text:
    Raymond MILLER v. Merril J. "Buster" BROWN and Continental Insurance Company.
    No. 11242.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.
    Rehearing Denied June 13, 1977.

      John E. Conery, Lippman, Hunter & Rawls, Franklin, for plaintiff.
    William 0. Bonin, Landry, Watkins, Cousin & Bonin, New Iberia, for defendant Continental Ins. Co.
    Michael J. McNulty, Jr., Bauer, Darnall, McNulty & Boudreaux, Franklin, for defendant Merril J. Buster Brown.
    Robert M. Mahony, Davidson, Meaux, On-ebane, Donohoe, Bernard, Torian & Diaz, Lafayette, for intervenor Continental Ins. Co.
    Before LANDRY, EDWARDS and COLE, JJ.
   LANDRY, Judge.

Plaintiff (Appellant) appeals from judgment dismissing his action against Continental Insurance Company (Continental), as alleged insurer of defendant Merril J. Brown, for damages for personal injuries sustained in an automobile accident. At the time of the accident, Brown, District Supervisor for St. Mary Parish Waterworks District No. 5 (District), was driving a pick up truck owned by District. Appellant, a District employee, was riding in the truck and was injured due to Brown’s alleged negligent operation of the vehicle. The trial court sustained Continental’s exception of no cause of action upon finding that Brown was not afforded coverage by either the Comprehensive General Liability Policy or the Comprehensive Automobile Liability Policy issued by Continental to District. We affirm.

Appellant’s petition alleges his employment by District as a meterman. He also alleges he was injured on July 1, 1974, during the course of his employment. The mishap is alleged to have occurred when Brown, who was driving the truck in the course of Brown’s employment, negligently backed the vehicle into a levee and injured Appellant who was sitting in the back of the vehicle with a fellow-employee meter reader. It is additionally averred that Brown was in the act of driving the vehicle from location to location so that the meter readers could perform their duties.

Paragraph 6 of Appellant’s petition recites:

“St. Mary Parish Waterworks District No. 5, petitioner’s employer, is a public body engaged in the business of furnishing water to citizens of the Centerville area and in connection with its requirements, it must necessarily employ persons such as petitioner to read water meters, etc. During the ordinary and regular course of the performance of its business, the St. Mary Parish Waterworks District No. 5 delegated its duties and responsibilities to Merrill J. (Buster) Brown, its supervisor and chief executive officer who at all times herein pertinent and particularly on July 1, 1974 was directly responsible to oversee the activities of the Waterworks and job .performances of personnel employed by the Waterworks. In that capacity, defendant Brown had a direct responsibility to petitioner and a duty to see to it that petitioner was able to perform his work without unnecessary exposure to injury, and defendant Brown breached that duty owed to petitioner in the above enumerated particulars.”

Appellant alleges that Continental is Brown’s insurer under a Comprehensive Automobile Liability Policy issued to District. Continental denies coverage under its Comprehensive General Liability Policy based on the following exclusion under its coverage provision for bodily injury and property damage liability:

“This insurance does not apply:
* * * * # *
(b) to bodily injury or property damage arising out of the ownership, maintenance, operation, use loading or unloading of
(1) any automobile or aircraft owned or operated by or rented or loaned to any insured. . . .”

In denying coverage under its Automobile Liability Policy, Continental invokes the following provision in Section II, Persons Insured:

“None of the following is an insured:
(1) any person while engaged in the business of his employer with respect to bodily injury to any fellow employee of such person injured in the course of his employment. . .

Applying Pullen v. Employers' Liability Assurance Corporation, 230 La. 867, 89 So.2d 373 (1956), the trial court held Brown was an insured under the Comprehensive General Liability Policy, but not under the Automobile Liability Policy. The trial court also found applicable the quoted exclusion in the Automobile Liability Policy because Brown was Appellant’s fellow employee, consequently there was no coverage under either policy.

Appellant contends the trial court erred in sustaining Continental’s exception of no cause of action despite its holding Brown to be an insured under the Comprehensive General Liability Policy. Appellant argues that, having found Brown to be insured under said policy, the trial court mistakenly applied an exclusion under a different policy-

Relying upon Pullen, above, and Weir v. Williams, 127 So.2d 577 (La.App. 3rd Cir. 1961), Appellant argues the term “insured” must be liberally interpreted in favor of coverage when used in the insuring provision of a policy but must be strictly construed against the insurer when employed in an exclusionary clause. Appellant also suggests that an “executive officer” is not necessarily a “fellow employee” of other employees of a common employer, for all purposes. On this premise, Appellant suggests that the term “fellow employee” as used in the exclusionary clause of the Automobile Liability Policy in question should be strictly construed against Continental and should be interpreted as not including an executive officer which defendant Brown is alleged to be. Appellant adds that since the matter is before the court on an exception of no cause of action, the allegation that Brown is an executive officer is binding insofar as concerns disposition of the exception.

Continental maintains the trial court properly found lack of coverage under its Automobile Liability Policy because the petition alleges facts showing that Brown and Appellant are fellow employees, regardless of Appellant’s characterization of Brown as an executive officer. Continental suggests that the reference to Brown as an executive officer is a legal conclusion, not an allegation of fact. Alternatively, Continental maintains that assuming, arguendo, Brown is an executive officer, he is nevertheless a fellow employee of Appellant and therefore is not afforded coverage under the Automobile Liability Policy. Lastly, Continental urges that the trial court correctly found no coverage under the General Liability Policy but for the wrong reason. In this respect, Continental suggests that coverage under this policy is excluded by the above quoted provision which excludes coverage of “any insured” as regards claims arising out of the operation or use of an automobile.

