text:
    Ethel MARSHALL et al. v. GREATER NEW ORLEANS EXPRESSWAY COMMISSION.
    No. 10016.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 5, 1979.
    Rehearing Denied July 12, 1979.

      Keiler & Buckley, Edward H. Keiler and Sam 0. Buckley, River Ridge, for plaintiffs-appellants.
    Leach, Paysse & Baldwin, Michael A. Britt, and James J. Morse, New Orleans, for defendant-appellee.
    Before SAMUEL, BEER and GARRISON, JJ.
   SAMUEL, Judge.

Plaintiffs, widow and children of Girard Marshall, filed this wrongful death action against the Greater New Orleans Expressway Commission seeking to recover damages for the death of their husband and father. Mr. Marshall was killed when the car he was driving in a southerly direction missed a curve at the south end of the Lake Pontchartrain Causeway and struck a concrete toll booth. Defendant answered, denied negligence on its part, and alleged contributory negligence on the part of the decedent in operating his vehicle at too fast a speed while under the influence of alcohol.

After a trial on the merits, judgment was rendered dismissing the suit. Plaintiffs have appealed.

The decedent was the only occupant of his vehicle and there were no witnesses to the accident. The collision occurred at approximately 9:30 p. m. on December 20, 1973. Mr. Marshall died 10 days later.

In this court appellants point to the absence of a warning sign or signs at the time of the accident and they rely on the case of Vervik v. State, Department of Highways, which stands for the proposition that when a curve is dangerous, the failure to post an adequate warning sign is the legal cause of an accident resulting from a driver’s failure to properly negotiate the curve.

Appellants argue the trial judge committed error by not admitting evidence to show the nature of the curve in its entirety, namely that it was a sharp 6V20 “S” curve, and by relying on ball bank indicator results rather than considering the nature of the curve in its entirety. They contend ball bank indicator tests are not applicable where, as in the Vervik case and in the present case, the driver does not negotiate the curve but simply drives straight through it.

It is not necessary for this court to reach a decision on the dangerous nature of the curve or whether the trial judge committed error by relying on ball bank indicator tests. The record contains more than sufficient evidence to show the decedent knew of the existence of the curve and that its surroundings gave adequate notice to oncoming drivers of its existence, thereby obviating the need for a specific sign.

The officer who investigated the accident, as well as appellant’s expert civil engineer, testified the causeway begins a downward slope approximately 500 feet from its southern end. At this point the lights on the south toll plaza were clearly visible to an approaching motorist, as were two light standards at the extreme end of the bridge. As a driver approaches the southern end of the bridge at night, the lights on the toll plaza become visible, then the 4 inch high raised painted curves in the plaza are visible markings to show the lanes of travel. The toll booth structure itself can be seen from a great distance.

In addition, approximately Vs of a mile from the south end of the causeway, a sign, which read “Speed Zone Ahead”, was posted to indicate an impending reduction of speed. Approximately ¼ of a mile from the end of the bridge an additional sign instructed the motorist to lower his speed to 50 miles per hour. At the point where the 50 mile per hour speed limit sign was posted, the lights of the toll booth structure were clearly visible to approaching motorists.

The record shows the speedometer in decedent’s vehicle was stuck at 72 miles per hour after the collision, and the vehicle’s battery was thrown from under the hood into the toll booth area, a considerable distance away.

Here, the evidence shows the accident was not caused by negligence on the part of the defendant. As has been pointed out, in the present case numerous signs, lights and other physical structures gave warning of the existence of the toll booths and of the curve. This and the fact that the decedent was familiar with the area and the curve are sufficient to justify the trial court’s conclusion, with which we agree, that the sole cause of the accident was the decedent’s excessive speed and apparent lack of attention in the operation of his vehicle.

The Vervik case is not applicable. In Vervik the decedent was not familiar with the area, trees and a ditch associated with the curve were situated in such a way as to cause a driver to presume the road continued in a straight line, and the evidence did not indicate the vehicle was operated at an excessive rate of speed.

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

AFFIRMED.

      . La., 302 So.2d 895.


source: Caselaw Access Project

author: STOULIG, Judge. LEMMON, Judge,

license: Public Domain

text:
    Robert MICHAELSON and Michaelson Enterprises v. Mike MOTWANI, Motwanes America, Inc., and Guru of India Shops, et al.
    No. 10029.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 5, 1979.

      Oestreicher & Whalen, David W. Oestr-eicher, II, New Orleans, for plaintiff s-appel-lees.
    Henican, James & Cleveland, C. Ellis Henican, Jr., A. Reed Sharpe, Jr., New Orleans, for defendants-appellants.
    Before SAMUEL, LEMMON and STOULIG, JJ.
   STOULIG, Judge.

This is an appeal from a judgment enjoining the defendants, Guru of India, Inc., Kishore V. Motwani and Motwanes of America, Inc., from using a Mardi Gras decal they allegedly pirated from the plaintiff Robert Michaelson by embossing the decals on T-shirts with a heat transfer process.

Defendants operate a shop at 435 Bourbon Street in New Orleans. On January 11, 1978, plaintiff Robert Michaelson, doing business as Michaelson Enterprises, sold 2,000 sublical decals to Mike Motwani, one of the owners of the shop. A short time later plaintiff was informed by Chandru Motwani, a brother of the original buyer, that the order was cancelled. That same Mardi Gras season plaintiff became aware that defendants were selling a T-shirt on which his designs were embossed. At the time of these sales the decals allegedly copied by defendants bore a “C” indicating plaintiff had an application pending for a copyright. (The record does not disclose whether the copyright was ultimately granted or if the design is one for which a copyright will issue.)

The trial court issued a preliminary injunction:

“* * * restraining, enjoining and prohibiting Guru of India, Inc. and or Guru of India Shops and Mutwani, Mot-wanes of America, Inc. all persons or business interests associated with or employed by said corporations from using the decals or sub-decals designed by plaintiff; from transferring said designs onto T-Shirts or other products sold by said defendant corporations, and from selling any T-Shirts or other products onto which plaintiff’s designs have been transferred or placed.”

Pursuant to C.C.P. art. 2163, appellants filed an exception of no cause of action in this court based on either of two theories, namely, (1) that federal courts have exclusive original jurisdiction to hear cases in which the complaint is an infringement of a copyright; and (2) that the Louisiana “Unfair Trade Practices and Consumer Protection Law” (R.S. 51:1401 et seq.) reserves the right to seek injunctive relief to the attorney general. (Section 1407).

The injunction should be dissolved. Although plaintiff’s petition does not claim copyright infringement, the gravamen of his complaint is that the decals at issue were pirated when he had pending copyright applications. 28 U.S.C. § 1338(a) vests exclusive jurisdiction to hear patent and copyright cases in federal courts. As was noted by the Court in Sears, Roebuck & Co. v. Stiffel Company, 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964), jurisdiction was so restricted to have national uniformity in patent and copyright laws. (A succinct discussion of the need to balance private interests against that of the public weal is included in Sears.) As Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964), points out, the states may legislate and regulate areas of trade dealing with copying unpublished or uncopyrightable items. Because we have not been informed whether the decals are subject to copyright protection, we act on the record as it is presently constituted and hold that the pending copyright application brings this within the exclusive federal jurisdiction.

However, were we to conclude the state could regulate in this area, we note that R.S. 51:1407 permits the attorney general to “* * * bring an action for in-junctive relief in the name of the state * * * ” while Section 1409 reserves to private individuals the right to sue for damages. Under this law, the state alone is entitled to injunctive relief.

We need not resolve problems relating to inadequate citation in view of the result we reach, but point this out because there remains pending in district court a damage claim by plaintiff against these defendants. We further emphasize the scope of our review is limited to the injunction issued by judgment of the trial court from which this appeal was taken.

For the reasons assigned the writ of preliminary injunction is dissolved and the judgment appealed from is annulled. Plaintiff is to pay all costs incurred through the time of this appeal.

WRIT DISSOLVED; JUDGMENT ANNULLED.

LEMMON, J., concurs with written reasons.

LEMMON, Judge,

concurring and assigning reasons.

If the article has been patented or copyrighted, plaintiff’s source of protection lies in the federal courts. This article apparently has not been patented or copyrighted, and plaintiff may not use the state unfair trade practices law to prevent its being copied, because the states have no legislative jurisdiction to prohibit the copying of the article. An article unprotected by a patent or a copyright is the public domain and (possibly with certain limitations not here applicable) may be copied at will. Compco Corp. v. Day-Brite Lighting, Inc., above.

Thus, plaintiff’s petition fails to state a cause of action for which relief can be granted.

Furthermore, I do not join in any comment in dicta that a private person has no right to sue for injunction of an unfair trade practice and reserve judgment until that issue is squarely presented.


author: BEER, Judge.

text:
    Eric MONETTE v. Charles KILGORE, Paul Floth, Ray Brooks, Dennis Cavalero, William Lowery, John Hurst, George Virga, Dean Blackwell, Chuck Lambert, Clark Johnson, Cliff Falgout, Walter Marchand, Travelers Insurance Company, Delta Erection, Inc. and A.B.C. Insurance Company.
    No. 10100.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 5, 1979.
    Writ Refused Sept. 4, 1979.

      Leach, Paysse & Baldwin, Richard C. Baldwin, and Beard, Blue, Schmitt, Mathes, Koch & Williams, William G. Tabb, III, New Orleans, for defendants-appellants.
    Tonry & Mumphrey, J. Wayne Mum-phrey, Chalmette, and Reed & Reed, Bruce G. Reed, New Orleans, for plaintiff-appel-lee.
    Before REDMANN, BEER and GARRISON, JJ.
   BEER, Judge.

This is a tort suit. The jury returned a 10-2 verdict in favor of the plaintiff in the amount of $400,000. Appellants have limited their suspensive appeal to the quantum issue.

