author: BEER, Judge.

text:
    LOUISIANA POWER & LIGHT COMPANY, v. Calhoun A. SMITH et al.
    No. 7863.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1977.

      Porteous, Toledano, Hainkel & Johnson, Benjamin C. Toledano, New Orleans, for defendants-appellants.
    Monroe & Lemann, W. Malcolm Stevenson, New Orleans, for plaintiff-appellee.
    Before SAMUEL, REDMANN and BEER, JJ.
   BEER, Judge.

This twelve-year-old case began its long life when Louisiana Power & Light Company (hereafter, “LP&L”) sued Calhoun A. Smith and his insurer, State Farm Mutual Automobile Insurance Company for damages incurred on February 28, 1965, when an automobile, owned by Smith and being driven with his permission by his son, collided with a 40-foot wooden utility pole owned by LP&L. The pole was replaced by an LP&L service crew at a cost initially computed by LP&L as follows:

At the trial which took place in late 1975, liability was admitted. The computation of recoverable damages was the sole issue at the trial and in this appeal. Defendant seeks, essentially, to limit the damages award to the direct costs of repair, whereas LP&L seeks a more sophisticated method of computation. Trial on the merits resulted in judgment (with written reasons) in favor of LP&L in the amount of $418.02.- Defendant has appealed, seeking downward adjustment of the trial court judgment, contending that only the actual direct expenses incurred by LP&L should be awarded. In its answer to defendant’s appeal, LP&L claims to be aggrieved by the judgment because the “ . . . trial court reduced LP&L’s claimed ‘labor costs’ from $360.84 to $284.74.” LP&L also seeks an increase in the award for “overhead” from 10% to 13% of the costs of repair.

Obviously, this is a test case with the parties attempting to persuade the court to establish a model method of computing damages when a utility company undertakes its own pole repairs and/or replacement as a result of an automobile collision. Able counsel for both litigants have meticulously and exhaustively discussed each element of damages as it bears upon their respective positions. As persuasive authority, we have been asked to consider various non-Louisiana decisions; however, we first look to our own Louisiana cases:

Southwestern Electric Power Company v. Canal Insurance Company, 121 So.2d 769 (La.App. 2nd Cir., 1960), involved a utility company’s claim for damages to their electric light pole. The Second Circuit observed:

“The total expenses incurred by plaintiff were actual, direct out-of-pocket expenses incurred by reason of the tortious act. Plaintiff is, in our opinion, entitled to recover its actual loss in wages and material and is entitled to be restored in the same position it was in prior to the accident. This has been so held by our Supreme Court in Sugar Bros. Co., Ltd. v. City of Monroe, 1931, 173 La. 760, 138 So. 658, and Lambert v. American Box Co., 1919, 144 La. 604, 81 So. 95, 98, 3 A.L.R. 612.

The court allowed the costs of replacing and setting the new pole, removing the damaged pole, and installing temporary bypass lines.

Some courts in Louisiana have rendered judgments including “overhead” expenses when proven. (See Interurban Transportation Company, Inc. v. F. Strauss & Sons, 196 So. 367 (La.App. 2nd Cir., 1940); Freeport Sulphur Company v. S/S Hermosa, 526 F.2d 300 (5th Cir., 1976).) However, in Illinois Central Railroad Company v. Cullen, 235 So.2d 154 (La.App. 4th Cir., 1970) writs denied 256 La. 789, 239 So.2d 172, we observed that:

“ ‘Overhead’ charges . . . without further and sufficient explanation certainly do not appear to be reasonable and ordinary charges and in the absence of such explanations we cannot conclude the same were properly made. The trial court was correct in refusing to render a judgment awarding plaintiff those ‘overhead’ charges.”

We are impressed with the discussion in Central Illinois Light Company v. Stenzel, 44 Ill.App.2d 388, 195 N.E.2d 207 (1964), and Ohio Power Company v. Huff, 12 Ohio Misc. 214, 231 N.E.2d 897 (1967). Particularly noteworthy is the following language from the Ohio Power Company case:

“Damages must be proximate and cannot be remote or speculative. There is no logical or legal connection between the breaking cf a wooden power pole by the defendant and salaries of clerks in offices, superintendents of construction, distribution superintendents, safety coordinators, general office accounting personnel, supervisors of transmission and distribution, supervisors of labor relations, etc. The salaries of these persons whose salaries are fixed, did not flow from, nor were they affected by the negligence of the defendant. These salaries and expenses would have been paid if the defendant had not broken the pole and damaged the connected facilities. Such operating expenses might be proper in fixing a rate schedule, but we do not feel that they have anything to do with damages to a power pole.
“If we try to compute by a percentage, as claimed by the accountant of the plaintiff, the percentage would be the same if one, fifty, or no poles were destroyed, and would not be affected by the number of items charged to the inventory. Fixed income employees and store expenses are remote matters from the accident which the defendant had.
“This court is in full accord with the statement of Justice Reynolds in his opinion in the Central Illinois Light Company case, hereinabove mentioned, and we quote therefrom:
“ ‘The supervision costs, unless directly connected with the repair of the pole and line, the store expenses, and the general overhead, are such expenses that would have been incurred and paid, without regard to the breaking of the pole. They constitute part of the operating expenses of the plaintiff and this court can see no relation of these costs to the negligence of the defendant. In so holding, this court is cognizant of the complex costs of operation of a business such as that of the plaintiff, but at the same time, this court cannot see any thread of continuity, any relation, whatsoever, between the cost of operation of the plaintiff, and the damages occasioned by the defendant breaking the pole of the plaintiff. We think the rule of damages which requires that the damages must be those that flow as the natural consequence of the negligence of the defendant must not be ignored. In doing so, we are not ignoring the facts of business life, but following the law of damages. To hold otherwise would be to shift some of the costs of operation of the light company from the people who use electricity to those who are guilty of some damage to the property of the company. If this is permitted, it seems logical that any debtor of the light company, upon being sued for the debt, would be liable for overhead, supervision and other items, in addition to the amount of the debt.’
“We further agree with the statement of the law by the court in the New York Electric Company case, [New York State Electric & Gas Corp. v. Fischer, 43 Misc.2d 178, 250 N.Y.S.2d 567], herein-above mentioned, to the effect that damages to utility property consists of actual cost of expenses together with present day costs of replacing damaged or destroyed equipment, less accrued depreciation.
“The fact that the plaintiff herein is a public utility and subject to the jurisdiction of the Public Utilities Commission of Ohio and the Federal Power Commission should not affect the rule of damages. A tortfeasor should not be penalized because of the public character of the corporation which seeks to recover.
“Accounting procedure cannot change established principles of tort liability. The tortfeasor is liable for the value of the asset at the time of the damage, and any change in this liability resulting from bookkeeping methods is unwarranted.
‡ * Sfc Sfc $ }(!
“We realize that rate making is not before this court; however, valuation of certain property of the Ohio Power Company, a wooden power pole, is before the court for consideration, and a comparison or examination of value for other purposes may help in shedding some light in the solution of the question herein involved.
“The sections of the Ohio Code which regulate utilities also point up the fact that a public utility is assured of a fair and reasonable rate on its investment through the rates to be charged to its customers, and which said charges cover all expenses by way of wages, salaries, repairs, and upkeep.
“It also protects a utility from any loss by way of depreciation in fixing the valuation of its property and the accompanying rate to be charged. As to depreciation, the argument that an old or used pole is good, and is as valuable as a new pole, so long as it holds up the wires, could well be used for a house, desk, filing cabinet, deep freeze, boat, or any other property; by painting, staining, aluminum siding, and various methods of renewal and preservation, its life might be prolonged indefinitely and it would answer the purpose for which it was originally designed and intended, just the same as a wooden pole treated with chemicals, creosote, etc.”

Defendant asserts that a depreciation credit should be allowed. LP&L, on the other hand, claims that their utility poles have no discernible life expectancy beyond a period for accounting purposes and, accordingly, contend that there should be no depreciation credit when a pole is replaced following an accident. LP&L does not internally account for the cost of each pole on an individual basis but rather takes a tax deduction for depreciation based on the entire system of approximately 327,000 poles. While the life of a utility pole may be estimated, it is impossible to determine the actual life of any one pole.

In denying any deduction for depreciation, the trial court relied upon Gulf States Utilities Company v. Guidry, 183 So.2d 122 (La.App. 1st Cir., 1966) and Gulf States Utilities Company v. Faucheaux, 181 So.2d 404 (La.App. 1st Cir., 1965), and, in our view, correctly interpreted the Second Circuit’s view expressed in Southwestern Electric Power Company v. Canal Insurance Company, supra, as support for the principle that depreciation should not be taken into account in determining the proper measure of damages under these particular circumstances.

Counsel has stipulated, and the record corroborates, that the actual cost of materials used was $43.98.' To this figure, LP&L has added a “8% Stores” charge to cover the expenses of warehousing, including salaries, purchasing, stores accounting, storeroom, freight, physical inventory, and adjustment expenses covering materials that become obsolete. These “expenses” would be incurred even if there was no ascertainable tortfeasor since poles continuously need replacement. These charges are neither closely related to nor directly attributable to defendant’s stipulated liability.

The record reflects that an LP&L crew did the necessary repair work from approximately 12:00 a. m. (midnight) to 7:30 a. m.—a total of 7V2 hours. The record supports a total of 37.5 overtime hours for the crewmen at an average overtime rate of $4.05 per hour. Applying this rate to the 37.5 hours worked (since this was work performed in addition to the regular 8-hour workload for a single day), we find a labor cost for the crewmen of $151.88. The average straight labor rate for the three servicemen who were involved with the repairs is $3.10 per hour and therefore the overtime rate would be $4.65 per hour. Total overtime for the servicemen was 18.5 hours. Therefore, the overtime labor costs chargeable to these individuals amounts to $86.03 (i. e. $4.65 per hour X 18.5 hours). Adding the labor costs for servicemen and crewmen produces a total direct labor cost of $237.91.

