be ten years under the general contract prescription of C.C. Art. 3544.

For oral reasons assigned, the trial judge held that the applicable prescriptive period was one year and dismissed plaintiff’s suit. We reverse and remand.

With respect to the applicable prescriptive period or periods, the fact that an action may constitute a tort does not prevent its also being a breach of contract. The plaintiff in such a situation has two remedies. Federal Insurance Co. v. Insurance Company of North America, 262 La. 509, 263 So.2d 871 (1972). This court has held that in situations where a single set of circumstances gives rise to an action in both tort and contract, the claims are considered separately in determining whether they have prescribed. Jackson v. Zito, 314 So.2d 401 (La.App. 1st Cir.), writs denied 320 So.2d 551, 553 (La.1975).

We first address ourselves to plaintiff’s tort claim. The applicable prescriptive period for the tort claim is one year. Under both C.C. Art. 3536 and R.S. 9:5628 one year is provided. Therefore the adoption of the special provision in 1975 does not affect this claim. It is apparent from plaintiff’s petition that this claim is prescribed unless there has been a suspension or interruption. The doctrine of contra non valentem is available in certain limited situations under Louisiana law. Being a judicially created exception to the rule that prescription runs against all persons not specifically excepted by law (C.C. Art. 3521), it is applied in a limited and restricted sense. Jackson, above.

The requirements for application of the doctrine are set out in Cartwright v. Chrys ler Corp., 255 La. 598, 232 So.2d 285 (1970). The basic idea behind the doctrine in tort cases is that prescription will not run against one who is unaware of his injuries or the cause of them when such ignorance is caused by the defendant. It is not necessary that the plaintiff have actual knowledge of the facts entitling him to bring his action. He is held to have knowledge of everything to which inquiry based on the knowledge which he does have would have led him. In the case under consideration Henson was aware immediately after the surgery that he had numbness and severe pain in the left side of his face. Dr. Peden informed him that this was normal and would cease in time. In October of 1974, plaintiff consulted Dr. Cox who informed him that he should wait six or eight months and the condition might improve. Under these alleged facts we find, as did the trial court, that as of October, 1974, plaintiff was on notice of sufficient facts to put him on inquiry. Up until that time plaintiff was not aware of his injury. He could reasonably have believed that his pain was a normal and temporary consequence of the operation. However, when he was told that the condition might improve he should have known that an injury had occurred which was apparently caused by the surgery. Suit was filed over one year after plaintiff received this constructive knowledge. -Therefore his tort action had prescribed.

On the contractual claim defendant is apparently contending both that the claim has prescribed and that the plaintiff’s petition has not stated a cause of action in contract. Defendant never filed an exception of no cause of action and has not used this phrase in brief or argument. However, we feel that his actual position is that there is no cause of action on the contractual claim. In any event, being able to notice this issue on our own motion, we do so. C.C.P. Art. 927.

Looking first to the issue of no cause of action we find that the Third Circuit has held that a medical malpractice claim cannot be considered a contractual claim unless the physician warrants or promises a particular result. Steel v. Aetna Life & Casualty, 304 So.2d 861 (La.App. 3rd Cir. 1974), writ denied 315 So.2d 144 (La.1975). The Fourth Circuit has held that such a specific promise is unnecessary in order to found such an action in contract. Creighton v. Karlin, 225 So.2d 288 (La.App. 4th Cir.), writ denied 254 La. 842, 227 So.2d 590 (1969). We believe that in his petition plaintiff has sufficiently alleged the promise of a particular result to get past the no cause of action exception even under the test of the Third Circuit in Steel, above. (Plaintiff has alleged that Dr. Peden informed him that the surgery would produce a satisfactory result and warranted that no ill effects would ensue from the operation.) However, for the reasons which follow, we choose not to base our decision on this narrow ground, but rather to follow the Fourth Circuit view in Creighton, above.