Eric Monette was 23 years old at the time of the accident (August 12,1976). He testified that he was working from a crane basket when an explosion occurred. He jumped from the basket to the ground, injuring his left heel and back. He was examined at Chalmette General Hospital and released that same evening.

On the following day, Dr. Henry J. Zac-kin, a general surgeon, diagnosed Monette’s injuries as a sprained left ankle, possible fracture of the left heel, abrasion of the right pretibial area, ringing in the left ear and low back muscle strain. By August 30 (approximately 2½ weeks later), Dr. Zackin advised Monette to discontinue use of the back brace he had prescribed after his initial examination and, by September 9, to discontinue the use of the walking cane also previously prescribed. Dr. Zackin discharged Monette for full duty as of October 21, at the time observing that it would take some time for the residual discomfort of the back strain to completely subside.

While still under Dr. Zackin’s care, Mon-ette was also seen by Dr. Gernon Brown, an orthopedic surgeon. Dr. Brown’s examinations revealed no objective evidence of disc pathology or disability. His opinion was based on four orthopedic examinations. He believed that Monette could return to full time employment at his usual job without limitation. (R., pp. 813-818.) At the trial, he discounted the reliability of x-rays taken by Dr. Alain Cracco because of exposure and location problems. (R., pp. 823-825.) He read the myelogram performed by Dr. Cracco as normal (R., p. 835), pointing out certain technical problems of interpretation. (R., p. 856.)

On October 29, 1976, Monette was first examined by Dr. Cracco, an orthopedic surgeon, who testified that all test results conducted at that time were negative for disc injury but indicated that he had noted disturbed lumbopelvic rhythm which he described as slight hesitation upon bending to touch toes. (R., pp. 275-276.) On the same date, x-rays were taken which, in his opinion, revealed some disfunction of the 4th and 5th vertebrae upon bending to the left. (R., p. 284.) He recommended physical therapy. Improvement was noted on November 24. By December 14, symptoms were essentially non-existent, but the x-rays did, nevertheless (in his opinion), confirm “non-participation” of the L4-5 discs on lateral bending to the left. An electro-myograph was believed by Dr. Cracco to indicate chronic “denervation” involving the L-A nerve root.

Then, on January 6,1977, Dr. Cracco suggested that Monette perform no work for ten days and, thereafter, return to light duty. On January 26, 1977, Monette complained to Dr. Cracco of sudden onset of low back pain while mopping. Dr. Cracco recommended no more mopping. (R., pp. 302-303.) He released Monette for light duty on February 5. He saw Monette on five more visits that year. (R., p. 318.) His findings on these occasions were essentially normal (R., p. 346), but light duty was, nevertheless, recommended. (R., p. 317.) Then, on February 22, 1978, Monette complained of back pain after digging a hole (R., p. 318). Dr. Cracco recommended a myelogram which was performed on February 27, 1978. Dr. Cracco thereafter interpreted the myelogram as showing a filling defect at L4-L5 and L5-S1 (R., p. 322). In his opinion, a venogram (which was taken at the same time by Dr. Fortenberry) indicated a “pressure defect” at L-4 on the left side. (R., p. 323.)

On cross-examination, Dr. Cracco acknowledged that as early as December 15, 1976, plaintiff did not demonstrate disturbance of the lumbopelvic rhythm. He further acknowledged that his report of March 18,1977 referred only to “indirect” evidence of disc disease (R., p. 339); that his report of June 21, 1977 recommends that Monette resume his full work activity (R., p. 341); and that his report of July 5, 1977 indicated that there were no contraindications to Monette’s resuming full work activity. (R., p. 342.) Dr. Cracco could not estimate any percentage of disability attributable to Monette’s August 12, 1976 injury; however, he felt that Monette should try to avoid heavy labor.

On December 7,1977, Monette was examined by Dr. Essom Elmorshidy, an orthopedic surgeon. Dr. Elmorshidy found spasm of the paraspinal muscles and straight leg raising was diminished. (R., p. 723.) He diagnosed a lumbrosacral sprain, and prescribed rest and muscle relaxants, estimating a one-week disability. (R., p. 724 and 726.) His December 13 examination revealed lessened spasm (R., p. 727), and he recommended that Monette return to work. (R., p. 727.)

Dr. Eugene Dabezies, who was qualified as an expert in the field of orthopedic surgery and herniated disc disease, examined Monette on November 2, 1976 and found the examination to be normal. (R., p. 767 and 769.) None of the x-rays taken by Dr. Dabezies indicated any abnormality. (R., p. 768 and 769.) However, his examination of the previously discussed myelogram indicated an abnormal disc. (R., pp. 780-781.)

Dr. Richard Levy, an expert in the field of neurosurgery, examined Monette on April 13, 1978 and found no evidence of spinal cord or nerve root injury or disease. (R., p. 882.) In his opinion, the previously discussed myelogram was normal. (R., p. 885 and 894.) He believes that Monette should be fully able to continue working without problems. (R., p. 896.)

Dr. Lowell Hurwitz, an expert radiologist, interpreted the myelogram as positive at L4-5 and L5-S1. (R., p. 925.) He explained that his function is to give an impression which serves as an aid to the treating physician, although Dr. Levy had challenged the capability of a radiologist to render a medical opinion regarding the my-elogram.

Grenes Meyoski, president of O.C.A.W. Local 4-522, testified regarding the basic hourly wage rate for a laborer at Tenneco, and Dr. Seymour S. Goodman, an economist, calculated Monette’s alleged loss of earning capacity by applying the following factors: 36.7 years work life expectancy, 5⅞% discount, 7.07% wage increase, and overtime hours at time and a half. He concluded that by using the undiscounted minimum wage at the 1981 rate, Monette’s work life income would be $256,709.16. (R., p. 704.) There was extensive testimony on the effects of inflation. Dr. Goodman acknowledged that he had neither verified the wage figures given to him by plaintiff’s attorney nor the overtime hours used in his calculation.

Monette claims that he last worked on a full time basis in February, 1978, and that he can no longer perform any type of labor because of his back. (R., p. 471.) He stated that the venogram and myelogram were very painful. (R., p. 473.) Two separate automobile accidents (in 1973 and 1975) resulted in no back involvement. (R., pp. 467-468), which is why he did not report either of these accidents to any of the physicians who saw him. (R., pp. 467-468.) He is a high school graduate and has been previously employed as bricklayer, a hospital orderly, an apprentice pipe fitting plumber and also as a worker for United Parcel Service. (R., pp. 437-439.)

The jury’s lump sum award of $400,000 represents an abuse of their much discretion. Accordingly, following Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), and its progeny, including the most recent pronouncement by our brothers of the First Circuit in Parker, et al. v. Travelers Insurance Company, et al., Number 12,-430, consolidated with Pellegrin, et al. v. Travelers Insurance Company, et al., Number 12,431, handed down March 5, 1979, 369 So.2d 1120 (La.App.) we limit our modification so as to decrease the award only to an amount that is the maximum which would not have constituted such abuse and, accordingly, set the award at $85,000. Thus amended, the judgment js affirmed. Each party is to bear its own costs of this appeal.

AMENDED AND, AS AMENDED, AFFIRMED.

      . September 30, 1976; October 27, 1976; March 4, 1977; March 29, 1977.


author: LEMMON, Judge.

text:
    Lois Girrard BERGERON, wife of John J. Bergeron, Sr. v. John J. BERGERON, Sr. John J. BERGERON, Sr. v. Lois Girrard BERGERON, wife of John J. Bergeron, Sr.
    No. 10141.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 5, 1979.
    Rehearing Denied July 12, 1979.

      Keiler & Buckley, Edward H. Keiler and Samuel 0. Buckley, River Ridge, for plaintiff-appellee.
    Caryl H. Vesy, New Orleans, for defendant-appellant.
    Before LEMMON, SCHOTT and GARRISON, JJ.
   LEMMON, Judge.

In these consolidated actions John Ber-geron has appealed from a judgment which dismissed his suit for separation grounded on cruel treatment and granted a separation to his wife in her suit grounded on abandonment. The principal issue on appeal is whether the record supports a finding of abandonment.

Each of the parties had children of a previous marriage. After the parties married in February, 1976, the husband’s daughter and the wife’s son and daughter lived with them. The parties lived together for two years, during which Mr. Bergeron left his wife on three occasions. He did not return after the last departure.

Mr. Bergeron blamed the marital discord primarily upon problems with his wife’s son, Robert. Prior to the marriage Robert had been in a mental institution, and Mr. Ber-geron assisted in his release, suggesting he might do well at home with a father image there. However, according to Mr. Berger-on, the boy quit school after being suspended several times, was in trouble with the police on several occasions, hit his stepsister with an ashtray, kicked the neighbor’s child in the head while the child was fighting with his sister, cursed his mother and stepfather, and threatened to stab his stepfather during sleep. Mr. Bergeron arranged to send Robert to a school in Texas for education and treatment, but his wife refused to force Robert to go when he declined to do so freely.

Mr. Bergeron also stated that he could no longer live with his wife, even if there were no problems with Robert. He complained mainly about her attitude toward his children and stated that he had returned on previous occasions only after they had agreed not to let their children interfere with their marriage.

Mrs. Bergeron confirmed that Robert was not their only problem, stating they had many problems in the second year of marriage, after a happy first year, due principally to interference from his children and from hers. She attributed the intensity of many difficulties to the failure of Mr. Ber-geron and his children to communicate dissatisfaction with particular incidents or situations, which resulted in constant tension.

While Mrs. Bergeron professed she loved her husband and “didn’t want a divorce to begin with”, she stated in effect, when asked whether she had requested him to come back to the dwelling, that they had reached a point of no, return.

On this record the trial court properly concluded Mr. Bergeron had failed to prove cruelty. However, noting Mr. Bergeron “acknowledged that he left”, the court then opined the wife was entitled to a separation grounded on abandonment. We disagree with the latter conclusion.