The LP&L accounting department had determined the average cost per operating mile of its various vehicles. It has concluded that the company’s experience show a current cost of 20$ per mile for % and 1 ton trucks 30$ per mile for trucks IV2 tons and larger. Accepting the actual mileage of the trucks used and applying the rates set forth in the Treasury and Accounting Instructions of LP&L, we find the total cost for the trucks to be $43.80.

Thus, we find that the record supports a recovery for the following actual damages:

Materials $ 43.98 Direct Labor 237.91 Automotive 43,8Q Total $325.69.

The record further supports a finding that the direct labor costs are not the only labor costs that are attributable to this replacement job.

The record supports a finding that the men who did the work at a direct labor cost of $237.91 also receive fringe benefits which cost LP&L approximately 27.85% of the direct hourly (or monthly) wages yet LP&L’s Schedule of Fringe Benefit Costs includes “Premium pay for overtime.” Since overtime labor costs have been used as the basis for damages in our computations, we are unwilling to apply the “fringe benefit factor” to the overtime rate, but will apply same to the straight time rate.

An overhead factor is allowable in the ultimate computation but is, by its very nature, necessarily reached on a somewhat arbitrary basis. It is our view that each case must be resolved on its own particular facts. Stated another way, an “overhead factor” can be allowed as a proper item of recovery if, indeed, the district judge has concluded, as a matter of fact, that an overhead factor has been proven. Not every plaintiff in every tort case is able to allege, stand ready to prove, and ultimately prove that there is an overhead factor in the proper computation of the damages that have occurred by reason of a particular tort. In some instances, it is obvious that such a computation would, for all practical purposes, be “deminimis non curat lex.” Each plaintiff and his counsel must not only determine whether such an overhead factor is, as a matter of fact, susceptible of proof, but also whether or not it is economically feasible for them to proceed with the order of proof necessary to substantiate this portion of a claim.

If they do, indeed, conclude that such a factor can be proven and is a material item of damages in the particular litigation involved, then they must go forward carrying the burden of this proof in the same manner and with the same dignity as is required for the proof of any other item of damages.

Thereafter, if the district judge before whom the case is being tried concludes that the order of proof with respect to the overhead factor is sufficiently defined and supported by the evidence, then he may, within the broad discretion which he brings to such deliberations, make an appropriate award covering same. We cannot pick and choose some specific percentage as a proper overhead factor. Different circumstances in different settings can, of a certainty, form the basis for vastly different overhead computations and results. It is conceivable that a tortfeasor could be obliged to respond to a judgment that included an overhead factor far greater than 10 to 15 percent and it is, likewise, just as conceivable to conclude that a tortfeasor could not be made to respond to any overhead factor whatsoever — depending, entirely, on circumstances surrounding the particular order of proof.

To an appreciable extent, the same observations are true with respect to the determination and application of depreciation as an offset.

Certainly, any effort to effect an offset as a method of reducing damages is the burden of the party seeking the offset. Thus, if the record clearly supports a plaintiffs contention that the cost of a new pole (required to be installed because the pole has been destroyed) is a particular amount, then it is the defendant’s burden to show that such amount should be reduced by applying some depreciation factor. But, again, only the particular facts of each particular case can set forth a proper basis upon which the trial court may make the ultimate determination of whether or not to allow such depreciation as an offsetting factor — and to what extent. If the defendant is able to convince the jury or the trial judge that a depreciation factor is a legitimate deductible in coming to an overall computation of the damages, then it should be allowed. Again, it is conceivable that depreciation could be allowed in very substantial measure in some instances and, likewise, just as conceivable that it could be totally disallowed. In all such instances, the defendant and his counsel must ultimately determine whether or not such depreciation can, in fact, be effectively proven and whether or not the effort to show such depreciation is, in fact, feasible from the standpoint of time, effort, cost of developing the evidence, etc.

What we wish to make clear is that the items of “overhead” and “depreciation” are nothing more and nothing less than elements in the overall order of proof of special damages. They can be proven and disproven, challenged, and supported in the same way as any other item of damages and must, ultimately, pass the same tests applied in proof of damages.

For this court to embark upon the drafting of definitive rules for the finite method of ultimate computation of damages as it has to do with replacement of telephone poles or utility poles would be as futile as to embark upon defining a finite method by which a trial judge or jury should ultimately decide how to fix damages attributable to a broken arm or a ruptured interverte-bral disc. The order of such proof is, by its very nature, something that can not be so totally structured as to provide a set mathematical or legalistic formula for its ultimate computation.

In this case, the “overhead factor” which was taken into account in the framing of the judgment is not sufficiently supported by evidence relating it to the matter at issue. In fact, there is really no proof that overhead, as such, is directly related to this particular pole replacement. The only evidence that even concerns itself with this issue is that which shows the method of accounting used by LP&L in figuring overhead. That is not sufficient.

Accordingly, we find that the judgment should be amended as follows:

Labor expense (direct) $ 237.91
Indirect labor expense (fringe benefits) based upon the straight time rate of the crewmen and servicemen who worked on the job 39.65
Materials 43.98
Automotive 43,80
Total $ 365.34.

As amended, the judgment is affirmed. Each party shall bear its own costs of this appeal.

AMENDED AND AFFIRMED.

      . There is no reason to restrict LP&L’s recovery to labor costs based only on the employee’s hourly rate of pay if they prove that the overall cost of that labor is, in fact, in excess of that amount. Conversely, a company which provides no provable fringe benefits to its employees may not add such a factor in reaching an ultimate determination of labor costs for a particular job.

      . LP&L’s “fringe benefit factor” of 27.85% includes an overtime factor of 2.05%. Thus, we apply the 25% rounded-off figure (as suggested by LP&L) in making our computation.


source: Caselaw Access Project

author: BOUTALL, Judge.

license: Public Domain

text:
    Lilion M. WILLIAMS v. Tommie L. MORRIS et al.
    No. 7869.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1977.
    Rehearing Denied March 15, 1977.
    Writ Refused May 6, 1977.
    James S. Thompson, Porteous, Toledano, Hainkel & Johnson, New Orleans, for Tommie L. Morris, Morrison Cab Service, Nola Bonding Co. and Reserve Ins. Co., appellees.
    Lyman L. Jones, Jr., Gillespie & Jones, Metairie, for Lilion M. 'Williams, plaintiff-appellant.
    Before LEMMON, STOULIG and BOU-TALL, JJ.
   BOUTALL, Judge.

This is an appeal from a judgment of the trial court which dismissed plaintiffs suit for damages for personal injuries, based on a finding that she failed to prove her claim by a preponderance of evidence.

The petition alleges an injury to her back received by plaintiff-appellant Lilion M. Williams while she was riding home in a taxi driven by defendant-appellee Tommie Morris and operated under the company name of Morrison’s Cab Service. Plaintiff alleges that during the course of the journey in the taxi she was thrown to the floor of the rear of the. taxi when the driver swerved to miss a turning auto on Airline Highway. Plaintiff further alleges that the driver had been driving recklessly and that the taxi was speeding at the time of the swerving maneuver. It is her contention that had the taxi’s rate of speed not been excessive, the driver could have avoided the turning vehicle without suddenly swerving and thus preventing the plaintiff from being hurled onto the floor of the taxi.

To support her contention that she was injured while riding in the defendants’ taxi, plaintiff offered the testimony of her daughter and a neighbor. Jackie Ratcliff, plaintiff’s daughter, testified that she was at home when she saw a cab driver helping her mother out of the taxi. He told her she had fallen from the seat to the floor. She noted that the taxi was a Morrison Cab, but that defendant Tommie Morris was not the driver.

The plaintiff’s neighbor, Roosevelt Charles, testified that he saw the plaintiff get out of the taxi in a manner that gave the appearance that the plaintiff was injured. As for the identity of the cab or the driver, Charles could only testify that he thought the taxi was a black Chevrolet.

The plaintiff testified that immediately upon entering her home she noted on a paper napkin the number of the taxi, which she claimed to be # 1024, and the vehicle license and the driver’s name on the side of the taxi. At the trial the plaintiff did not produce the napkin with the license number on it, although she could recall the name on the side of the taxi to be Tommie Morris, and that the number on the taxi itself was 1024. However, she testified positively that defendant Tommie Morris was not the driver of the taxi.

The defendant, Tommie Morris, testified that on the night of the accident he did in fact own two taxis, neither of which was a Chevrolet, and that on the night in question the taxis were operated by him and another driver, not a party to the suit. The defendant testified further that the certificate numbers of the taxis were 1025 and 1611, not 1024 as claimed by the plaintiff to be the certificate number of the taxi in which she was injured and denied that a suggested license plate was on his cabs. On the night of the alleged accident, Morris was driving taxi number 1611 and he had no knowledge of an accident or incident from the rental taxi.

We have related the testimony above because of the trial judge’s finding of no preponderance of evidence. Insofar as defendant Tommie Morris is concerned, all of the testimony shows he was not the driver of the taxi as alleged in the petition. However as to the other defendants, there could be liability either vicariously or as insuror. If plaintiff’s evidence is true, there should be judgment against Morrison Cab Service, Nola Cabs, Inc. and Reserve Insurance Company. Disbelief of- this evidence results in dismissal of all defendants. The issue here is not the usual one of negligence of the public carrier, but whether plaintiff was a passenger in this particular public carrier.

Plaintiff urges the application of the rule governing the liability of a common carrier as set forth in the case of Wise v. Prescott, 244 La. 157, 151 So.2d 356 (1963). The court in Wise said:

“The mere showing of injury to a fare-paying passenger on a public conveyance and his failure to reach his destination safely establishes a prima facie case of negligence and imposes the burden on the carrier of convincingly overcoming such case.” (Citations of authorities omitted.)