When a patient goes to a doctor for treatment and the doctor agrees to treat him a contract has been entered into. “Any other conclusion is difficult to reach intellectually.” Steel v. Aetna Life & Casualty, 315 So.2d 144 (La.1975) (JJ. Barham and Tate concurring in writ denial); see also C.C. Art. 1816. Any other conclusion would mean that a doctor would have no contractual action against his clients if they refused to pay him. He would be relegated to a quasi contractual theory of negotiorum ges-tio or unjustified enrichment. Such would certainly not be a logical conclusion.

Having determined that a contract exists in such a situation, we must decide what are the obligations of the doctor. “The obligation of contracts extends not only to what is expressly stipulated, but also to everything that, by law, equity or custom, is considered as incidental to the particular contract, or necessary to carry it into effect.” C.C. Art. 1903. It follows naturally that the doctor’s duty is that of using due care. The obligation under the contract should certainly not be less than one’s duty under general tort law. Delaune v. Davis, 316 So.2d 7 (La.App. 1st Cir. 1975).

We therefore agree with the conclusion of the Fourth Circuit in Creighton. This result is also in line with the modern civilian concept of obligations de moyen and with the decisions reached by the courts in both France and Quebec. The Work of the Louisiana Appellate Courts for the 1974-1975 Term — Contracts in Particular, 36 La. L.Rev. 417, 421-426 (1976). It is also consistent with the rule of this circuit in attorney malpractice cases. Jackson, above. The decision of the Third Circuit appears to be an importation from the common law. See 70 C.J.S. Physicians and Surgeons § 57. It has no theoretical foundation in the civilian law of obligations. In Steel the court relied on Phelps v. Donaldson, 243 La. 1118, 150 So.2d 35 (1963) to sustain its position. However, that case does not support the proposition asserted. In the case, although an exception of prescription was sustained as to the tort claim, trial was conducted on the contractual claim. The trial court found that a contract to straighten the plaintiff’s daughter’s teeth had not been proved. The Court of Appeal affirmed on the basis that the action was essentially in tort and that it had prescribed. Phelps v. Donaldson, 142 So.2d 585 (La.App. 3rd Cir. 1962). The Supreme Court, in its affirmance, followed the trial court rationale rather than that of the Court of Appeal. It was never found as a fact that the doctor performed in a substandard fashion. Apparently the plaintiff attempted to rely on the fact that her daughter’s teeth were not straightened to sustain her breach of contract action. Absent proof of a contract to cure, such proof was found to be insufficient. We believe that this is the actual holding of Phelps — plaintiff simply failed to prove a breach. Our decision here is not inconsistent with that holding. If plaintiff succeeds in proving a contract to cure, he will be relieved of his burden of proving substandard conduct. But if he does not prove such a contract he can still recover by proving Dr. Peden has violated his obligation of due care.

We next move to the assertion that Henson’s contractual claim has prescribed. In support of this contention defendant relies on R.S. 9:5628 (added by Act 808 of 1975 and amended by Act 214 of 1976). Although the alleged negligent act of defendant’s insured occurred prior to September 12, 1975 (the effective date of Act 808), suit was instituted after this date. Defendant asserts that prescription statutes are remedial and procedural in nature and that they therefore are to be applied retroactively. It is true that prescription statutes may be applied to * causes of action arising prior to their enactment, at least so long as a reasonable time is given for the assertion of rights, if the legislature so intends. Cooper v. Lykes, 218 La. 251, 49 So.2d 3 (1950). This is well illustrated in Mire v. Hawkins, 177 So.2d 795 (La.App. 3rd Cir. 1965), affirmed at 249 La. 278, 186 So.2d 591 (1966). There a statute specifically provided for retroactive effect and included a saving clause allowing those who would be cut off by retroactive application to have one year to bring their action. Such a provision was held to be valid. However, in Act 808 the legislature did not specifically address this problem. Therefore it is our duty to ascertain the presumed legislative intent as to retroactivity.