C.C. art. 143 specifies the essential elements of abandonment as (1) withdrawal from the common dwelling, (2) absence of lawful cause for withdrawal, and (3) refusal of the spouse who withdrew to return to live with the other. The party seeking a separation grounded on abandonment must prove all three elements. To obtain a judgment of separation the party cannot merely prove his or her spouse left the common dwelling and then rely on the spouse’s failure to prove a case grounded on fault in the consolidated suit.

This problem is typically encountered when one spouse sues for separation based on fault and the other files a reconventional demand based on abandonment. The spouse instituting the suit based on fault (other than abandonment) does not automatically lose the reconventional demand if he cannot produce sufficient proof of fault.

Abandonment is a fault-based ground for separation, and the plaintiff has the burden of proving fault. This burden is not met when the other party fails to prove fault in a separate demand or a separate consolidated suit. Sykes v. Sykes, 321 So.2d 805 (La.App.4th Cir. 1975).

One of the essential elements of fault is the withdrawing spouse’s refusal to return, and C.C. art. 143 clearly contemplates that a hasty or impulsive withdrawal by one party from the common dwelling shall not in itself furnish grounds for separation based on abandonment or desertion. There must be a degree of permanency to the decision to withdraw, evidenced by a constant refusal on the part of the withdrawing spouse to return to the common dwelling. Sciortino v. Sciortino, 188 So.2d 224 (La.App. 4th Cir. 1966), cert. den. 190 So.2d 237; 27 La.L.Rev. 423, 425 (1967).

Furthermore, all of the essential elements of abandonment must be shown to be involuntary on the part of the spouse bringing the action. Thus, just as the initial withdrawal from the common dwelling must be without the consent of the other spouse in order to constitute an abandonment or desertion, the refusal to return to the common dwelling must also be a decision which is not based on mutual agreement.

In the present case, while Mrs. Ber-geron did not have to show that she had initiated an attempt for reconciliation, it was necessary for her to show that her husband’s remaining away was by his choice and was without her consent. In testifying that she had spoken to him, but had not asked him to return, she commented that they had separated before, that they had both spent money on lawyers, and that “(i)t’s just ridiculous, I mean, either we make it or we don’t and I told him that, you know”. The import of her testimony was that their remaining apart was by mutual agreement based on their recognition and acceptance of substantial and irreconcilable differences as to the handling of their children.

We therefore conclude that neither party established fault on the part of the other.

Accordingly, the judgment of the trial court dismissing John Bergeron’s suit is affirmed. The judgment in the suit brought by Mrs. Lois Bergeron is reversed, and it is now ordered that her suit be dismissed. Each party is to bear his own costs.

AFFIRMED IN PART, REVERSED AND RENDERED IN PART.

      . C.C. art. 143 provides:
      “Separation grounded on abandonment by one of the married persons can be admitted only in the case when he or she has withdrawn himself or herself from the common dwelling, without a lawful cause, has constantly refused to return to live with the other, and when such refusal is made appear in the manner hereafter directed.”

      . Thus, the codal article emphasizes preservation of the marriage and does not offer abandonment as an easy method for one party to obtain a judgment of separation if the other party left the common dwelling under the honest belief he was justified in doing so.

      . By adding Paragraph 10 to C.C. art. 138 in 1977, the legislature has recognized the existence of irreconcilable differences as a ground for separation, after a period of living separate and apart voluntarily for six months.


author: SCHOTT, Judge. LEMMON, Judge,

text:
    Sandra Mutina RUDLOFF v. LOUISIANA HEALTH SERVICE AND INDEMNITY COMPANY, d/b/a Blue Cross of Louisiana.
    No. 10142.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 5, 1979.
    Writ Granted Sept. 4, 1979.
    Howard E. Sinor, Jr., Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for defendant-appellant.
    Leon M. Rudloff, New Orleans, for plaintiff-appellee.
    Before LEMMON, SCHOTT, and GARRISON, JJ.
   SCHOTT, Judge.

Plaintiff’s husband was an employee of the City of New Orleans and a subscriber to the group insurance contract issued by defendant to the City. Plaintiff was covered under the policy as a dependent. From May 30 to June 17, 1977, plaintiff was hospitalized and incurred billing of $1254.41 as a result. Claim was made for this amount against defendant but it refused to pay because of an exclusion in the policy with respect to hospitalization for mental or nervous disorders.

There is no dispute as to the facts that plaintiff’s hospitalization was incurred because of a mental or nervous disorder and that the policy contains the exclusion. The issue arises out of the following provisions of LSA-R.S. 22:213.2:

“A. Every insurer authorized to issue policies of health and accident insurance in [the] state shall offer to all prospective group, blanket, and franchise policyholders at their option a provision in the insurer’s health and accident insurance policies which shall state that benefits shall be payable for services rendered for the treatment of mental and/or nervous disorders, under the same circumstances, conditions, limitations, and exclusions as benefits are paid under those policies for all other diagnoses, illness, or accidents;

The trial court awarded plaintiff the amount she claimed with legal interest from date of judicial demand and costs. Defendant filed a request pursuant to C.C.P. Art. 1917 for written findings of fact and reasons for judgment, but the trial judge failed to comply with this request. In any event, since his attention was directed to the cited statute, he necessarily found that no offer was made for benefits with respect to mental or nervous disorders under the same conditions as the other benefits were payable and this provided a basis for the award to plaintiff of the amount she claimed. Defendant appealed and plaintiff answered the appeal, seeking penalties and attorney’s fees under R.S. 22:657.

At the trial the employee of the City who administers the group policy testified as well as the defendant’s representative who worked with the City. From this testimony defendant attempted to prove that an offer was made to the City to include the coverage, but the trial judge was apparently convinced that no such offer was made. Without a doubt defendant made a written offer to include coverage for mental or nervous disorders but the benefits would amount to only 50% of the cost of the services, whereas benefits for covered services were 80% of the charges. After defendant’s representative testified that a verbal offer was made to the City for the coverage required under the statute the trial judge commented flatly that he was not going to give any weight to this testimony and made a spontaneous credibility call against defendant. Thus, we are convinced that the trial judge correctly found that defendant did not comply with the statute. This determination renders moot the proposition advanced by plaintiff that her contract with the defendant was independent of the group policy and the offer to provide such coverage had to be made to her, even if properly made to the representative of the City.

The parties have raised a number of important legal issues in the case. Defendant contends that plaintiff is not entitled to the amount she claims even if it did not comply with the statute because this would amount to a reformation of the contract and afford a remedy to plaintiff which the legislature did not contemplate. On the other hand, plaintiff relies on statutory and jurisprudential authority to support the result. Finally, plaintiff contends that she is entitled to the penalties and attorney’s fees under the facts of this case and the law based upon defendant’s arbitrary refusal to pay her claim.

However, none of these issues need be addressed considering the decision of the Supreme Court in Tabb v. Louisiana Health Services and Indemnity Co., 361 So.2d 862 (La.1978). In that case the court held that a policy like the one sued on in the instant case is not a health and accident insurance policy as defined by R.S. 22:6(2). That being so, R.S. 22:213.2, which specifically has to do with health and accident insurance, has no application to the policy sued on. Plaintiff’s argument that the court erred in the Tabb decision seems meritorious, especially considering that R.S. 22:6{2)’s concluding catchall phrase “and every insurance appertaining thereto.” However, while we disagree with the court’s decision in the Tabb case we are controlled by that decision and must reach the result that R.S. 22:213.2 has no application to the policy involved in this case.

Accordingly, the judgment appealed from is reversed and set aside, and there is judgment in favor of defendant, Louisiana Health Service & Indemnity Company, and against plaintiff, Sandra Mutine Rudloff, dismissing her suit at her cost.

REVERSED AND RENDERED.

LEMMON, J., concurs with written reasons.

LEMMON, Judge,

concurring and assigning reasons..

In the Tabb case this same insurer protested vigorously in its application for rehearing that it was a health and accident insurer and was authorized by the Commissioner of Insurance to engage in the “life and health and accident insurance business and no other”. Three members of the Supreme Court voted to grant a rehearing.

In Meyer, Life and Health Insurance Law (1972), the author in Chapter 12, entitled Individual Accident and Health Policy, discusses the terminology, coverage, benefits and limitations of health and accident policies. Section 12:1 notes that an insurer typically contracts to pay benefits in the event of insured losses and agrees to provide coverage for losses resulting from sickness or accidental, injury, as defined. Section 12:9 states that the primary benefits provided by health and accident policies are (1) medical expense, (2) disability, and (3) accidental death and dismemberment benefits. Section 12:22 is concerned with the exclusion of mental and nervous disorders, which is the particular issue in the present case.

R.S. 22:6 defines health and accident insurance as “(i)nsurance against bodily injury ... by accident and against disablement resulting from sickness . . In the policy at issue the insurer agrees “to provide hospital services and surgical-medical services” for “disabilities arising out of illness or infirmity”. Some benefits are also payable for “nonoccupational accidental injury”.

With due respect I disagree with the rationale of the Tabb case that the policy did not insure against injury or disablement, but “only provided benefits for hospital and medical care”. This approach places undue emphasis on the limited benefits provided by these policies, when the nature of the policy is more appropriately determined by the type of loss which gives rise to payment of benefits.

Following the Tabb rationale in the present case results in frustration of the legislative purpose of R.S. 22:213.2. Achievement of substantial justice in the present case requires reconsideration of the Tabb decision.


text:
    David H. STRONG, Jr. v. DEPARTMENT OF POLICE.
    No. 10152.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 5, 1979.

      Kierr, Gainsburgh, Benjamin, Fallon & Lewis, Gerald E. Meunier, New Orleans, for plaintiff-appellant.
    Donald A. Hoffman, Marc G. Shachat, Jerry M. Lankford, New Orleans, for defendant-appellee.
    Before SAMUEL, BOUTALL and BEER, JJ.
   BEER, Judge.