Our case poses an issue prior to the application of that rule. Plaintiff here is required to establish the identity of the public conveyance and must do this by a preponderance of the evidence under the usual rule applicable to plaintiffs as set forth in the case of Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621 (1972):

“Preponderance in law means credibility, influence, and weight and not the number of witnesses. Wilson v. Morris, La.App., 139 So.2d 93, cert. denied.
“By a preponderance of evidence is meant, simply, evidence which is of greater weight, or more convincing, than that which is offered in opposition to it; that is, evidence which as a whole shows that the fact or causation sought to be proved is more probable than not. Town of Slidell v. Temple, 246 La. 137, 164 So.2d 276; Naquin v. Marquette Casualty Company, 244 La. 569, 153 So.2d 395; Perkins v. Texas & New Orleans Railroad Company, 243 La. 829, 147 So.2d 646.” (Emphasis added)

The testimony offered by plaintiffs witness is obviously contrary to the allegations of the petition as to the identity of the driver of the taxi, and is vague in part and incorrect in part as to the identity of the vehicle. The record supports a conclusion that the testimony is not credible and that plaintiff has not proven her claim by a preponderance of the evidence.

Accordingly, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.


author: MORIAL, Judge.

text:
    Stephen Randal MORRISON v. Ernest V. RICHARDS, III and Michael Patrick Psilos.
    No. 7884.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1977.
    Rehearing Denied March 15, 1977.
    Writ Refused May 6, 1977.

      Charles E. McHale, Jr., New Orleans, for plaintiff-appellee.
    James A. McPherson, New Orleans, for defendant-appellee.
    Lee R. Leonard, New Orleans, for defendant-appellant.
    Before GULOTTA, SCHOTT and- MORIAL, JJ.
   MORIAL, Judge.

Plaintiff filed this suit for a partition by ■licitation of certain real property situated in Jefferson Parish. He claimed the ownership of a one-fourth interest in indivisión with defendants Ernest Richards, III, and Michael Psilos. The district court rendered judgment declaring plaintiff and defendant Psilos each to be the owner of a one-fourth (V4) interest in the property and the defendant Richards to be the owner of a one-half (Vz) interest in the property. Defendant Richards appeals contending that he is the sole owner of the property. We' affirm.

.Plaintiff claims to have obtained an interest in the property by virtue of a supplemental judgment of possession in the succession of his mother Mrs. Dolores Richards. Mrs. Richards, the wife of defendant Richards at the time of her death, was the mother of plaintiff and defendant Psilos. Prior to their marriage in March 1962, Mr. and Mrs. Richards entered into a prenuptial agreement. They consented not to establish a community of acquets and gains and agreed that any property acquired by either party would remain his or her separate property. In 1972 by an authentic act of sale, in which Dolores Richards and Ernest V. Richards, III are named as co-vendees, the couple purchased the Jefferson Parish property for their home.

Defendant Richards argues that the property was purchased entirely with his separate funds. He introduced his cancelled checks showing that the payments had been made with funds from his separate checking account. He contends that Mrs. Richards did not obtain any legal interest in the property and, therefore, her sons have no basis on which to claim an interest therein.

Plaintiff relies on the authentic act of sale as proof of ownership of an undivided one-half interest in his mother’s share of the property. Mrs. Richards was named as co-vendee in the act of sale and signed it as such. Plaintiff argues that parol evidence may not be admitted to controvert the provisions of an authentic act. See LSA-R. C.C. Articles 2275, 2276. In the alternative, plaintiff argues that defendant Richards made a donation of a one-half interest in the property to his wife by virtue of the authentic act.

The district court found that parol evidence was admissible to show the respective interests of the vendees relying on the cases of Oxford v. Barrow, 43 La.Ann. 863, 9 So. 479 (1891); Manning v. Harrell, 59 So.2d 389 (La.App. 2 Cir. 1952); Succession of Washington, 140 So.2d 906 (La.App. 4 Cir. 1962) and Garcia v. Dulcich, 237 La. 359, 111 So.2d 309 (1959). The district judge also held that a rebuttable presumption of a donation arose since the legal requirements for an act of donation had been met. The court found that defendant Richards failed to produce sufficient evidence to rebut the presumption and concluded that a donation had been made to Mrs. Richards. The district court relied heavily on the case of Carter v. U. S. ex rel D. I. R., 399 F.2d 340 (5 Cir. 1968) a tax case with facts similar to the case herein. In Carter a couple had entered into a prenuptial agreement negating a community. After their marriage they jointly purchased real property. The husband paid for the property with his separate funds. However, in Carter both husband and wife testified that a donation of a one-half interest had been made. The court held that they were co-owners of the property.

We find it unnecessary to reach the issue as to whether or not a donation took place. The authentic act of sale before the notary and two witnesses is conclusive proof of the resulting co-ownership of the property by Mr. and Mrs. Richards. An authentic act is full proof of the agreement contained therein and cannot be attacked by parol evidence in the absence of allegations and proof of fraud, error, a counter letter, interrogatories or admissions of facts. Weysham v. Aiavolasiti, 227 So.2d 798 (La.App. 4 Cir. 1969).

Oxford, Manning and Washington relied on by the trial judge only permit the introduction of evidence for the limited purpose of determining the respective interests of co-vendees listed in an authentic act, when such act is silent as to that issue. Defendant Richards should not have been allowed to introduce evidence to contradict what was actually contained in the act, that is, an ownership interest in Mrs. Richards.

The Garda and Carter cases also relied on by the district court in finding that a donation was made are also distinguishable from this case. In Garcia and Carter all co-vendees judicially admitted that one party had paid the entire consideration and a donation had been made to the other. Parol evidence can be introduced to controvert an authentic act where admissions of fact to the contrary are made by the parties thereto. Elrod v. LeNy, 193 So.2d 299 (La.App. 4 Cir. 1966). In the case herein there have been no such admissions of fact. The co-vendee is deceased and we find no reason to controvert the transaction as reflected by the authentic act of sale. Therefore, we conclude that at the time of sale, Mrs. Dolores Richards became the owner of a one-half interest in the property and such property rights passed into her succession at the time of her death. Accordingly, her legal heirs are entitled to inherit her interest in and to the said property.

For the foregoing reasons, the judgment of the district court is affirmed.

AFFIRMED.


author: LEMMON, Judge.

text:
    Georgette M. BARBIN v. CNA INSURANCE.
    No. 8042.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1977.
    Rehearing Denied March 15, 1977.
    Writ Refused April 22, 1977.

      Constant G. Marquer, Jr., New Orleans, and Benjamin C. Bennett, Jr., Marksville, for plaintiff-appellee.
    Deutsch, Kerrigan & Stiles, Frederick R. Bott, New Orleans, for defendant-appellant.
    Before SAMUEL, LEMMON and GU-LOTTA, JJ.
   LEMMON, Judge.

Plaintiff’s employer, an insurance company, has appealed from a judgment awarding her workmen’s compensation benefits for total and permanent disability. Issues include the disputed occurrence of an accidental injury on the job and the extent of resulting disability.

Plaintiff, who had worked for defendant as a clerk typist for three years prior to the alleged incident, testified: On October 11, 1973 she strained her back when she attempted to move her desk with the assistance of Mary Meric, the processing supervisor. She told Miss Meric about the injury and also mentioned it to James Norvell, another employee. When the pain continued throughout the morning, she attempted to see Dr. Lawrence O’Neil during her lunch hour, but was given an appointment for the next day because he was out of the office. She returned to work for the rest of the day and also informed Mr. Sarine, the office administrator, of the accident. During the night she was unable to sleep because of back pain. The next day she went to Dr. O’Neil, who placed her at bed rest, and she so informed Miss Meric. She has not worked since.

As to the occurrence of the incident, Miss Meric admitted helping plaintiff move the desk, but denied plaintiff ever complained of strain or injury. Norvell had no recollection of a desk moving incident or of plaintiff’s complaint on injury. Mr. Sarine was out of state at time of trial and was no longer in defendant’s employ.

Thus, the issue of the occurrence on an accident on the job basically involves resolution of conflicting factual testimony. The trial judge apparently accepted plaintiff’s version of the incident and rejected the version related by Miss Meric. While there was other evidence (relating more to the question of the underlying disability) which militated to some extent against plaintiff’s credibility, we cannot say after review of the complete record that the trial judge manifestly erred in concluding that an accident did occur.'

The more difficult issue involves the extent of the disability resulting from that accident. Defendant attacked the sufficiency of plaintiff’s evidence as to disability primarily on the basis that the trial testimony of Dr. O’Neil, the only physician presented by plaintiff, was different from the testimony given in an earlier deposition. rA chronological development of the medical facts is necessary to demonstrate the problem.

In 1970 Dr. O’Neil had removed plaintiff’s gall bladder and a malignant polyp from her colon. Then in July, 1973 he treated her for tension and nervousness and notified her employer that she needed some time off, because of pressure from the tedious work.

On October 12, 1973, the day after the desk moving incident, Dr. O’Neil found marked tenderness over each lumbosacral joint and tenderness and rigidity in the lower half of the abdomen, but no palpable masses. He prescribed an anti-inflammatory drug, as well as an antibiotic to prevent development of diverticulitis, which is usually found to some degree in persons over the age of 40. (Plaintiff was 58 years old at the time.)

Plaintiff showed improvement in examinations over the next two weeks, but rectal examination revealed marked tenderness and spasm of the levator ani muscles, which serve to uphold and raise the pelvic floor and function chiefly in defecation. Dr. O’Neil stretched these muscles and continued the medication, and by November 30 the tenderness and pain had subsided.

Plaintiff did not obtain other employment, but she did receive unemployment compensation, stating in her application that she was ready, willing and able to work.

On February 11, 1974 plaintiff returned to Dr. O’Neil, complaining of severe back pain radiating across both sides. He again found tenderness and spasm of the levator ani muscles. The doctor explained that when these muscles are dilated in treatment, it is common for the patient to obtain relief for several weeks or several months only to suffer a recurrence of symptoms. He continued similar treatment through the middle of March.

About a month later she returned with back pain after having moved a chair, and Dr. O’Neil found marked tenderness over both levator muscles. When the spastic condition continued into July, Dr. O’Neil referred plaintiff to an orthopedic surgeon who diagnosed lumbosacral sprain and recommended a back brace. In a July 30, 1974 report Dr. O’Neil stated plaintiff’s physical activities had returned to normal, although she still had occasional attacks of lower abdominal pain and rectal spasm. He examined her three times in September and twice in January, 1975, and on each occasion found moderate tenderness in the back and rectal areas. He did not examine her again thereafter.