The general rule is that when a prescriptive period is changed “the time which preceded the change of legislation or altering the period of prescription, should be reckoned according to the ancient law, and that which followed according to the new law.” Goddard’s Heirs v. Urquhart, 6 La. 659, 674 (1834), accord 1 Planiol, Treatise on the Civil Law, § 248 (translation by the Louisiana State Law Institute, 1959). This solution is very equitable. In the absence of an express legislative intent to the contrary, we believe it is the rule to be followed.

In applying this proportionate method to the facts of this case we find that Henson’s contractual claim has not prescribed. He filed suit within six months of the effective date of Act 808. Therefore over one-half of the prescriptive period under C.C. Art. 3544 would have had to elapse before Act 808’s effective date in order for his claim to be prescribed. It had not done so.

The finding by the trial judge that plaintiff’s tort action had prescribed was correct. However, the plaintiff has sufficiently alleged a timely breach of contract action. We therefore reverse and remand the case to the trial court for further proceedings in accordance with law. Costs in this court are to be borne by appellee. All other costs are to await a final determination on the merits.

REVERSED AND REMANDED.

      . The alleged offense occurred prior to the effective date of Act 808 of 1975 and Act 214 of 1976, now R.S. 9:5628.

      . See Ball v. Siess, 351 So.2d 845 (La.App. 2nd Cir. 1977) recently decided by the Second Circuit, conforming to the views expressed by the Third Circuit in Steel v. Aetna Life & Casualty, 304 So.2d 861 (1974).


text:
    Alice D. WESLEY, Plaintiff-Appellee, v. S. S. KRESGE COMPANY et al., Defendant-Appellant.
    No. 11649.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    Rehearing Denied Feb. 13, 1978.

      James R. Coxe, III, Baton Rouge, of counsel for plaintiff-appellee Alice D. Wesley.
    Frank M. Coates, Jr., Baton Rouge, of counsel for defendant-appellant S. S. Kresge Company, Inc., et al.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   SARTAIN, Judge.

Plaintiff, Alice D. Wesley, brought this action against her former employer, S. S. Kresge Co., alleging that she was totally and permanently disabled by an accident which occurred within the course and scope of her employment on June 28, 1975. She sought workmen’s compensation benefits under the provisions of the Louisiana Workmen’s Compensation Law in effect on the date of her injury, as well as penalties and attorney’s fees for arbitrary and capricious refusal to pay such benefits. The trial judge found that plaintiff had been totally and permanently disabled by her work-related injury and awarded benefits accordingly. He denied the claim for penalties and attorney’s fees. Defendant appealed the judgment of the trial court. Plaintiff did not appeal or answer defendant’s appeal. Therefore the dismissal of her claim for penalties and attorney’s fees is not before us. We affirm.

Mrs. Wesley, while working as a cashier, injured her back picking up some paper bags in defendant’s stock room. She had been told to get the bags by her supervisor for use at her cash register. Mrs. Wesley had had prior back trouble and had undergone a back operation. However, at the time of the injury in question she was experiencing no back pain. After her injury plaintiff worked several days before consulting a physician. She was referred to Dr. James A. Poche, who ordered a myelo-gram. Based on the results of the myelo-gram, Dr. Poche recommended surgery, which was performed. After the surgery plaintiff continued under the care of Dr. Poche for about eight months. During this time she received compensation benefits from defendant. When plaintiff returned to her former job, after being released by Dr. Poche, these benefits were terminated.

Plaintiff worked at her former job as cashier for several days. She found the work to be extremely painful to her back, especially the requirement that she stand for long periods of time. She therefore quit the job. Several days later she obtained a job as a waitress and cashier at a lounge. At this job she was not required to stand for long periods and she was therefore able to perform her duties.