David Strong appeals from his dismissal from the New Orleans Police Department based upon a finding that he was untruthful in the course of an earlier hearing before the Civil Service Commission. That original hearing dealt with Strong’s appeal from a 30-day suspension for failure to properly guard a prisoner. The failure to properly guard case was continued on one or two occasions and ultimately rescheduled. Although the hearing had been originally scheduled to be conducted in a conference room at City Hall, last minute changes necessitated a transfer of the hearing to a conference room at the Public Library. Strong went on record to complain that he had not been notified of the relocation until that morning and was, accordingly, unable to notify his attorney of the change. Thus, he contended that he was effectively deprived of his right to be represented by his attorney. The hearing officer thereupon offered to continue the hearing, but Strong indicated a specific desire to have the hearing proceed.

Subsequently, it was factually determined by the Commission that Strong did not — at the time of his complaint — have an attorney. The “attorney” to whom Strong referred was Mr. James Hayes, assistant director of Treme Community Improvement Association. Hayes, who is not an attorney, testified that he at no time indicated to Strong that he was an attorney at law.

Thus confronted, Strong acknowledged that he actually intended to represent himself and only intended to use the individual he had referred to as his attorney in an advisory capacity. He attempted to explain his allusion to that person as an attorney because the delays and confusion surrounding the hearing caused him to be irate and upset.

We conclude that the Commissioner’s finding of untruthfulness is supported by the record and we agree with that finding. We further conclude that the offense bears a sufficiently substantial relationship to the proper and efficient operation of the police department to form a valid basis for dismissal. Accordingly, there is no basis upon which we should substitute our views with respect to the penalty imposed.

In view of the Commission’s finding that . . the evidence was clear that appellant did not have an attorney . . . ” and its conclusion to the effect that a police officer has occasion to testify under oath “. . . and it is compulsory that he be truthful at all times. The City cannot use a Police Officer who is not truthful,” we reject, as essentially moot, the contentions advanced by the City of New Orleans in their answer to the appeal.

The judgment of the Civil Service Commission, dated September 27, 1978, which dismisses Strong’s appeal, is affirmed. Each party is to bear its own cost in this court.

AFFIRMED.

      . The transcript reads as follows:
      “I would like it to be known that no one in the Civil Service Department or the Police Department or anybody informed me as to where my hearing is supposed to be. Thus, I wasn’t able to contact my attorney in time to have him here representing me and I have to speak in my own behalf.”


author: GULOTTA, Judge.

text:
    Helen RIEMER, wife of/and Joseph Riemer v. MARRIOTT CORPORATION et al.
    No. 10159.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 5, 1979.
    O’Dowd & O’Dowd, George O’Dowd, New Orleans, for plaintiffs-appellants.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Donald 0. Collins, New Orleans, for defendants-appellees Marriott Corporation and Liberty Mutual Insurance Co.
    Hammett, Leake, Hammett, Hulse & Nelson, Craig R. Nelson, New Orleans, for defendant-appellee Houghton Elevator Co.
    Before REDMANN, GULOTTA and STOULIG, JJ.
   GULOTTA, Judge.

Plaintiffs appeal from the dismissal of their damage suit for injuries sustained by Mrs. Helen Riemer when she was struck on the head by a closing, descending door of a freight elevator in the Marriott Hotel.

On the morning of April 10, 1975, Mrs. Riemer, along with several other ladies, was bringing flower table decorations to the hotel to be used in connection with a noonday luncheon to take place on the same day. According to plaintiff, as she arrived by automobile in the front driveway area of the hotel, she was directed to use the freight elevator located in the rear of the building. Her testimony was disputed by a hotel security officer who stated that because of the impatience of Mrs. Riemer and the other ladies, they insisted on using the elevator despite his instructions to them not to do so. According to this employee, the ladies had been told that they would have to wait for “a caterer’s manager” to use the elevator.

This elevator was described as having an inside mesh steel door which closed from top to bottom and two outer steel synchronized doors (one closing from the top and one closing from the bottom) which close at the middle. Approximately 10 or 12 seconds before the inner mesh door begins to close, a bell rings and continues to ring during the descent of this door. The outer doors do not commence to close until the inner door has reached the elevator floor. After the doors have opened they remain in that position for approximately 60 seconds and thereafter automatically close unless held open by an “open” button.

As Mrs. Riemer was approaching the elevator with the decorations in each hand, the closing inner mesh door struck her head causing her to “trip” resulting in her fall outside the elevator.

The trial judge, in written reasons, stated:

“REASONS FOR JUDGMENT
It is the opinion of the Court that the Plaintiffs did not meet the burden of proof imposed on them by law.
The ladies were vague and indefinite as to the details pertaining to the incident.
However the Court does have a clue as to how the accident occurred. Mrs. Mary Petrocco testified as follows:
Question: How far was Mrs. Riemer from the elevator when the gate first started closing?
Answer: About ten feet. Six to ten feet maybe. No. No. When she started running probably about three feet. Three to five feet.
Question: When the gates were closing?
Answer: Witness nodded head indicating affirmative reply.
Question: And she was running at this time?
Answer: She was walking to get into the elevator.
Under the circumstances the Court is of the opinion that Mrs. Riemer was guilty of contributory negligence.”

Plaintiffs contend that the “fast closing door” of the elevator created a known, hidden danger and constituted an “unreasonable, foreseeable” hazard to persons lawfully on the premises. Relying on Mitchell v. Aetna Casualty & Surety Company, 284 So.2d 636 (La.App. 3rd Cir., 1973); Brown v. Southern Ventures Corporation, 331 So.2d 207 (La.App. 3rd Cir., 1976), writ denied, 334 So.2d 211 (La.1976); and Bolin v. National Tea Co., 359 So.2d 690 (La.App. 1st Cir., 1978), writ denied, 362 So.2d 577 (La.1978), plaintiffs contend that the Marriott Hotel violated its duty to warn invitees of the hidden and concealed peril and thereby failed to exercise reasonable and ordinary care.

Although judgment is sought by plaintiffs against the defendant elevator company that installed and maintained the freight elevator, the record does not contain any evidence of faulty installation, a defective condition or failure of maintenance. The trial judge dismissed the suit against Houghton Elevator and the third party demand of Houghton against Marriott for indemnification and/or contribution. The record clearly supports the conclusion that no liability exists on the part of the elevator company.

On the question of the Marriott’s liability, because we conclude the record supports the trial court’s factual finding of contributory negligence, we find no necessity of considering the negligence of the Marriott Hotel. Although it appears that several persons, including plaintiff, were in a position to observe and describe the circumstances surrounding the incident, incredibly, only the testimony of Mrs. Mary Petrocco (quoted in part hereinabove by the trial judge) shed any light on what occurred. This testimony is persuasive, as indicated by the trial judge, that Mrs. Riemer carelessly tried to “beat” the closing elevator doors.

Contributory negligence has been defined as that conduct on the part of a plaintiff, which falls below the reasonable standard required for one’s protection. Plaintiff’s reliance on McNulty v. D. & G. Maintenance Corp., 352 So.2d 337 (La.App. 4th Cir., 1977) to exonerate Mrs. Riemer from contributory negligence is without merit. The McNulty case is clearly factually distinguishable from the instant case. In the slip and fall McNulty case, we stated that plaintiff was not aware of the slippery floor and no warning signs had been posted to make the plaintiff aware. However, in the instant case, Mrs. Riemer was aware of the impending danger from the closing elevator door, nevertheless, tried to “beat” the closing door. Under the circumstances, we conclude that Mrs. Riemer’s actions were below the standard of a reasonable person and was the cause in fact of her injury. Accordingly, we find no error in the trial court’s determination that plaintiff was contributorily negligent.

The judgment is affirmed.

AFFIRMED.

      . The suit was directed against Marriott Corporation and its insurer, as well as Houghton Elevator Company which had installed, maintained and inspected the elevator.

      . Printed on the outer steel doors (which could be seen only when the doors were closed) were the words “For Freight Only” and “Danger, Fast Closing Door.”

      . Straley v. Calongne Drayage and Storage, Inc., 346 So.2d 171 (La.1977); Smolinski v. Taulli, 276 So.2d 286 (La. 1973); Hall v. Hartford Accident and Indemnity Co., 278 So.2d 795 (La.App. 4th Cir., 1973), writ denied, 281 So.2d 753 (La.1973).


author: STOULIG, Judge. REDMANN, Judge,

text:
    Succession of Edward G. KOCH.
    No. 10160.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 5, 1979.
    Rehearing Denied July 12, 1979.
    Fernand F. Willoz, III, New Orleans, for appellee.
    Maurice Indest and Edward G. Koch, Jr., New Orleans, for appellant.
    Before REDMANN, GULOTTA and STOULIG, JJ.
   STOULIG, Judge.

Appellant, Edward G. Koch, Jr., has appealed a judgment setting aside his appointment as sole administrator of the Succession of Edward G. Koch and naming him and his brother Martin R. Koch co-administrators of the estate. Appellee, Martin Koch, expresses his displeasure at this arrangement in brief, but does not seek modification of the joint appointment.

Edward G. Koch died May 22, 1978 and on June 1, 1978 his son Martin filed a petition in Civil District Court for the Parish of Orleans under C.C.P. art. 3091, requesting notification of any applications for appointment as administrator of this estate. C.C.P. art. 3093 requires the applicant for appointment as administrator to notify the party designated in the petition for notice of the date and hour assigned by the court for a hearing on the application. Failure to give such notice subjects the administrator to the penalty of removal from office (C.C.P. art. 3182).

The following day, June 2, 1978, Martin R. Koch petitioned to be appointed administrator and the court signed an order directing letters of administration issue to him on complying with the requisites of the law.