Plaintiff testified that she attempted to find work after being discharged by Dr. O’Neil in December, 1974 (presumably meaning January, 1975), but was unable to find anything in her line.

In a March, 1975 deposition Dr. O’Neil stated that plaintiff’s underlying problem was diverticulitis. However, at the January, 1976 trial he explained that at the time of the deposition he was in the beginning stage of a serious illness which incapacitated him for several months and that after reviewing his records, he concluded he was in error as to that statement. Dr. O’Neil further explained that while diverticulitis can produce pain in the back and in the rectal and abdominal areas, the whole pattern of plaintiff’s record did not fit that diagnosis.

In summary as to causation Dr. O’Neil, stating that such spasms could occur intermittently and that trauma was the most common causative factor, related plaintiff’s condition to the desk-moving incident which she had described. He also observed that nervousness and tension could have prolonged the symptoms of traumatic origin.

While Dr. O’Neil’s testimony was discredited to some extent by the contradictory diagnosis in the earlier deposition, his overall testimony was otherwise uncontradicted and provides reasonable support for a finding of disability through January, 1975. Nevertheless, there was no opinion given as to the probability of continuation or recurrence of disability, and there was no evidence whatsoever that plaintiff was still disabled at time of trial (or that she was disabled at any time after January, 1975) from any condition related to the accident. The finding of permanent disability is therefore unsupported, and the judgment must be modified to that extent.

We therefore conclude that plaintiff’s disability, if any, at time of trial is the result of anxiety and tension which pre-dated the accident. The medical evidence failed to establish a causal connection between the trauma and the condition of the anxiety and tension. The evidence further failed to establish that the back injury, caused by the trauma, resulted in permanent disability-

Accordingly, the judgment of the trial court is amended to award compensation benefits only through January, 1975 and all medical expenses incurred through that date. As amended, the judgment is affirmed.

AMENDED AND AFFIRMED.

      . Dr. O’Neil admitted plaintiff could have returned to work at that time, but four days after the injury she had submitted a letter of resignation, accompanied by a letter from Dr. O’Neil advising the termination because of tension and pressure.

      . He had never found a mass or tenderness in the colon and had never felt a mass in rectal examinations. Furthermore, he noted that tenderness from diverticulitis would have occurred mainly on the left side, where the colon is located, and that plaintiff always had tenderness on both sides, above the levator ani muscles. In addition, X-rays in April, 1973 and December, 1974 were negative for diverticulitis.

      .Perhaps defendant was entitled to a continuance when Dr. O’Neil changed his opinion in trial testimony, but counsel chose instead to rely on insufficiency of plaintiff’s evidence and to appeal from an adverse judgment. That choice was vindicated to the extent that the evidence was insufficient to support a finding of permanent disability.


text:
    Dr. Lincoln D. PAINE and Judy Jones Paine v. CHECKER CAB CO., INC., et al.
    No. 8074.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1977.
    Rehearing Denied March 15, 1977.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Robert Henry Sarpy, Jr., New Orleans, for plaintiffs-appellants.
    Pitard,"Pitard & Porobil, James G. Ma-guire, New Orleans, for defendants-appel-lees.
    Before SAMUEL, REDMANN and BEER, JJ.
   BEER, Judge.

The plaintiffs, Dr. Lincoln D. Paine and his wife, Judy Jones Paine, sued defendants, Checker Cab Co., Inc. (hereafter, “Checker”), its insurer, Protective National Insurance Company, and Robert L. Paige, for damages arising out of a collision which occurred on July 4, 1974, involving Checker’s taxicab, driven by Paige, and a vehicle owned by plaintiffs, being driven at the time by Mrs. Paine. Their children, Yvonne, Isabelle and Adrienne, were passengers. Defendants denied liability and specially pleaded contributory negligence. After jury trial, a unanimous verdict was rendered “for the plaintiffs” awarding Dr. Lincoln D. Paine $2,000.00 . . for the damage and/or loss of the use of his automobile, and for any medical or other expenses he may have incurred on behalf of himself and/or his wife and children.” Judgment was, accordingly, entered in favor of Dr. Paine. Plaintiffs filed a rule to tax costs, and the rule was made absolute (with written reasons assigned) awarding some, but not all, of the costs sought. Plaintiffs have appealed devolutively from the judgment on the rule as well as the judgment on the verdict contending that the amount of the damages and costs awarded were insufficient. Defendants did not appeal nor did they answer the appeal.

Since the jury verdict was “for the plaintiffs, Dr. Lincoln D. Paine and Judy Jones Paine . . .the only plausible meaning we can ascribe to it is that the jury concluded that Mrs. Paine was not negligent and that Robert Paige was negligent in proximately causing the accident. Furthermore, the record clearly supports a finding of liability on the part of Paige.

At the trial, Mrs. Paine testified that as a result of the accident, she experienced “severe pain” resulting from the injuries to the shoulder, neck, low back and left thigh. This condition persisted throughout the fall of 1974. Officer Rudolph H. Boudreaux, who was the investigating officer, testified that all of the persons in the Paine vehicle made complaints of pain or momentary unconsciousness. Nevertheless, Mrs. Paine testified that although the children were upset by the accident, none of them were injured.

Dr. Claude S. Williams, an expert orthopedic surgeon, testified that he examined Mrs. Paine on July 5, 1974 (the day after the accident) and found that she had sustained a strain of the “neck and lower back as well as a strain of the left shoulder (and) arm . . . with probably contusions of the areas.” Dr. Williams saw her again on July 19, 1974, at which time she was still complaining of some discomfort. A lumbo-sacral corset was prescribed. Dr. Williams characterized Mrs. Paine “as a stoic person who is not a complainer.” On cross-examination, Dr. Williams characterized Mrs. Paine’s injuries as “mild to moderate.”

The amount of the damages to be allowed for the alleged pain and suffering experienced by Mrs. Paine and of the Paine children is, of course, within the discretion of the jury. Since the record can support a finding that the children experienced no pain and suffering, we need not address that issue further. However, Mrs. Paine obviously incurred some degree of pain and suffering. The fact is unrefuted in the record and we must now address that issue:

In Robinson v. General Motors Corp., 328 So.2d 751 (La.App. 4th Cir., 1976), we dealt with a similar situation and concluded that although some award was necessary, we should not disregard the obvious discounting of plaintiff’s injury by the jury. Guided by the procedure followed in Robinson and being of the view that the award should be at the lower limit of the range for such injuries, we make a general damage award to Judy Jones Paine in the amount of $250.00.

In their rule to tax costs, plaintiffs sought $144.00 and $595.56 to cover expert fees of Denson Engineers. The trial court allowed a total of $150.00, which we find to be within the province of the trial court’s discretion.

Accordingly, the judgment on the verdict is amended so as to award $250.00 in favor of Judy Jones Paine and against defendants Checker Cab Co., Inc., Robert L. Paige and Protective National Insurance Co. In all other respects, the judgment is affirmed, each party to bear their own costs of this appeal.

AMENDED AND AFFIRMED.

      . The basic jury award, viewed in light of the plaintiffs’ various demands, is, we believe, a noteworthy indication of their being generally unimpressed by the damages allegedly attributable to the accident.


author: REDMANN, Judge.

text:
    Jessie P. WALLACE v. GOODYEAR TIRE AND RUBBER CO., and Travelers Ins. Co.
    No. 8118.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1977.
    Rehearing Denied March 15, 1977.
    Writ Refused April 26, 1977.
    W. Donald Cashio, New Orleans, for plaintiff-appellant.
    Julian G. Baudier, Jr., New Orleans, for defendant-appellee.
    Before SAMUEL, REDMANN and BEER, JJ.
   REDMANN, Judge.

Plaintiff appeals from the dismissal on the merits of his suit for workmen’s compensation benefits for total and permanent disability. We affirm the rejection of that demand but award compensation for permanent impairment of function.

Heavy tires fell on plaintiff’s neck, causing injury requiring a C-5, 6 laminecto-my which has left plaintiff with a disability estimated by the physicians at 10 to 15% of the body as a whole but which does not disable him from doing heavy labor. An occipital neuritis (in the C-2 region) causes pain in the left rear portion of plaintiff’s scalp, but the pain is evaluated by the physicians as non-disabling. Plaintiff also presented a psychiatrist who diagnosed a depression reaction from the injury which disables plaintiff from working: but defendants presented a psychiatrist who concluded that plaintiff had no depression or other psychiatric illness.

The record thus supports the trial judge’s conclusion that plaintiff did not bear the burden of proving that he is permanently and totally disabled, either physically or mentally.

The evidence does establish, however, a permanent impairment of the function of plaintiff’s back from the laminectomy. This serious impairment is compensable by benefits during 100 weeks under R.S. 23:1221(4)(p); Hammond v. Sewerage & Water Bd. of N. O., La.App. 4 Cir. 1967, 204 So.2d 699. The amount of the weekly benefits is to be reasonable and in proportion to the specific schedule of benefits; id. Courts have awarded $25 for 10% to 15% disability resulting from loss of back function since 1961, Griffin v. Liberty Mut. Ins. Co., La.App. 2 Cir. 1961, 131 So.2d 153. Since 1961, the maximum weekly benefit under R.S. 23:1202 has risen from $35 to $49 as of the date of this accident (and to much higher levels since). In 1975, an award of $30 weekly for loss of two upper front teeth was upheld in Jenkins v. Orieans Parish Sch. Bd., La.1975, 310 So.2d 831. We conclude that our plaintiff, with a 10 to 15% loss of physical function to the body as a whole (including an occipital neuritis which had continued over 100 weeks as of the time of trial), should have an award of $37.50 weekly for 100 weeks, subject to credit for the compensation already paid.

Accordingly, while we affirm the refusal of benefits for total and permanent disability, we reverse the complete rejection of plaintiff’s demand and there is judgment for plaintiff against defendants for benefits of $37.50 for 100 weeks from June 27, 1972, with credit for $2,479.40 previously paid, with legal interest on the unpaid installments from due date until paid, and all costs.