Defendant urges that the testimony of plaintiff that she suffers great pain while standing for long periods should be found unworthy of belief. The trial judge who was able to observe the witnesses found plaintiff’s testimony credible. His determination of factual questions such as this should not be disturbed absent a showing of manifest error. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

The facts upon which defendant bases its argument are as follows: Plaintiff falsely concealed her prior back problems in her job application to defendant. She began work at a job requiring at least some standing almost immediately after she left her job with defendant. There was no testimony that the accident caused any physical changes in her back which were not corrected by the surgery. Plaintiff’s testimony that she suffered great pain was un-contradicted, however. Both doctors who treated plaintiff testified that she could be experiencing such pain. Considering the testimony presented we do not believe the trial judge committed manifest error in accepting Mrs. Wesley’s uncpntradicted testimony.

We next must determine whether under the facts found Mrs. Wesley is totally and permanently disabled. Under the law in effect at the time of plaintiff’s injury, if an injury substantially decreased the ability of an employee to compete with able-bodied workers in the labor market for the job which he held prior to the injury, he was considered totally and permanently disabled. Futrell v. Hartford Accident & Indemnity Co., 276 So.2d 271 (La.1973). We find that being unable to stand for extended periods has substantially decreased plaintiff’s ability to compete for jobs as a cashier. Although there may be cashier positions available which do not require extended standing, the fact that plaintiff is restricted to these jobs by her injury is sufficient to constitute her being totally and permanently disabled.

The judgment is affirmed at defendant-appellant’s cost.

AFFIRMED.


text:
    Carl T. JEANSONNE, Plaintiff-Appellant, v. PARISH OF EAST BATON ROUGE, Defendant-Appellee.
    No. 11663.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    Rehearing Denied Feb. 13, 1978.
    Writ Refused March 27, 1978.
    Richard E. Burton, Baton Rouge, of counsel for plaintiff-appellant Carl T. Jean-sonne.
    Joseph F. Keogh, Parish Atty., Charles E. Pilcher, Asst. Parish Atty., Baton Rouge, of counsel for defendant-appellee Parish of East Baton Rouge.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   SARTAIN, Judge.

Plaintiff brought this action for workmen’s compensation benefits alleging that he had been injured while serving as a juror in the 19th Judicial District in East Baton Rouge Parish. Defendant filed an exception of no cause of action on the ground that a juror is not an employee of the parish within the contemplation of the Louisiana Workmen’s Compensation Law and, therefore, the parish owes no benefits to a juror. The trial judge sustained this exception and dismissed plaintiff’s action. Plaintiff thereupon appealed. We affirm.

The single issue for our determination is the application of R.S. 23:1034 to a juror. This section provides:

“The provisions of this Chapter [Workmen’s Compensation] shall apply to every person in the service of the state or political subdivision thereof, or of any incorporated public board or commission authorized to hold property and to sue and be sued, under any appointment or contract of hire, express or implied, oral or written, except an official of the state or other political subdivision thereof or of any such incorporated public board or commission; and for such employee and employer the payment of compensation according to and under the terms, conditions, and provisions set out in this Chapter shall be exclusive, compulsory, and obligatory. * * *”

These provisions require that a worker must be an “employee” of the state or other political subdivision before he is covered by the compensation act. Jones v. Houston Fire & Casualty Insurance Co., 134 So.2d 377 (La.App. 3rd Cir. 1961). We do not believe that a juror is employed by the parish. Employment presupposes an agreement entered into between two parties. In the relationship between a juror and the parish there is no agreement. Both sides are bound by statute to perform as they do. The mere fact that the parish is required to pay some slight compensation to jurors is not sufficient to constitute them its employees. Prisoners likewise receive some compensation for their labor but this does not make them state employees. Parker v. State, 353 So.2d 333 (La.App. 1st Cir. 1977); Jones v. Houston Fire & Casualty Insurance Co., supra.

In reaching our conclusion that a juror is not covered by our Workmen’s Compensation Law, we note that such result has been reached by the overwhelming majority of states deciding the question. Metropolitan Dade County v. Glassman, 341 So.2d 995 (Fla.1976); 1-A Larson, The Law of Workmen’s Compensation, § 56.35 (1973).

For the reasons assigned, the judgment is affirmed at appellant’s cost.

AFFIRMED.