On June 13, 1978 (the day following the 10-day qualifying period), appellant, Edward G. Koch, Jr., filed a motion to revoke the appointment of Martin R. Koch for his failure to qualify as administrator of the succession within 10 days after his appointment and to appoint mover as administrator of the succession. On the same date the court summarily issued an ex parte order removing Martin Koch as administrator and appointed Edward G. Koch, Jr., in his stead. The court is empowered under C.C.P. art. 3181 to revoke the appointment of an administrator who fails to qualify within 10 days of his appointment; however, the procedure for removal of an administrator is prescribed in C.C.P. art. 3182, which mandates a contradictory proceeding. It therefore follows that the ex parte removal of Martin Koch was improper.

On June 16, 1971 (some three days later), Martin Koch filed a motion to set aside the appointment of Edward Koch, Jr., and to be reappointed. The basis of this motion was two-fold: first, the ex parte removal of Martin was improper; and second, Edward, Jr., failed to comply with the request for notice to Martin of his application as administrator. When this rule was heard, the trial judge appointed both brothers as co-administrators.

We affirm this result. The sworn list of this succession’s assets and liabilities reflects a gross estate of $471,187.84 and total liabilities of $99,779.76, or an approximate net estate before taxes of $371,408.08.

Appellant and appellee both have a substantial interest to protect and obviously are unwilling to turn over the administration to the other. (Parenthetically we note that the liquidity of this estate and the form of its assets suggests that an administration might be superfluous.)

If any appointment is procedurally questionable, it is that of Edward, Jr., who had his brother removed on an ex parte order and who further failed to comply with the notice request filed by Martin.

Martin’s reluctant acquiescence in the co-appointment obviates our need to review the judgment to decide whether Edward, Jr., should have been removed. As to Martin, his failure to appeal or answer the appeal makes the judgment final.

For the reasons assigned, the judgment appealed from is affirmed. All costs incurred in presenting this appeal are to be paid by Edward G. Koch, Jr., individually, not by the estate.

AFFIRMED.

REDMANN, J., dissents with written reasons.

REDMANN, Judge,

dissenting.

The text of La.C.C.P. 3181 is express:

If a person appointed or confirmed as succession representative fails to qualify for the office within ten days after his appointment or confirmation, on its own motion or on motion of any interested person, the court may revoke the appointment or confirmation, and appoint another qualified person to the office forthwith. (Emphasis added.)

That text gives the court discretionary power to revoke and appoint “forthwith”, and “on motion”.

The immediately adjacent art. 3182, on removal of an already-qualified succession representative, in contrast to art. 3181’s “on motion . . the court may revoke ”, provides an understandably different procedure: under art. 3182 “[t]he court on . motion may . . order the succession representative ... to show cause why he should not be removed . . . ” (emphasis added). Art. 3181 authorizes the court to revoke (and appoint) while art. 3182 only authorizes it to order to show cause.

Therefore the trial court acted within its express authority under C.C.P. 3181 in revoking Martin’s unaccepted appointment ex parte.

West LSA-C.C.P. vol. 11, Form 889a, n. 1, for C.C.P. 3181 proceedings, agrees:

It is not necessary that this proceeding be by contradictory motion.
******
Normally, an application to be appointed administrator should be presented in a petition. Art. 3091, LSA-C.C.P. However, Art. 3181, id., permits the appointment of another qualified person as succession representative on motion under the circumstances set forth in that article.

C.C.P. 3181 is equally express that, in the case described, the court “on motion . may . . . appoint another . forthwith.” It cannot reasonably be doubted that the appointment of Edward was therefore within the court’s express authority.

Martin’s only argument of any weight is that, by the ruling naming both co-administrators, Edward was removed under C.C.P. 3182 because he “failed to give notice of his application for appointment when required under Article 3093.” That argument must be rejected because C.C.P. 3093’s general rule is stated in terms inconsistent with C.C.P. 3181’s special rule for its cases: specifically, C.C.P. 3093 requires that an applicant send a copy of the “application for appointment” to anyone who petitioned for notice and “notify him of the date and hour assigned by the court for a hearing thereon.” C.C.P. 3181 does not envision the “application for appointment” spoken of by C.C.P. 3091-3096 (a petition, see West, Form 889a, n. 1, above) but a simple ex parte motion, and it does not provide for a hearing but for appointment “forthwith.” C.C.P. 3093 thus did not oblige Edward to give notice to Martin (even less so, when Martin himself had already been appointed but neither qualified nor asked for an extension of time to qualify).

The partial removal of Edward, that is, the naming of Martin as co-administrator after Edward was under express authority appointed and qualified as administrator, was therefore not authorized by C.C.P. 3182 and should be reversed.


author: BOUTALL, Judge.

text:
    Gail B. SCHEXNAYDER v. Rudolph E. KINCKE.
    No. 10168.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 5, 1979.

      Pamela L. Jackson, New Orleans, for Rudolph E. Kincke, defendant-appellant.
    Morris G. Becnel, and Manina D. Dubro-ca, Boutte, for Gail B. Schexnayder, plaintiff-appellee.
    Before SAMUEL, BOUTALL and BEER, JJ.
   BOUTALL, Judge.

This is a case involving the custody of two children.

On May 5, 1976, Gail Schexnayder, appel-lee, was granted a judgment making execu-tory the divorce decree and child custody award obtained by her in Las Vegas, Nevada in 1972. Appellee maintained custody of the two minor children, Rudolph Erick and Keith Alexander, aged 9 and 7 years, until May 27, 1977 at which time she voluntarily relinquished custody to the father, Rudolph Kincke, appellant, pursuant to an affidavit citing reasons for her decision. In May of 1978, appellee contacted appellant requesting the return of the children. Appellant then filed a rule to show cause why he should not be granted permanent custody of the children. After a hearing, judgment was rendered in favor of the mother and this appeal was brought.

Appellant contends that the trial court erred in applying the “maternal preference” and “double burden” rules to this case and also in finding that it was in the best interest of the children that the mother retain legal custody. In the reasons for judgment, the trial judge recited the following findings:

“1. The affidavit was not a voluntarily relinquishment of the court awarded custody to the mother.
“2. The personal, domestic and economic problems of the mother during May, 1977, had been resolved and
“3. The special health and educational needs of the two children could be well met by the mother with the facilities and resources within this parish and at her use.
“This court must find that the mother still has legal custody of the two minor children and that a change of custody does not appear to be in the best interest of the children.”

We find that the trial court did not apply either the maternal preference or double burden rule to this case. The judge merely found that the best interest of the children would be served by the retention of legal custody in the mother. The three findings are simply determinations on the evidence presented and, as such, are support for the decision reached. Our inquiry, then, must focus on the correctness of the court’s finding that it is in the best interest of the children to retain legal custody in the mother.

The paramount consideration in determining to whom custody should be granted is always the welfare of the children. Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971); State ex rel. Killman v. Gurley, 354 So.2d 755 (La.App. 4th Cir. 1958). Since the judicial system imposes upon trial judges the duty of deciding child custody cases, the judges must have authority and discretion commensurate with that responsibility. See Stevens v. Stevens, 340 So.2d 584 (La.App. 1st Cir. 1976). The decision must not be disturbed absent a clear abuse of discretion. Gurley, supra, Landry v. Landry, 339 So.2d 360 (La.App. 1st Cir. 1976).

Appellant’s main contention deals with the education of the oldest boy, Erick. The evidence is to the effect that Erick suffers from a learning disability first discovered in 1974. Attempting to deal with this problem, Erick’s mother paid for extra tutoring by his first grade teacher and later placed him in a learning resource room for learning disability children. She and her husband were also very active in attempting to obtain a more extensive special education program in St. Charles Parish.

Appellant introduced evidence tending to show that Erick’s reading and mathematics levels were far below his age level at the beginning of his stay with his father and that it increased dramatically as a result of the special education he received during that year. The trial judge was convinced and the evidence shows however, that St. Charles Parish now has the facilities to meet Erick’s special education needs. Further, we are convinced that the efforts of the mother to properly educate Erick before the relinquishment of custody showed a substantial concern for the wellbeing of her child, regardless of the effectiveness of the facilities available to her at the time.

We also find that the relinquishment of custody itself revealed appellee’s concern for her children’s welfare. The testimony shows that appellee faced major surgery and a potentially serious disease. Certain of substantial medical bills and a major loss of time at work, appellee was not unjustified in deciding that the children’s father could provide better care during this period. The affidavit of appellee stated in part:

“Due to the above and foregoing circumstances she hereby consents to allowing the aforesaid minor children to live in the home of her former husband, Rudolph Edward Kincke, for an indefinite period of time, allowing the said Rudolph Edward Kincke, to exercise the proper care, custody and control of the minor children, including enrollment in school, it being provided and understood that appearer reserves her future right to resume her right to custody of the said minor children, nothing herein being intended that appearer relinquishes her right to the legal custody that she now possesses to custody of the minor children.”

It is evident from the affidavit that ap-pellee took this action with the children’s best interest in mind. Consistent with this is appellee’s explanation as to the length of time the children lived with their father. She admitted that she had recovered from the illness long before she requested the return of the children but reasoned that it would be better for the children to remain with the father until the end of the school term rather than undergo a change of schools in mid-school year. This reasoning is sound, especially in view of Erick’s learning difficulties. Appellee requested the return of the children promptly at the end of the school year.

Appellant’s final argument centers upon the alleged domestic problems of appellee and her second husband. Testimony was introduced indicating that marital difficulties were present at one time and that they were actually living separate and apart for a six week period in 1977. There is, however, no showing that any problems whatsoever existed at the time of trial. The judge was justified in finding that the domestic problems of the mother were resolved by the time of trial and that she was able to properly care for the children.

In view of the evidence, we cannot conclude that the factual determinations made by the trial judge were clearly wrong. See Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). The record simply does not disclose an abuse of discretion in the trial judge’s holding that it was in the best interest of the children to continue the previous award of custody to the mother.

For all of the above reasons, the judgment below is affirmed.

AFFIRMED.