      . Accord, Ball v. American Marine Corp., La.App. 4 Cir. 1963, 150 So.2d 865, aff’d 245 La. 515, 159 So.2d 138 (10% of body); Hammond, supra (10% of back); Cormier v. Zigler Shipyards, La.App. 3 Cir. 1972, 264 So.2d 236 (15% of back); obiter dictum in Coffey v. Transport Ins. Co., La.App. 4 Cir. 1962, 138 So.2d 158, cert. denied (10 to 15% of back).


author: BOUTALL, Judge. STOULIG, Judge,

text:
    William WACTOR v. GURTLER HEBERT CONSTRUCTION CO.
    No. 8132.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1977.
    Rehearing Denied March 15, 1977.
    Writ Refused May 6, 1977.

      Reuter & Reuter, Arthur C. Reuter, Jr., New Orleans, for Gurtler, Hebert & Co., Inc., defendant-appellant.
    Frank S. Bruno, New Orleans, for William Wactor, plaintiff-appellee.
    Before LEMMON, STOULIG and BOU-TALL, JJ.
   BOUTALL, Judge.

Plaintiff William Wactor brought this action against his employer, Gurtler Hebert Construction Company, for workmen’s compensation benefits for injuries received while in the course and scope of his employment with the defendant construction company. The defendant suspensively appeals the judgment of the trial court finding the plaintiff to be permanently and totally disabled, and awarding penalties and attorney’s fees for defendant’s failure to pay benefits.

The plaintiff was working as a pipe-fitter for the defendant at the time of the accident and it is uncontested that the accident did occur during the course and scope of the plaintiff’s employment with defendant. On March 11, 1975 the plaintiff fell from a ladder into a hopper of mud, striking his right knee and chest. Within an hour of the accident, the plaintiff was taken to see Dr. Ward Turner.

Dr. Turner’s report, which was forwarded to the defendant, noted contusions of the right knee and chest and effusion of the right pre-patella bursa. The plaintiff missed several days of work, then returned to work on March 15, 1975 for 3 days. Plaintiff was unable to perform his duties with the defendant because of the pain he experienced in his right knee and reported his problem to his foreman and his employer.

Subsequent visits to Dr. Turner revealed swelling and induration of the area around the right knee. On April 7, 1975 the plaintiff was discharged from Dr. Turner’s care with the instruction that the plaintiff was to see an orthopedist if pain in the knee recurred. At the time of Dr. Turner’s discharge there was still evidence of a hardening of the tissue over the patella.

Within a few days of the discharge from Dr. Turner the plaintiff attempted to work for Kellog Company at Shell Oil, but worked only a few days because he could not climb ladders and do other aerial work which was required of him as a pipe-fitter. Following that attempt to work the plaintiff was unable to work and out of work for approximately 11 weeks. Plaintiff filed suit on June 18, 1975. At the time of the trial he was employed with another firm, S. I. P. as a pipe-fitter, although the plaintiff alleges that he can only work on the ground as a foreman rather than at a height because of his bad knee.

No action was taken by the employer until one week after this suit was filed, June 25, 1975, when the defendant had the plaintiff examined by an orthopedist, Dr. Matko Milicic. Dr. Milicic testified that he had first seen the plaintiff on June 25,1975 and has seen him on numerous occasions since that date. Dr. Milicic found on examination that the plaintiff had tenderness over the right knee and joint and the circumference of the right thigh was slightly less than that of the left thigh. He expressed his impression as to the cause of plaintiff’s complaint to be degenerative arthritis of both knees, chondramalacia of the right patella, and possible medial meniscus injury to the right knee. Dr. Milicic forwarded a copy of his report on July 15, 1975.

Dr. Milicic further testified that with the conditions found to exist in the plaintiff, the complaints of pain were to be expected and that hard work could cause such pain to occur in the injured area. He stated his belief that the accident aggravated the arthritic condition and that in line with the injury, plaintiff’s complaints of pain were believable. Dr. Milicic had informed the defendant’s compensation insurer of his conclusion that the accident of March 11, 1975 had aggravated the arthritic condition and that the plaintiff’s pain could only be relieved by surgery to the knee. Even with that information the defendant made no effort to pay benefits-to the plaintiff or to arrange for surgery for the plaintiff.

The orthopedist ended his testimony with the observation that the normal recovery period is three to six months after such an operation and that the plaintiff would be immobilized and out of work for that period. Additionally, Dr. .Milicic stated the medically computed disability for an injury such as the plaintiff’s to be 20% permanent disability of the lower, extremity. Dr. Mili-cic said that although the same amount of medically computated disability would exist after the surgery as before the surgery, that plaintiff's pain would be relieved.

Plaintiff contends that because of the pain in his knee he is permanently and totally disabled from performing work in his trade as a pipe-fitter. Although there is no exact standard by which a trier of fact can rely to determine if a worker’s pain is substantial and disabling, we note that the fact question depends upon the circumstances of each case. Bailey v. Schott & Company, Inc., La.App., 334 So.2d 753 (1976).

In this case the only evidence before us as to pain suffered by the plaintiff is the testimony of the plaintiff, his wife and the orthopedist. All three testified to the fact that the plaintiff was experiencing and could be expected to experience pain. No other persons were called by the plaintiff to support his claim of debilitating pain. Dr. Turner’s report was stipulated into evidence. The defendant failed to enter evidence to discredit plaintiff’s claim of pain that prevented him from working in his trade that required climbing or aerial labor, which are integral parts of a pipe-fitter’s work.

This court has held that a compensation claimant is not entitled to compensation benefits unless the pain is substantial enough to prevent a claimant from carrying out some of the functions of his job or that the pain is so intense that it hinders the claimant in the fulfillment of his duties. Dupard v. M & G Construction Co., La., 312 So.2d 660 (1975). It is sufficient to establish disability that the normal duties of the claimant’s occupation causes a worker to experience frequent, substantial pain. Miller v. Alex J. Kondroik Millwork Company, Inc., La.App., 320 So.2d 569 (1975). In light of the unrefuted testimony of the witnesses that the plaintiff was experiencing pain and that it did hinder him in his work as a pipe-fitter, we can find no error on the part of the trial court in finding the plaintiff to be permanently and totally disabled.

We next consider the issue of the correctness of the trial court’s determination that the action of the defendant in failing to pay benefits was arbitrary, capricious and without probable cause such as to entitle the plaintiff to penalties and attorney’s fees. Such a determination is implied by the trial court’s award of penalties and attorney’s fees. We must rely on the record for evidence that the defendant acted in a manner that would authorize the application of LSA-R.S. 23:1201.2 The defendant stipulated that the accident occurred during the course of plaintiff’s employment by the defendant. Additionally, the defendant’s safety engineer who was responsible for handling compensation claims, testified that he had knowledge of the accident and the plaintiff’s claim of disability and also the orthopedist’s reports and recommendation of surgery. We have already set out the chronology above. Nonetheless the defendant made no attempt to pay any disability benefits. When asked for an explanation by plaintiff’s counsel why no benefits were paid, the safety engineer of the defendant replied, “I did not (start compensation benefits) .

I heard somewhere along the line he was working.” (Tr. 66) The trial court gave no reasons for its finding that the refusal to pay benefits or make arrangements for the plaintiff to be operated on to relieve the pain was arbitrary, capricious and without probable cause. However, the record supports that finding because of the defendant’s knowledge of plaintiff’s physical condition, its failure to investigate the circumstances of further employment, and the corresponding failure to make any effort to compensate the plaintiff. Accordingly, we find no manifest error on the part of the trial court in making such a determination in accordance with R.S. 23:1201.2.

Defendant-appellant also raises the issue in this appeal whether the defendant company is subject to the provisions of LSA-R.S. 23:1201.2 providing the imposition of penalties and attorney’s fees against employers not covered by Workmen’s Compensation Insurance. Gurtler Hebert Construction Company did not raise the defense in its answer or at trial on the merits. Further, the defendant’s safety engineer testified that the defendant company was self insured to the extent of the first $15,-000 of workman’s compensation liability. Gurtler Hebert’s workman’s compensation insurer (referred to only as a Chicago insurance company) would not have been liable until the benefits paid by Gurtler Hebert reached a point of $15,000 and the defendant cannot now hide behind its self-insurance arrangement for immunity from penalties and attorney’s fees. Penalty provisions such as R.S. 23:1201.2 have as their basic purpose the discouragement of employers and or insurers from attitudes of indifference to the difficulties incurred by injured employees. Poindexter v. South Coast Corporation, La., 204 So.2d 615 (1967).

Defendant argues on appeal that a new trial should have been granted because of newly discovered evidence. Defendant points out that the plaintiff failed to undergo corrective surgery after trial even though plaintiff claimed under oath that he was willing to do so when arrangements were made. We note that the judgment of the trial mourt ordered the defendant to make all necessary arrangements for the knee surgery. The defendant made the arrangements for surgery but refused to pay any disability benefits, so we can find no importance in the statement that plaintiff refused to undergo surgery.

The final issue raised in this appeal is the appropriateness of the award of attorney’s fees by the trial court. The trial court awarded attorney’s fees ■ in the amount of $5,000. The defendant points out that while the skill and ability of plaintiff’s counsel are unquestioned, the award of that amount is beyond being reasonable and is in fact punitive in nature, exceeding maximum statutory attorney’s fees allowed by LSA-R.S. 23:1141.

We disagree with defendant-appellant’s contention that based on the short length of the trial, the major facts being stipulated, and the few witnesses whose testimony was taken, the award of $5,000 attorney’s fees is excessive and should be reduced.

The penalty attorney’s fee is fixed and determined upon the basis of the attorney’s skill and the amount of work performed by him in the prosecution and collection of the total claim. Jackson v. Phoenix Insurance Company, La.App., 252 So.2d 511 (1971); Redding v. Cade, La.App., 158 So.2d 880 (1963). Other factors to be considered in determining the attorney’s fee is the amount involved and the amount of work necessarily undertaken by the attorney. Ray v. Superior Iron Works and Supply Co., Inc., La.App., 284 So.2d 140 (1973). The maximum attorney’s fee provided by the compensation act itself is not a determining factor in the amount of penalty attorney’s fees to be assessed. Cain v. Employers Casualty Company, 236 La. 1085, 110 So.2d 108 (1959).

In determining the reasonableness of attorney’s fees the trial court has much discretion. While the amount awarded is more than that awarded in previous comparable cases, we cannot substitute our opinion for that of the trial judge. An appellate court must find that the trial judge has abused the ‘much discretion’ accorded him in order to modify the award. Miller v. Thomas, 258 La. 285, 246 So.2d 16 (1971). We can find no manifest error in the amount of attorney’s fees awarded. Accordingly,

The judgment appealed is affirmed.

AFFIRMED.

STOULIG, J., dissents in part.

STOULIG, Judge,

dissenting in part.

I respectfully dissent in part from that portion of the majority view which affirms the award of $5,000 for attorney fees. In my opinion this amount is excessive for the services rendered and therefore constitutes an abuse of the trial court’s discretion.

A review of the record reflects the following activity by plaintiff’s counsel: (1) the filing of the petition some three months after the accident and slightly more than 30 days after claimant was discharged by his treating physician; (2) request for an issuance of a subpoena duces tecum to the employer for his file on plaintiff’s accident; (3) a pre-trial conference on January 2, 1976; (4) a notice of deposition of plaintiff by defendant and apparently the taking of the deposition; (5) a written stipulation that the medical report of Dr. Turner would be received in evidence in lieu of his appearance in court; (6) trial on its merits, which according to the uncontradicted statement of appellant’s counsel lasted less than two hours and which consisted of four witnesses (plaintiff, one doctor, and two lay witnesses) and resulted in a transcript of 71 pages of testimony (31 medical and 37 lay); (7) appearance at the hearing on a motion for a new trial and memorandum submitted in opposition thereto; and (8) this appeal.

In addition to the foregoing it must be assumed that there were the customary conferences between the attorney and client which led to the filing of the petition and the other activities normally associated with the trial of a compensation claim. It is to be noted that the occurrence of the accident during the course and in the scope of employment covered by the compensation statute, plaintiff’s rate of pay, and the medical report of Dr. Turner in lieu of his appearance were stipulated. There were no countervailing medical reports or testimony presented by defendant. The skill and dispatch with which plaintiff’s attorney_ handled this claim is acknowledged and unquestioned.

From the foregoing it is obvious that the pursuit of plaintiff’s claim to its ultimate conclusion was not very time consuming in its factual, medical, and legal development. In my opinion the assessment of the attorney fees under R.S. 23:1201.2 should be based upon an evaluation of the skill of the attorney, the time involved, the degree of difficulty, and the result achieved. The burden rests with the attorney to present to the trial judge evidence of the extenuating circumstances not normally encountered in the trial of a compensation claim which required him to devote an unusual amount of time in pursuit of his client’s claim and for which he should be additionally compensated. In the absence of such evidence, though not controlling, statutory limitations specified in R.S. 23:1141 should be used as a persuasive guideline in the setting of attorney fees under Section 1201.2 as being the legislative expression of a reasonable attorney fee in compensation cases.

In my opinion the record as presented to this court and taking into consideration those factors which are normally attendant with this type of litigation, I am of the opinion that the award of $5,000 attorney fees for the services rendered in this matter constitutes an abuse of the trial court’s discretion and to the extent that they are excessive, they are punitive.

      . R.S. 23:1201.2(A) says, in part: “.
      Any employer whose liability for claims arising under the provisions of this Chapter is not covered by insurance, shall pay the amount of any claim due under the provisions of this Chapter, within sixty days after receipt of written notice. Failure to make such payment within sixty days after receipt of notice, when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the employer to a penalty, in addition to the amount of the claim due, of 12% of the total amount of such claim, payable to the claimant, together with all reasonable attorney’s fees for the prosecution and collection of such claim . The provisions of R.S. 23:1141 limiting the amount of attorney’s fees shall not apply in cases wherein the employer is found liable for penalties and attorney’s fees under the provisions of this Section.” * * *

      . R.S. 23 § 1141 says in part * * * “in no case shall the fees of an attorney who renders services for an employee coming under the provisions of this Chapter exceed twenty per centum of the first $5,000 of any award and 10% of the part of any award over $5,000.00.”


author: GULOTTA, Judge.

text:
    Calogero TODERO v. The GREAT ATLANTIC AND PACIFIC TEA CO., INC.
    No. 8164.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1977.

      Bernard Jack Usprich, New Orleans, for plaintiff-appellee.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, James L. Selman, II, New Orleans, for defendant-appellant.
    Before GULOTTA, SCHOTT and MORIAL, JJ.
   GULOTTA, Judge.

Defendant appeals from a total and permanent disability award in a workmen’s compensation case. It is defendant’s contention, on appeal, that plaintiff failed to show by a preponderance of the evidence that back injury resulting in the removal of a cervical disc was caused by a job-related accident and, alternatively, that plaintiff failed to establish total and permanent disability. We affirm.

According to plaintiff, while bending to pick up meat in connection with his duties as a butcher, he suffered neck injury resulting in the removal of a ruptured disc at the C-6, C-7, interspace, causing total and permanent disability.

Supporting its contention that plaintiff’s back problem was not work-related, defendant points out that no report was made by plaintiff to the store manager on the day of the accident, December 27, 1973, or on the day following the accident when plaintiff and the store manager had lunch together while at work. Defendant further points out that on December 29, while in the emergency room at Touro Infirmary and at the office of an orthopedic surgeon (who performed the operation), plaintiff denied connection between his neck problem and any accident. Both the store manager and a meat merchandiser at A&P, according to defendant, stated that plaintiff had not mentioned the accident or injury until January 5, 1974, after surgery had been recommended. Additionally, defendant maintains that contrary to its established policy, no report of the accident was made by plaintiff to the store manager immediately after the occurrence although plaintiff had been aware of defendant’s policy requiring injured employees to do so.

Defendant suggests that the trial judge erred in placing any credibility on the testimony of plaintiff’s immediate boss, Lennox Roy. This witness (Roy) stated that on the day of the unwitnessed accident, plaintiff had told him that he had waited on a customer purchasing a shoulder roast and that he thought he had hurt himself. Roy further testified that on the following day while plaintiff was cutting meat and waiting on customers, Todero had complained that “he was kind of hurting”.

Plaintiff, on the other hand, in addition to testifying that he had told Roy of the accident and resulting pain within 30 minutes after its occurrence, also stated that he had informed the store manager of the incident at lunch the following day. The conflicting testimony was resolved in favor of plaintiff by the trial judge. We cannot say he erred, as claimed by defendant.

We also reject defendant’s alternative contention that plaintiff’s inability to lift in excess of 25-30 pounds would not impair his meatcutting duties. Unrebutted is plaintiff’s testimony that requirements of his job involved handling meat weighing between 110 and 120 pounds. Furthermore, Dr. Kenneth N. Adatto, the orthopedic surgeon, testified that plaintiff was restricted from lifting objects in excess of 25-50 pounds. According to Dr. Adatto, plaintiff could not resume his preinjury occupation because of the requirement that he handle heavy sides of meat. The doctor further indicated that it is “extremely plausible and possible” that the incident described by plaintiff could have caused the disc problem.

It is true, as pointed out by defendant, that plaintiff bears the burden of showing by a preponderance of the evidence, just as in any other case, that the accident and disability were work-connected. Guillory v. New Amsterdam Casualty Company, 244 La. 225, 152 So.2d 1 (1963); Jones v. Hauser Printing Company, 182 So.2d 829 (La.App. 4th Cir. 1966). However, it is also equally well-established that questions of a work-related accident and causal connection between the accident and the disability are factual in nature and will not be set aside absent manifest error.

In the cases cited by defendant to support its burden-of-proof claim, the reviewing courts affirmed dismissals of plaintiffs’ claims based on factual determinations. These cited cases are not authority for defendant’s suggestion that the credibility determinations made by the trial judge should be set aside.

We conclude that the factual findings made by the trial judge, based on credibility determinations, are supported by the record. Having so concluded, we reject defendant’s contention that plaintiff failed to show by a preponderance of the evidence that the injury was job-related and that plaintiff sustained total and permanent disability. The judgment is affirmed.

AFFIRMED.

      . Crump v. Goodyear Tire & Rubber Company, 325 So.2d 373 (La.App. 2d Cir. 1976); Francis v. Gerlach Meat Company, Inc., 319 So.2d 534 (La.App. 2d Cir. 1975).

      . Serean v. Kaiser Aluminum & Chemical Corporation, 277 So.2d 732 (La.App. 4th Cir. 1973); Rebaudo v. Security Insurance Company, 259 So.2d 467 (La.App. 4th Cir. 1972).

      . Kirkham v. Consolidated Underwriters Insurance Company, 219 So.2d 827 (La.App. 2d Cir. 1969); Pritchard v. City of New Orleans, 162 So.2d 784 (La.App. 4th Cir. 1964); Setliff v. Vaughn, 198 So.2d 178 (La.App. 3d Cir. 1967); Gautreaux v. Travelers Insurance Company, 205 So.2d 783 (La.App. 1st Cir. 1967); Alien v. George W. McCoy & Company, 176 So.2d 173 (La.App. 4th Cir. 1965); Carter v. Casualty Reciprocal Exchange, 163 So.2d 855 (La.App. 2d Cir. 1964); Dooley v. Reserve National Insurance Company, 258 So.2d 129 (La.App. 2d Cir. 1972).


author: LEMMON, Judge. STOULIG, Judge,

text:
    Giuseppi LOVISA v. EMPLOYERS INSURANCE OF WAUSAU and American Terrazzo and Tile Company, Inc.
    No. 8169.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1977.
    Rehearing Denied March 15, 1977.

      Reed, Reed & D’Antonio, Floyd J. Reed, Metairie, for plaintiff-appellee.
    Ronald L. Ronzello and Louis M. Kiefer, Jr., New Orleans, for defendants-appellants.
    Before LEMMON, STOULIG and BOU-TALL, JJ.
   LEMMON, Judge.