      . For explanation of the maternal preference rule see Stevens v. Stevens, 340 So.2d 584 (La.App. 1st Cir. 1976); regarding the double burden rule, see Decker v. Landry, 227 La. 603, 80 So.2d 91 (1955). These rules are merely aids in determining what is in fact in the best interest of the children. See State ex rel. Killman v. Gurley, 354 So.2d 755 (La.App. 4th Cir. 1978); Stevens, supra.


author: SCHOTT, Judge.

text:
    Charles E. McCREARY v. COMMERCIAL UNION INSURANCE COMPANY et al.
    No. 10170.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 5, 1979.

      Craig R. Nelson, Hammett, Leake, Hammett, Hulse & Nelson, New Orleans, for defendants-appellants.
    Robert L. Manard, III, Manard, Schoen-berger & Ryan, New Orleans, for plaintiff-appellee.
    Before LEMMON, SCHOTT and GARRISON, JJ.
   SCHOTT, Judge.

In his original petition plaintiff brought suit against Commercial Union Assurance Company, Woodward Wight & Company, Ltd., and T. H. Hughes, Jr. (sometimes collectively referred to as appellants), seeking damages for injuries he allegedly sustained when his automobile was struck by Hughes’ automobile on November 11, 1975. He subsequently filed a supplemental and amending petition alleging that he was injured on February 16,1976, when his automobile was struck by an automobile operated by one Edgar M. Lewis. Alleging that Lewis was uninsured, he made his own uninsured motorist’s insurer, Hartford Accident & Indemnity Company (Hartford) a defendant along with Lewis.

The original and the supplemental petitions contained identical allegations that plaintiff “suffered severe and disabling personal injuries to his mind and body which required surgery and resultant permanent disability.”

Before this case went to trial plaintiff settled his claim against Hartford for the injuries he sustained in the second accident for $20,000, and he dismissed his suit against Hartford. In the meantime, Hartford filed a third party demand against Lewis for whatever amount it might be cast in plaintiff’s favor. Appellant Hughes filed a third-party demand against Lewis and Hartford, seeking indemnity or contribution against them for whatever damages he might be cast unto plaintiff, and Hartford responded with various exceptions.

Following these events a number of procedural developments took place. Appellants filed a rule against plaintiff to set aside his settlement with Hartford or, alternatively, for an order authorizing full disclosure to the jury of the terms and conditions of the settlement. Hartford filed a motion to sever the third party demand it had filed against Lewis from the main demand which was scheduled for trial before a jury. On November 22, 1977, the court ordered:

“That the rule to set aside the settlement between plaintiff and Hartford Accident & Indemnity Co., filed by Commercial Union, et ais and the rule to advise the jury of the settlement also filed by Commercial Union, et ais, be and the same are both denied, and defendant and its Counsel and witnesses are instructed by the Court not to use any testimony, remarks, questions, or arguments which might inform the jury of such information.”

He also ordered that the trial of Hartford’s third party demand against Lewis be severed from the trial of the main demand.

Appellants then applied for writs to this court, whereupon we vacated the ruling of the trial court with respect to the admissibility of the fact of the settlement. The following was our rationale for this action:

“The fact of a second accident (possibly causing damages similar to those complained of in a first accident) and any medical evidence relating thereto is admissible because relative to quantum of damages caused by the first. That a claim arising out of the second accident has been settled is also admissible for the purpose of showing that there is no longer a pending claim against the second tortfeasor (or, as here, a solvent uninsured motorist insurer answerable for him).
Existence of two claims against solvent defendants tend to keep the claimant unbiased in his testimony of complaints relative to either accident. Settlement of one claim so as to exclude one of the solvent defendants might tend to make the claimant, even subconsciously, shade his testimony to attribute complaints to the accident in which the claim is still pending. The fact of the settlement therefore bears on credibility and is admissible.
Unless the remaining solvent defendant is liable to the other for, or is entitled to credit for, some portion of the settlement, the amount of the settlement is irrelevant. The amount represents the judgment of persons who are not the triers of fact in the case being tried.”

On January 6, 1978, the third party demand of Hughes against Hartford was dismissed and from this judgment no appeal was taken. The case proceeded to trial on the main demand before a jury and plaintiff was awarded a verdict in the amount of $75,000, whereupon appellants have taken this appeal. Appellants have specified the following errors for our consideration: (1) the amount of the award was excessive, (2) the amount of the award should be reduced either to zero or to 50% as a result of the settlement plaintiff made with Hartford, (3) the finding that Hughes was guilty of negligence which was the sole and proximate cause of the accident was manifestly erroneous, and (4) plaintiff’s injuries were not caused exclusively by'the November, 1975, accident. For a preliminary understanding of these specifications it behooves us to review the uncontroverted facts brought out at the trial.

On the date of the accident in November, 1975, plaintiff was in the process of leaving the parking lot adjacent to the building where he resided when his automobile was struck by Hughes’ automobile. Hughes was backing out of his parking spot in the lot prior to colliding with plaintiff. Immediately after the collision while plaintiff was getting out of his car he struck his head above the door. Two days later plaintiff sought medical attention from Dr. Arthur J. Axelrod to whom he was referred by Commercial Union’s claims adjuster. He was complaining of pain in his neck. On February 16, 1976, plaintiff’s automobile was struck by an automobile operated by Lewis and three days later plaintiff sought medical attention from Dr. Claude Craig-head. He was complaining primarily about pain in his neck. Except for the one visit to Dr. Axelrod on November 13,1975, plaintiff had sought no other medical treatment until this visit to Dr. Craighead, and between February 19 and March 26 Dr. Craighead continued to treat plaintiff for his neck complaints when he referred plaintiff to Dr. Kenneth Vogel, a neurosurgeon. Dr. Vogel had a myelogram and a discogram run on plaintiff which confirmed the disc, and he then performed an anterior cervical fusion at this site.

From this summary it becomes clear that the most serious issue presented in the case is the question of causation by the first accident for the extensive medical problems which plaintiff eventually encountered. The jury undoubtedly concluded that the ruptured disc was caused by this accident or they would have returned a verdict for considerably less. From our review of the record we have concluded that this ultimate determination of causation was within the fact finding province of the jury and the instructions given to the jury were such that the issue was properly presented to the jury for its determination. A summary of the testimony is now presented to support this conclusion.

The testimony of plaintiff: When his car was struck by Hughes he was thrown forward and struck his head on the sun visor. He opened the door to get out and “whacked” his head again. When his automobile approached the Hughes car he saw no indication that it was about to move and when it began to back out there was nothing he could do to avoid being struck. He did slam on his brakes, which caused him to flip forward. The left rear corner of Hughes’ car struck his car on the right side just about at the center post. On the following morning he felt pain in his neck which he described “just like a knife turn-' ing around in my neck.” He also had headaches. His description of the examination made of him by Dr. Axelrod was quite different than the doctor’s description. He described a superficial examination while the doctor described a meticulous neurological examination on plaintiff. Dr. Axelrod prescribed medication, hot showers and compresses for his neck, which he took and which provided him with temporary relief. His pain became progressively worse with the passage of time, and he started feeling pain running down to his elbow with numbness developing in his fingers two or three weeks after the accident. He did not go back to Dr. Axelrod because he had no confidence in him, but before the February accident the pain had increased to the point where he had to see another doctor. Nevertheless, he simply continued to treat himself at home until he saw Dr. Craighead on February 19. The second accident on February 16 occurred while he was stopped in traffic and the other automobile backed into his automobile. He saw the accident coming and was able to brace himself in contrast to the previous accident where he was caught by surprise, and when the police investigated the accident he reported that he was not hurt. On cross examination, plaintiff testified that he filed the suit against Hartford based on the second accident, claiming $300,000 for severe and disabling personal injuries on the advice of his attorney because of possible aggravation of the injuries he sustained in the November accident. He admitted that the suit against Hartford was settled out of court and that he received some compensation, but he insisted that he did not feel that he was hurt in that February accident and he suffered no increase in his existing pain and discomfort. He admitted that following the first accident he had worked through November, December and January, not missing an entire day but only parts of days when he went home to take heat treatments.

Testimony of Dr. Claude Craighead: When he examined plaintiff on February 19, 1976, he took a history from plaintiff in which plaintiff told him that- he had begun to experience pain in his neck on the day after the November accident and he had been treating himself for his pain over the course of the previous two or three months. There was a radiation of his neck pain into the skull and in both shoulders. Given a hypothetical that plaintiffs suffering increased, he missed work periodically and he took medication and self administered heat treatments between the first and second accidents but that there was no increase in pain after the February accident, the doctor admitted that he could not categorically say that the November accident was the cause but stated that “there is a lot of evidence to support the November accident.”

Testimony of Dr. Kenneth Vogel: He described an extended course of conservative treatment he rendered to plaintiff from May until September, 1976, when he admitted plaintiff to the hospital. He expressed the opinion that the first accident of November, 1975, precipitated plaintiff’s problem on the assumption that plaintiff had no increase in pain after the second accident.

Testimony of Dr. Arthur J. Axelrod: He found no neurological deficit in plaintiff on examining him on November 13, no spasm and no indication of a disc injury. His impression was that plaintiff had a strain to the neck muscles and he advised plaintiff to return if he had any further problems, but he never saw plaintiff again. He testified quite categorically that plaintiff did not have any disc problem when he saw him in November and that the cause had to be the second accident.

Ultimately the jury’s decision was based on their belief of plaintiff’s testimony. They accepted his statement that he had been suffering with his neck prior to the second accident and that he felt no increase in pain after the second accident. Since Drs. Craighead and Vogel based their opinion on the statements made to them by plaintiff that he suffered no increase in pain as a result of the second accident, their ultimate opinion also rested on the degree of credibility to be assigned to plaintiff. We are unable to substitute our judgment for the jury’s in this credibility determination and accept their finding that plaintiff’s ultimate surgery and disability were substantially the result of the first accident.