Plaintiff’s employer and its insurer have appealed from a judgment awarding plaintiff workmen’s compensation benefits for total and permanent disability. On appeal defendants question the sufficiency of the evidence of existence of a disabling condition and the award of penalties and attorney’s fees for arbitrary failure to pay benefits.

Plaintiff was a terrazzo mechanic employed by American Tile & Terrazzo Co. In addition to being an officer of the corporation and a shareholder, he was a working foreman who prior to the accident worked daily as a member of a terrazzo crew.

While working on a job in December, 1973, plaintiff sustained a left inguinal hernia which required surgical repair. The general surgeon who performed the January, 1974 surgery testified that the surgery was successful and that plaintiff expressed no complaints of pain during the two-month postoperative period before discharge.

Plaintiff returned with complaints of pain one year after the operation and again an additional four months later, but the doctor’s examination on both occasions revealed no evidence of recurrent hernia. The doctor did find marked tenderness in the area under the scar, and he expressed his belief that the pain was genuine and that plaintiff was not malingering, noting that plaintiff was a stoic individual who tolerated pain well. However, he had no opinion as to the cause of the pain, although he stated “my opinion was that it was hurting”. The only question and answer directly relating to the connection between the pain and the hernia surgery was the following:

“Q. Yes, sir. Now, does it happen in your experience following surgery that people will complain of pain that is not readily medically explainable:
“A. Occasionally, yes.”

Additional evidence consisted of extensive lay testimony concerning the duties of a terrazzo mechanic and the extent of plaintiff’s activities after the surgery. About 40% of a mechanic’s work involves spreading and smoothing terrazzo mix with a straight edge, which is 12 to 14 feet in length. The mix is prepared by helpers and poured onto the area which is being covered, whereupon the mechanic pushes or pulls the pile of mix with the straight edge in a stooping position. When a large area is being covered, the mechanic must spread large amounts of the fast-drying mix quickly. Besides spreading and leveling the mix with the straight edge, other duties of the mechanic include spreading and floating the cement underbedding, rolling the terrazzo mix with .100-pound and 200-pound rollers after seeding, and troweling the mix to a finish with a small trowel. Normally, the entire crew loads the truck with materials at the beginning of the day's activities, but helpers perform most of the carrying of materials during the course of the day.

One of American’s other terrazzo mechanics testified that plaintiff can no longer manage the straight edge alone, especially on jobs involving a large area, or lift heavy materials without complaints of pain. He noted that the difficulty in using the straight edge is the weight of the mix being spread.

• American’s manager testified that plaintiff can still mark and set strips and sprinkle to seed the floor after floating, but cannot do floating and use the straight edge except on small jobs. He affirmed that he would not hire a mechanic who could not operate the straight edge without restriction.

Two of American’s helpers testified that plaintiff can no longer do the heavy work he did before his injury and that he complained of stomach pain whenever he attempted strenuous duties.

Plaintiff testified that a mechanic pulls 100 to 150 pounds with the straight edge on normal jobs, that he can no longer do any but the smallest jobs and that he “suffers the consequences” when he does even these small jobs. He also stated that most of his present duties were supervisory.

The trial judge was apparently very impressed with the lay testimony, since he not only awarded benefits for total and permanent disability, but also imposed penalties and attorney’s fees. After reviewing the entire record, we conclude that the limited medical evidence and the extensive lay testimony support a conclusion that plaintiff was unable to perform a substantial portion of the duties required of his skilled trade without suffering substantial pain. Indeed, he doubtless would not still be employed by American except for the special consideration in assignment of duties because of his peculiar position with the company. Accordingly, we affirm the finding of total and permanent disability.

However, while the evidence in this record supports a finding of total and permanent disability, the trier of fact could reasonably have reached a different conclusion. Under those circumstances we cannot say that defendants were arbitrary or unreasonable in requiring a judicial determination of plaintiff’s evidence. We therefore set aside that part of the judgment which awarded penalties and attorney’s fees.

For these reasons the judgment of the trial court is amended to delete the award of penalties and attorney’s fees. As amended, the judgment is affirmed.

AMENDED AND AFFIRMED.

STOULIG, J., concurs and assigns reasons.

STOULIG, Judge,

concurring.

I concur in the majority opinion affirming the trial court’s determination that the plaintiff is entitled to workmen’s compensation benefits for total and permanent disability and I am also in accord with the action of the majority in setting aside the award of penalties and attorney fees.

I have with reluctance concurred in the finding of the trial judge that plaintiff did bear the burden of proof necessary to sustain that he is totally and permanently disabled. I have done so solely because I am unable to conclude that as a matter of fact or law that in so doing the trial judge was manifestly erroneous. However, I candidly admit I would have reached a contrary result.

Accepting as true the testimony tendered on behalf of the plaintiff, the record reflects: (1) Mr. Lovisa can only perform 60 percent of the customary duties of a terrazzo floor mechanic; (2) he has been paid his full wages from the date of his hernia operation in 1973 through the date of the trial in 1976 and in all probability through the present date; (3) he received an increase in wages during each succeeding year during this period; and (4) according to its president, the employer would not hire a terrazzo mechanic with Mr. Lovisa’s disability.

From this evidence it is obvious that plaintiff because of his 40-percent disability is not actually earning the wages he is being paid and therefore he is being gratuitously paid wages in lieu of compensation benefits. In my opinion it is repugnant to the intent of the statute that an employer who retains at full salary a disabled employee who cannot perform the customary substantial functions of his employment must simultaneously pay in addition thereto weekly compensation benefits. Such an anomalous situation of an employee being paid full salary and at the same time receiving compensation benefits for his inability to perform the services for which he is being paid his full salary defeats the purpose of the act itself, which is to provide sustenance to an individual who can no longer reap the full benefits of his customary trade or profession because of his disability. The only alternative an employer would have to avoid double payment, i. e., unearned wages and compensation benefits, would be to discontinue his voluntary payment of unearned full wages, to the economic prejudice of the employee.

In my opinion the compensation statute contemplates that under the circumstances of this case a finding of total and permanent disability be made and the employee awarded 500 weeks of compensation benefits; however, for each and every week that he is continued in his employment at full salary, his employer should be given credit for a gratuitous payment of unearned wages in lieu of compensation. Since the appellant did not seek this credit either at the trial or appellate level, this court should not sua sponte invoke this right which can be waived by the employer.


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    Deborah Donaldson SCHEXNAYDER v. Keith SCHEXNAYDER.
    No. 8173.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1977.

      Victor E. Bradley, Jr., Norco, for Deborah D. Schexnayder, plaintiff-appellee.
    Daniel E. Becnel, Jr., Robert R. Fau-cheux, Jr., Reserve, for Keith Schexnayder, defendant-appellant.
    Before LEMMON, STOULIG and BOU-TALL, JJ.
   BOUTALL, Judge.

This appeal arises from a judgment in a suit for separation which granted the plaintiff Deborah Schexnayder a separation a mensa et thoro, made child support payments in arrears executory in the sum of $288.00, and made the consent judgment relative to child custody and visitation rights the final judgment of the court. Both parties appealed that judgment. Defendant Keith Schexnayder appeals that judgment insofar as it failed to give judgment for him in his reconventional demand for a separation a mensa et thoro and failed to reduce the amount of child support. The plaintiff answers that the judgment failed to award her complete temporary custody of the minor child and failed to award an adequate amount for child support.

Plaintiff had sought a separation on the basis of cruel treatment and, by way of supplemental and amended petition, living separate and apart for one year. During the trial on the merits it was shown that the marriage experienced a strained existence due to numerous arguments between the parties, and that after one such argument the plaintiff left the marital home and moved into her parents’ home. Shortly thereafter, the defendant removed all of the ■ plaintiff’s clothing from the marital home and he himself moved into his parents’ home, leaving the marital domicile for rental. Further, it was shown during the trial on the merits that after the plaintiff had moved from the marital domicile she had been visited at her parents’ home by the defendant and during one such visit the defendant physically struck her.

Defendant argues that the trial court erred in failing to grant him a judgment of separation on the grounds of the plaintiff’s abandonment. Defendant alleges that the abandonment occurred when the plaintiff moved out of the marital domicile in May, 1975, and refused to return to the defendant.

The law applicable to the present situation is Civil Code Articles 138(5) and 143. L.C.C. Article 138(5) reads as follows:

“Separation from bed and board may be claimed reciprocally for the following causes:
# * * * * *
“5. Of the abandonment of the husband by his wife or the wife by her husband; * * *”

L.C.C. Article 143 provides:

“Separation grounded on abandonment by one of the parties 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 to appear in the manner hereafter directed; provided, however, that separation grounded on abandonment may be the object of a reconventional demand in any suit for separation from bed and board.” (As amended Acts 1958, No. 154 § 1.)

We have construed these articles to mean that for a party to prevail on the allegation of abandonment not only must there be a withdrawal from the marital domicile, but there also must be exhibited on the part of the spouse who left a constant refusal to return. Belou v. Belou, La.App., 231 So.2d 580 (1970); Sciortino v. Sciortino, La.App., 188 So.2d 221 (1966).

In the case before us, there is no question but that the plaintiff left the matrimonial domicile. However, the defendant, who is the plaintiff in reconvention, offered no proof or testimony that he had attempted to reconcile with his wife and that she refused to return to the matrimonial domicile. To the contrary, the record and testimony indicate that the defendant moved the plaintiffs clothing out of the matrimonial domicile after she temporarily left and then he himself moved out of the matrimonial domicile and put the house up for rent. His striking her was certainly not conducive of reconciliation. It is our opinion that the acts of the defendant manifested his intent that there be no reconciliation or return to the matrimonial domicile by his wife.

The failure to prove the refusal to return to the matrimonial domicile necessarily prevents us from finding that Mrs. Schexnay-der abandoned her husband, and the evidence of the husband’s fault supports the judgment of separation granted to the wife.

During the proceedings the parties entered into a consent judgment regarding custody of the minor child, visitation rights and child support. Custody of the child under the agreement was to be SV2 days per parent per week and child support was to be set at $125.00 per month. The defendant became delinquent in his support payments and the rule for arrearages was tried with the merits.

Defendant did not contest the fact of the arrearage, but defended on the assertion that, because he kept the child most of the time, the plaintiff was not entitled to child support, and the amount should be reduced. The testimony showed that the defendant had purposely kept the child the majority of the time against the plaintiff’s wishes. It was further brought out that neither parent could adequately care for the child because of their jobs and that the burden of caring for the minor child had fallen on the parties’ respective families, particularly upon the paternal grandmother. We find no merit in the defense to the arrearage of child support and accordingly, we find that the trial court was correct in making the judgment for past due child support in the amount of $288.00 executory.

As for the appropriateness of the amount of child support awarded, we note that the trial judge has much discretion in fixing the amount of child support and his judgment will not be disturbed unless there is a clear showing of the abuse of that discretion. Moore v. Moore, La.App., 256 So.2d 782 (1972); Lamothe v. Lamothe, La. App., 262 So.2d 87 (1972); L.C.C. Article 231. An analysis of the record does not show any abuse of the court’s discretion regarding the amount of child support and accordingly, we affirm.

We now consider the issue of custody of the minor child. There is no direct grant of “custody” of the child in the judgment of the trial court, but only a reference confirming the consent judgment of February 3,1976. That judgment said “The court awards custody jointly to both parties with equal responsibility for the care, legal obligations, and the welfare of the child.”

Our law does not permit such a division of custody of a minor child. The welfare of a child generally requires custody and control under undivided authority, and custody of the child should be given to one of the spouses and not alternatively to each. Cormier v. Cormier, 193 La. 158, 190 So. 365 (1939); LeBouef v. LeBouef, La.App., 325 So.2d 290 (1975).

Necessarily, we must award custody of the child to one parent to give that parent authority to control the minor’s affairs, otherwise, problems arise as are apparent in this case. An examination of the record does not show the mother, Deborah Schex-nayder, unfit, and accordingly we award custody of the minor child to the mother.

However, the trial judge has worked out a plan by consent of the parties for keeping the child at the grandparents’ homes. Although the trial judge uses the term “custody”, he apparently means “supervision and visitation rights”. Although the plan for visitation rights is somewhat unusual, it is temporary and apparently for the best interest of the child. We see no need nor basis to modify the visitation rights. The child’s mother and paternal grandmother seem to have a workable relationship. We will not disturb those visitation rights unless the situation between the parties or of the minor child changes, at which time the party seeking modification of the agreement may apply for relief.

For the foregoing reasons the judgment of the trial court is affirmed as to the granting of a judgment of separation for the plaintiff, making the judgment of child support executory and maintaining the amount of child support. As to the issue of custody of the child, we amend the judgment to award sole custody of the child to the mother.

The judgment appealed from, as amended, is affirmed. Costs of this appeal to be borne by appellant, Keith Schexnayder.

AMENDED AND AFFIRMED.

      . We note that Deborah Schexnayder did not post an appeal bond. Ordinarily we would dismiss her appeal and not consider the issues raised therein. However at a pre-argument conference held prior to filing the record in this court, it was stipulated that child custody and child support were at issue. Under these circumstances, we consider the appeal to be the equivalent of an answer to the first appeal.


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    Mary Louise TUCKER et al. v. The CITY COUNCIL FOR the CITY OF NEW ORLEANS et al.
    No. 8208.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1977.
    Rehearing Denied March 15, 1977.
    Writ Refused May 6, 1977.

      Thomas W. Tucker, New Orleans, for plaintiffs-appellants.
    Lawrence J. Smith, Levy & Smith, New Orleans, for the Jackson Avenue Evangelical Congregation.
    Jack P. Panno, Asst. City Atty., for the City Council for the City of New Orleans, and others.
    Before SAMUEL, REDMANN and BEER, JJ.
   REDMANN, Judge.

Conflicting interests of a society, each entirely worthy in itself, often each look to legislatures for preference and to courts for resolution of their conflicts. Protection of the marine and swamp life of Lake Pontchartrain competes with a plan to extend an airport runway to better serve air transportation. The preservation for present and future generations of an architecturally resplendent or historically important building of a bygone era conflicts with the desire of the building’s owner to construct an efficient modern edifice (or to provide parking space) more suitable to his own plans to serve present and future generations. Even the relevant rules of law present a certain conflict requiring accommodation, as laws to foster preservation of even large districts seek preference over laws providing freedom of property owners to exercise dominion over their property, to do with it what they will.

The case before us presents a conflict between preservationists and building owner. Society’s interest in preserving buildings has resulted in constitutional provision, statute and ordinance indicative of restriction upon an owner’s right. But those laws do not purport to resolve the particular conflict over an individual building. The question that this case asks is who shall resolve the conflict, more than in whose favor the conflict shall be resolved. An historic district commission decided in the preservationists’ favor and the city council which created the commission and retained power to “reverse” it did so, resolving the conflict in the owner’s favor, authorizing the owner to demolish 100-year-old residences in order to provide a safe parking area for attendants at religious services. The preservationists, appealing from a district court’s affirmation of the council, present as their main argument that it is the commission’s duty to resolve the conflicts, and the council’s power to reverse only in cases where the commission has resolved a conflict without a proper eviden-tiary basis. We conclude to the contrary and affirm the district court..

Until recent times such a conflict would not have reached the courts. An owner’s fundamental right in his property since Roman law days included usus, fractus and abusus : use, fruits and abuse — the power to destroy (in Louisiana, C.C. 491, “to use, to enjoy and to dispose of . . .in the most unlimited' manner”). Perhaps the principal stricture on the owner’s absolute dominion usque ad coeium et ad inferos (“to heaven and hell” above and below his land’s surface; in Louisiana, C.C. 505, “all that is directly above and under it”) was the obligation to respect his neighbor’s similar supremacy: sic utere tuo ut alienum non lae-das — so use your own as not to harm another (the basis of La.C.C. 667). The sic utere principle itself resolved a conflict between theoretical supremacies of adjacent neighbors — and, in our Civil Code as article 667, resolves conflicts between neighbors even today. The principle has not, however, been extended to conflicts like that before us, where neighbors, perhaps somewhat removed from the immediate neighborhood, seek to prevent demolition of old (and somewhat run-down) houses on the theory that the demolition will detract from the overall neighborhood by depriving others of the quaint view of a worthy and attractive 10.0-year-old architectural style (presumably somewhat prevalent in the vicinity, although there are also an automobile repair shop and other less attractive buildings).

Owner’s rights have seen more limits over the years, as society recognized that one’s use of one’s property could adversely affect neighbors, adjacent and more remote, in a multitude of ways. Building codes and zoning laws represent severe limitations upon urban and suburban proprietors’ rights. Preservation ordinances restrict those rights even more.

La.Const. (1974) art. 6, § 17 provides the foundation for preservation ordinances:

Subject to uniform procedures established by law, a local governmental subdivision may (1) adopt regulations for land use, zoning, and historic preservation, which authority is declared to be a public purpose; (2) create commissions and districts to implement those regulations; (3) review decisions of any such commission; and (4) adopt standards for use, construction, demolition, and modification of areas and structures. Existing constitutional authority for historic preservation commissions is retained.

La. Acts 1975 No. 804 (printed, under authority of La.R.S. 24:253, as an amendment of R.S. 25:731-745) authorizes municipalities to establish historic preservation district commissions, after certain steps “shall be taken,” § 3. Although the record does not reveal whether other steps were taken, the New Orleans Council did by its Ordinances 5991 and 5992 MCS, adopted June 24, 1976, create an historic preservation district and the defendant commission. As does the authorizing statute’s § 7A, Ordinance 5992 § VI(A) prohibits demolition within any historic preservation district except with commission approval.

The statute itself, § 11, gives to anyone aggrieved by commission action the “right to apply ... to the governing body . for reversal or modification thereof;” and further provides “Said governing body shall have the right to reverse, change or modify any decision of the commission” by a two-thirds vote. Similar wording is found in Ord. 5992 § XIV(A).

Thus, both the statute and the ordinance creating the commission have provided for the ultimate control of the historic districts to remain in the governing body, although the statute requires a two-thirds vote to reverse. Here, the governing body which established the historic district and the historic district commission has unanimously reversed the commission’s decision and has granted permission to demolish the structures.

The commission may indeed have acted on a reasonable basis. Even the untrained eye can see the beauty and distinctiveness of design of the houses, and even (as did the commission) deem one more worthy of preservation than the other. Yet the city council’s basis is no less reasonable: demolition would provide safe parking area adjacent to defendant congregation’s church to protect the members from further beatings and burglaries such as they have experienced when parking elsewhere to attend services.

There are many, many values and variables that can be wholly legitimate factors in evaluating the meritorious but conflicting goals of the preservationists on the one hand and the owners on the other. Presumably a legislative recognition of this multi-faceted process of decision leaves in the governing authority the power to override the commission, while legislative recognition of the commission as more experienced (ultimately) in preservation aims requires the governing authority to act by two-thirds vote, rather than by simple majority.

We therefore understand § 11 of the statute to mean literally what it says: the governing authority, the elected representatives of the citizens of the community, may, without more, reverse the commission. The role of the appointed members of the commission, however important because of their dedicated expertise, is subordinate to that of (two-thirds of) the council.

Accordingly, rejecting plaintiffs’ contrary contention, we hold that the statute does not require the city council to act only in a quasi-judicial capacity in reviewing decisions of the historic district commission. The council’s function is not limited to determining whether the commission acted reasonably. The statute leaves the ultimate weighing of alternative reasonable courses, and the selection of the preferred reasonable course, to a two-thirds vote of the council.

Judicial review of the council’s action is limited to deciding whether the council acted reasonably. We find no error in the trial court’s decision that it did.

Affirmed.

      . That a district had been created was not shown by evidence in the record on appeal. Rather than affirm on the ground that no district was shown to exist, we ordered appellant to file in our court a certified copy of any district-creating ordinance so that we might take cognizance of it under R.S. 13:3712 B. Appellant then filed Ordinance 5991, which created a district including the subject property.