We emphasize that this case was tried under circumstances where appellants were given every opportunity to develop the second accident as the cause of plaintiff’s injury. In compliance with the mandamus of this court the jury was given the benefit of all of the facts about the second accident as well as the settlement of plaintiff’s claim against Hartford, except for the amount of the settlement. When plaintiff was cross examined by appellant’s attorney, he admitted that he had filed the second suit against Hartford claiming $300,000 for his injuries, that his claim was settled out of court and that he received compensation. In the presence of the jury he identified the release and settlement of his claim against Hartford and identified his signature on that release. When it was offered in evidence the trial court stated to the jury:

“The Court will admit the document D-4 into evidence, but it will not go to the jury. The jury is by the Court now instructed that there was executed a valid settlement in compromise of that second lawsuit. Beyond that you need know nothing further. This will be kept separate from the rest .of your exhibits, so that if the jury takes with them any exhibits to deliberate, this will be excluded from those taken with them.”

Similar treatment was given to plaintiff’s uninsured motorist policy when plaintiff admitted that he did have that insurance to cover his claim against Lewis. The policy was received in evidence by the court, although it was withheld from the jury’s examination.

In his instructions to the jury at the conclusion of the trial, the court stated:

“. . . [Plaintiff] has the burden of proving to you that the defendant was negligent, and he has the burden of proving to you that whatever injuries he sustained was the proximate result of this particular accident of November 11, 1975.”

Later in those instructions when explaining to the jury a stipulation made between counsel that the special medical expenses amounted to $4,708, the trial judge stated:

“. . . That has been stipulated, but what has not been stipulated is, and what the defense will not stipulate is that all of these expenses necessarily resulted from the one accident which you must concern yourself in this case, and that’s the accident of November 11, 1975. You have to determine from the evidence in the case how much of this $4,708 stipulated to is associated with, arose out of as a necessary consequence, the accident of November 11, 1975.”

Appellants’ concern is that the jury’s ignorance over the amount of the settlement with Hartford made them believe that plaintiff was given little compensation for the second accident and was therefore entitled to a substantial amount for the first. But it is just as reasonable to speculate that the jury felt that Hartford owed plaintiff nothing and made a bad settlement no matter what it paid since that second accident caused no aggravation of plaintiff’s injuries whatsoever.

We must conclude that the jury applied the court’s instructions to the facts and concluded that plaintiff was entitled to compensation for all of his injuries as a result of the first accident. Under these circumstances we fail to see how appellants were prejudiced because the jury did not know the amount plaintiff received in settlement from Hartford. It was sufficient for the jury to know that the second accident occurred and plaintiff settled his case arising therefrom. Appellants had wide latitude to show that it was the second accident which caused plaintiff’s injuries and the jury was completely instructed on the point that they were to award compensation to plaintiff for injuries sustained in the first accident only.

In concluding that appellants were not entitled to disclose the amount of Hartford’s settlement to the jury, we have considered Dupree v. Pechinay, 369 So.2d 1075 (La.App. 1st Cir. 1979), on which appellants rely. But that case is not authority for appellants’ position. Only the footnote on the last page of the opinion states that the jury was aware that plaintiff had received $100,000 in settlement with other defendants, but it neither presents the problem as an issue or hints that there was any objection to the information going to the jury in the first instance.

Turning to appellants’ other specifications of error, the foregoing summary of the evidence sufficiently supports the jury’s conclusion that the negligence of Hughes was the cause of the accident and that plaintiff was not contributorily negligent. In addition to the testimony of plaintiff to the effect that nothing indicated the presence of Hughes in the car before he was right behind him, Hughes admitted that he never saw plaintiff’s automobile at any time prior to the impact. He stated that he looked in his mirror but when he was backing out he looked neither right nor left.

Next, we consider appellants’ contention that they are entitled to a reversal or at least a reduction of the amount of the award by 50% on the theory that they were solidarily liable to plaintiff along with Hartford. In support of this theory they rely on C.C.Art. 2103 and Harvey v. Travelers Insurance Company, 163 So.2d 915 (La. App. 3rd Cir. 1964). In disposing of this argument we pretermit the point that plaintiff’s claim against Hartford was based on an insurance policy so that there is a question as to how Hartford could be soli-darily liable to plaintiff with appellants. In any event, even if Hartford’s liability were legally the same as Lewis’, there is still no basis for considering appellants liable in solido with Hartford.

In order for solidary liability to exist Lewis and Hughes would have to be considered joint tort feasors under C.C.Art. 2324, which provides as follows:

“He who causes another person to do an unlawful act, or assists or encourages in the commission of it, is answerable, in solido, with that person, for the damage caused by such act.”

Obviously, this has no application to the case. These were independent automobile accidents occurring three months apart. Furthermore, any damages caused by the second accident were not the natural and foreseeable consequence of the first, but rather were the result of an unrelated intervening occurrence. See the discussion in Berger v. Fireman’s Fund Insurance Company, 305 So.2d 724 (La.App. 4th Cir. 1974) with respect to the nature of the liability of an original tort feasor and allegedly negligent treating physician to the plaintiff.

Finally, we come to the question of the amount of the award and appellants’ argument that it was excessive. We have already outlined in general the course of treatment to which plaintiff was subjected from the time of his accident in November, 1975, until he was admitted to the hospital in September, 1976. At the risk of unduly lengthening this opinion, we note that plaintiff’s problems increased gradually over a long period of time and was subjected to and cooperated with an extended course of conservative treatment consisting of medication, physiotherapy and heat treatments under the care of Drs. Craig-head and Vogel before he was finally hospitalized. Dr. Vogel expressed the opinion that he would have relief of approximately 80 to 90% of his discomfort as a result of the surgery but he would always have some pain and discomfort. Furthermore, he assigned a 15% permanent anatomical disability and felt that plaintiff should avoid lifting, pushing or pulling weights in excess of 50 pounds and hyperextending or flexing his neck. Plaintiff testified that his activities had been curtailed considerably, having to forego golf and bowling. At trial he testified that he still had a nagging ache in his neck and this interfered with his ability to concentrate and therefore to perform his work properly.

Plaintiff had been a comptroller for his company and had been earning $24,000 per year prior to the accident. He was out for six months as a result of his injuries and had a direct loss of wages in the amount of $12,000. Upon his return, his position as comptroller had been taken by someone else and he was relegated to the position of a consultant at a salary of $300 per month less than he was earning before the accident. As always-, it is difficult for us to dissect the verdict of the jury in order to learn what amount they assigned for what portion of plaintiff’s claim, but it seems clear that included in the $75,000 are the special medical expenses of $4,700, as well as the clear loss of $12,000 for the six months plaintiff was off. Plaintiff testified that he kept his job as a consultant from January until August, 1977, and his services were then terminated because the job was finished. He stated that he had worked with this company from March, 1969, to April of 1971, when he resigned to go back to Colorado because his wife was stricken with cancer, and after his wife died the company’s president asked him to come back to work for them. Three weeks after his return to the company in 1975 he was asked to assume the position of comptroller. It seems to be a fair inference from this testimony that had-it not been for plaintiff’s accident he would have stayed on with his company for several years, especially considering that he was only 55 years of age at the time of the accident. Consequently, the jury was justified in including some additional amount to compensate plaintiff for lost wages and loss of earning capacity beyond the $12,000 which was clearly established.

In Folse v. Fakouri, 371 So.2d 1120 (La.1979, decided on May 21, 1979, docket No. 63232) the court held that a wide range of discretion is available to the trier of fact in making an award for loss of wages and earning capacity. Since the jury was instructed that plaintiff was entitled to such damages we must assume that a figure of considerably less than $50,000 was awarded for plaintiff’s pain and suffering. Considering Coco v. Winston Industries, 341 So.2d 332 (La.1978) we are not persuaded to reduce the award.

After this case was submitted appellants filed a motion to remand this case to the trial court on the basis of affidavits taken from a member of the jury on May 11,1979, which indicate that the jurors agreed to propose amounts, add them up and divide by twelve, and be bound by the average figure which resulted in the $75,000 verdict awarded. In the motion appellants rely on DeBose v. Trapani, 295 So.2d 72 (La.App. 4th Cir. 1974) writs refused, 299 So.2d 359 (La.App.), in which we considered the validity of a quotient verdict and concluded that the quotient verdict in itself was not necessarily stricken with nullity but the vice is in the prior agreement by the jurors to be bound by the result of the addition and division. In brief appellant’s counsel states that he has now contacted other jurors whose version of their behavior is different. Clearly, the question would have to be resolved on a trial wherein both parties would have the opportunity to offer evidence and cross examine adverse juror-witnesses.

However, we have resolved to deny this motion because of the procedural posture of this case. In the motion appellants move to take testimony in order to determine whether or not a new trial should be granted due to jury misconduct. This case is beyond the authority of the trial court to grant a new trial. Once the procedural steps authorized by C.C.P.Arts. 1971 et seq. have been exhausted and appeal is taken the trial court no longer has jurisdiction to take any action with respect to that judgment except to entertain an action of nullity pursuant to C.C.P.Arts. 2001 et seq. The juror’s affidavits may provide appellants with a cause of action to annul the judgment because of ill practice under Art. 2004 but they are not entitled to have the present case remanded for further testimony.

Accordingly, the judgment appealed from is affirmed and the motion to remand is denied.

AFFIRMED, MOTION DENIED.


author: GARRISON, Judge.

text:
    Larry Ward BRASHER v. Lucinda Walker BRASHER.
    No. 10176.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 5, 1979.
    Rehearing Denied July 12, 1979.
    Jacqueline Mae Goldberg, New Orleans, for plaintiff-appellant.
    Dunn & Rasch, Ltd., J. Morris Dunn, III, Metairie, for defendant-appellee.
    Before LEMMON, SCHOTT and GARRISON, JJ.
   GARRISON, Judge.

In this suit to annul a judgment of divorce, the district court ruled in the wife’s favor, setting aside the divorce judgment previously obtained by the husband. We affirm.

In July 1976, Larry Brasher filed a petition for divorce in Orleans Parish. In the petition he alleged that his wife’s whereabouts were unknown. A curator was appointed, who followed the usual investigative procedures and subsequently reported that he was unable to locate Mrs. Brasher. Accordingly, a judgment of divorce in favor of Mr. Brasher was granted.

When Mrs. Brasher found out about the divorce she filed a petition to annul the judgment. She stated that there were separation and divorce proceedings already pending in Jefferson Parish at the time Mr. Brasher filed suit in Orleans, and alleged that Mr. Brasher in fact was aware of how to contact her. After a trial on the merits, the district judge concluded that Mr. Brasher had deliberately withheld information that would have assisted the curator in locating Mrs. Brasher and therefore he annulled the divorce judgment.

Our review of the record convinces us that the trial judge’s conclusions are supported by the following facts:

(1) The testimony showed that Mr. Brasher’s former attorney had filed suits on Mr. Brasher’s behalf for both separation and divorce in Jefferson Parish. Mr. Brasher claimed not to know that suit had been filed, stating that he had dismissed that attorney for failure to communicate with him and had hired new counsel. However, Brasher had been to court several times for alimony and child support hearings. He had seen and spoken to his wife’s attorney in court, so he knew she was represented by counsel. He claimed not to know her attorney’s full name although he admitted he knew that “Dunn” was either the attorney’s first name or last name. This information should have been given to the curator.

(2) It is clear that Brasher did not know his wife’s address at the time his new attorney filed suit. However, he had been sending his child support payments to his mother-in-law’s former address on Gillen Street in Metairie. The testimony showed that Mrs. Brasher’s mother had moved to Baton Rouge, but that Mrs. Brasher’s brother and sister-in-law had moved into the Gillen Street house. Mrs. Brasher testified that she continued to have her mail sent to the Gillen Street address. Mr. Brasher had picked up his child from there when exercising his visitation rights. He must have known that his wife could be contacted through that address, although he did not know where she actually lived. That address should have been given to the curator. Instead, the curator was only advised that Mrs. Brasher’s last known whereabouts were in “Metairie, Louisiana.”

(8) Mr. Brasher had called Mrs. Brasher at her place of employment some time previously. Even if he was not sure she still worked there, the number should have been given to the curator.

(4) He knew that his wife commonly went by the nickname “Cindy” Brasher. There was no listing in the telephone director for “Lucinda Brasher,” but there was a listing for a “Cindy Brasher.” He should have advised the curator of his wife’s nickname. In addition, there was other testimony to support the trial judge’s conclusion.

The basic purpose of a curator ad hoc is to represent the interests of and to attempt to locate the absent defendant. However, the curator is dependent to a great extent on the information given him by the plaintiff. A plaintiff has a duty not to withhold information that would assist the curator ad hoc in locating the absent defendant. When a plaintiff deliberately withholds such information in order to obtain an uncontested judgment, this constitutes an ill practice within the contemplation of C.C.P. art. 2004, which is a ground for annulling the judgment.

Where there is conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed in the absence of manifest error. Canter v. Koehring Co., 283 So.2d 716 (La.1973). We find no manifest error in the district court’s conclusions in this case. Accordingly, the judgment is affirmed.

AFFIRMED.


text:
    Succession of Jesse TAYLOR.
    No. 10186.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 5, 1979.
    Rehearing Denied July 12, 1979.

      Edmond R. Eberle, New Orleans, for appellant.
    John J. Dolan, New Orleans, for appel-lees.
    Frank W. Lagarde, Jr., New Orleans, for absentee-appellees.
    Before SAMUEL, BOUTALL and BEER, JJ.
   BEER, Judge.

Decedent, Jesse Taylor, was born in Mississippi in 1949. In 1953, his mother, Lulia Scott (“Lula”) Taylor, died, at which time her sister, appellant here, Fannie Scott Atkins, brought Jesse home with her. Thereafter, he was raised with the other children of Fannie Scott Atkins.

He joined the U. S. Army when he was 21 years of age and, while on active military service, suffered injuries which led to his intestate death on January 1, 1975.

Escarb Taylor and Jacob Taylor have alleged that they are the natural brothers of decedent and, accordingly, his closest living relatives. As such, they have successfully opposed a tableau of distribution which would recognize appellant Atkins’ claim as a creditor of the estate for services which she allegedly rendered to decedent from the time that he was 4 years of age until the time that he was approximately 21 years of age. She appeals.

In essence, Jesse Taylor’s entire estate consists of the proceeds of certain government life insurance policies and interest accrued thereupon totalling approximately $35,000.

Appellant Atkins here seeks reversal of the trial court’s judgment of May 26, 1978, exempting the above noted proceeds from her claim as decedent’s creditor based upon her allegations of the care and attention he received during the period of approximately 17 years when he was raised in her home (i. e., from the time that he was 4 until the time that he was approximately 21 and joined the U. S. Army).

The proceeds of two insurance policies with which we are here concerned have been paid, properly we are convinced, to the estate of Jesse Taylor.

Pretermitting any conclusion as to the overall validity of appellant’s claim as a creditor of decedent’s estate for the services that she rendered to him from the time that he was 4 until the time that he was 21, we conclude that the able trial judge has correctly relied upon the applicable provisions of LSA-R.S. 22:647 by exempting all proceeds of the insurance policies hereinabove described from appellant Atkins’ claim as a creditor of the estate.

The judgment is affirmed.

AFFIRMED.


text:
    ORLEANS MANUFACTURING COMPANY, INC. v. ADMINISTRATOR, LOUISIANA DEPARTMENT OF EMPLOYMENT SECURITY, Hattie M. Antoine.
    No. 10193.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 5, 1979.

      Parlongue & Riegel, Philip R. Riegel, Jr., New Orleans, for plaintiff-appellant.
    James A. McGraw, Willie D. Maynor, Baton Rouge, for defendant-appellee.
    Before REDMANN, GULOTTA and STOULIG, JJ.
   GULOTTA, Judge.

The plaintiff-employer appeals from a trial court judgment affirming the Board of Review’s determination that the employee, Hattie M. Antoine, was terminated from her employment under “non-disqualifying circumstances” entitling her to receive unemployment benefits. The Board of Review had reversed the earlier determination by the Administrator and Appeals Referee which found insubordination “for refusing an assigned duty, which was a reasonable request of the employer” and concluded the employee was discharged for misconduct connected with her employment.

Prior to her termination Hattie Antoine had been employed by plaintiff for a period of sixteen months. Her job involved cloth-covering wood caskets, manufactured by plaintiff. On the date of her discharge, because she was not needed in her usually assigned department, Hattie Antoine was instructed to work in another department. When the employee informed the supervisor that she was physically unable to do the job in the newly assigned department, the supervisor instructed her to “push a broom”. The employee refused to sweep and she was discharged. The employee complains of the demeaning manner in which the supervisor told her to sweep the premises.

In the opinion of the Board of Review, based on the evidence taken before the Appeals Referee, the Board stated:

“ . . .A careful review of the testimony and evidence in this case clearly shows that the claimant was discharged for refusing to do janitorial work.
The Board further finds that the claimant was initially hired to work in the cloth-covered wood department. V/e further find that when assigned to do janitorial work and she quit, her quitting was under non-disqualifying circumstances. The employer in fact, violated the claimant’s hiring agreement.”

The record does not contain any evidence relating to the hiring agreement nor the content of any union contract; nevertheless, we cannot say that the Board’s conclusion is in error.

We find no merit to plaintiff’s argument that, as a matter of law, the evidence was not sufficient to support the Board of Review’s reversal of the Appeals Referee. Our consideration of the testimony in the record leads to a conclusion that the employee’s action, under the circumstances, was not such as^to constitute “misconduct” thereby disqualifying her from receiving unemployment benefits.

This Court has defined “misconduct” in unemployment benefit cases as “an act of willful or wanton disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of standards of behavior which the employer has the right to expect of his employee, or negligence in such degree or recurrence as to manifest culpability, wrongful interest, or evil design, or show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to the employer.”

At the hearing before the Appeals Referee, Hattie Antoine was described by her supervisor as a “very good employee”, and prior to this one incident she had never refused to do any other work. The employee’s refusal to obey was not because her supervisor had asked her to sweep but, rather, because of the demeaning manner in which she was told to sweep. She took umbrage at her supervisor’s attitude in ordering her “to go push a broom”.

In Turner v. Brown, 134 So.2d 384, (La. App. 3rd Cir., 1961) an isolated incident of disobedience by an employee was found not to constitute “misconduct”. In Turner, the Court stated that:

“ . . . Such misconduct is not shown by a single dereliction or minor and casual acts of negligence or carelessness, or by inadvertencies or ordinary negligence in isolated instances . . . ”

And, in Payne v. Antoine’s Restaurant, supra, in a more aggravated single incident of disobedience than in our case, this Court also concluded that the employee’s actions did not constitute misconduct. The Payne court relied on and quoted from the language hereinabove referred to from the Turner case.

Furthermore, in Johnson v. Brown, 134 So.2d 388 (La.App. 3rd Cir., 1961), which also involved a single incident, the Third Circuit concluded that a “single, hotheaded incident cannot be considered the type of premeditated and seriously improper conduct which constitutes, within the meaning of the statute, the serious cause sufficient to deny unemployment compensation benefits to an employee.”

Considering the circumstances surrounding the isolated incident in our case, along with the employee’s sixteen month period of service as “a very good employee”, we cannot say Hattie Antoine’s actions constituted misconduct under the statute.

Accordingly, the judgment is affirmed.

AFFIRMED.

      . R.S. 23:1601 provides in pertinent part:
      “An individual shall be disqualified for benefits:
      1. . . .
      2. If the administrator finds that he has been discharged for misconduct connected with his employment such disqualification

      . Hattie Antoine testified that she was a member of a union.

      . Payne v. Antoine’s Restaurant, 217 So.2d 514 (La.App. 4th Cir., 1969).