Assuming, arguendo, that Brown is an executive officer, we find no coverage under the Comprehension General Policy. The policy expressly provides it does not insure any insured against liability arising out of the operation or use of an automobile. The allegations of Appellant’s petition expressly urge Brown’s liability predicated on his negligent operation of a truck. The trial court should have denied coverage on this basis.

We find Pullen, above, factually in-apposite to the question posed regarding alleged coverage under the Automobile Liability Policy. Pullen, above, concerned a policy exclusion excepting coverage as to any obligation for which the “insured” might be held liable for workmen’s compensation benefits or for bodily injury to an employee of the “insured” while engaged in his employment. The insurer contended that because decedent was an employee of the named insured, there was no coverage of the omnibus insured inasmuch as decedent was killed during the course of his employment by the named insured. The court rejected this contention because Mitchell, the omnibus insured, not decedent’s employer, was the insured against whom liability was asserted. The court reasoned that since Mitchell could not be held liable to decedent’s heirs for compensation benefits, the exclusion did not apply to him.

Weir v. Williams, above, is also factually inapposite. This case came up on an exception of no cause of action based on an exclusion similar to that involved in Pullen, above. The court declined to apply the exclusionary clause on the exception because plaintiff’s petition did not aver that the alleged omnibus insured was a fellow employee of plaintiff.

In numerous instances, our jurisprudence has dealt with the so-called “cross-employee” exclusion involved in this instance. We note first, and significantly, Manuel v. Liberty Mutual Insurance Company, 256 La. 480, 236 So.2d 807 (1970), wherein the Supreme Court held there was no coverage, under similar provisions, of an assistant general manager of a chain of retail stores with respect to injuries to a subordinate assistant manager of a particular store. In this case, the injury occurred while the parties were traveling in a vehicle within the course of their employment. While no issue of executive officer relationship was posed in this case, it is interesting that the Supreme Court, nevertheless, sustained the fellow employee exclusion urged by the insurer.

In Jackson v. American Automobile Insurance Company, 103 So.2d 304 (La.App. 1st Cir. 1958), a similar exclusion was held to except coverage of a truck driver who injured a fellow employee in the course of their employment by a common employer.

The same result was reached in Embody v. LeBlanc, 131 So.2d 225 (La.App. 1st Cir. 1961), which involved suit against a carpenter who negligently injured a fellow carpenter while driving a vehicle rented by their common employer. See also Jagneaux v. American Automobile Insurance Company, 136 So.2d 91 (La.App. 3rd Cir. 1961), a truck driver injuring a fellow employee; Welch v. National Surety Corporation, 206 So.2d 545 (La.App. 1st Cir. 1968), the driver of one vehicle colliding with a vehicle being driven by another employee; and Written v. Travelers Indemnity Company, 304 So.2d 715 (La.App. 3rd Cir. 1974).

We pretermit consideration of Appellant’s contention that the term “fellow employee” used in the exclusion in the Automobile Liability Policy should be strictly construed against insurer and should be interpreted to except an executive officer which Brown is alleged to be.

The averment that Brown is an executive officer is not an allegation of fact but a conclusion of law. That Brown is denominated a Supervisor does not make him an executive. We find no factual allegations to support the alleged conclusion that Brown is an executive officer. On the contrary, the allegation that Brown was performing his duties of driving other employees on a meter reading mission is highly suggestive of the conclusion that Brown is not an executive officer. Such duties are normally performed by employees below executive level. The trial court concluded the allegations characterize Brown as an ordinary employee, not an executive. We concur in this finding.

The judgment is affirmed at Appellant’s cost.

AFFIRMED.


source: Caselaw Access Project

author: LANDRY, Judge.

license: Public Domain

text:
    Troy BRUHL v. Loel WHITE.
    No. 11245.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.
    Rehearing Denied June 13, 1977.

      Joel B. Dickinson, Baton Rouge, for Troy Bruhl, plaintiff-appellant.
    Iddo Pittman, Jr., Hammond, for Loel White, defendant-appellee.
    Before LANDRY, EDWARDS and COLE, JJ.
   LANDRY, Judge.

Plaintiff (Appellant) appeals from judgment dismissing his suit against defendant (Appellee) for damages for alleged loss of income, loss of equipment, deterioration of health and humiliation and embarrassment reputedly caused by Appellee’s breach of a lease of the Magnolia Restaurant in Hammond, Louisiana. Appellee reconvened for alleged delinquent rent, which claim was rejected by the trial court inasmuch as the judgment is silent with respect thereto. Defendant has neither appealed nor answered plaintiff’s appeal. We affirm in part, reverse in part and remand to the trial court for further proceedings.

The following issues are presented for determination: (1) Did the parties enter into a verbal lease by virtue of certain parol agreements and their actions pursuant thereto; (2) Did the parties intend that the existence of a lease between them depended upon reduction of the agreement to writing specifying the precise terms of a lease; and, (3) Did the parties revoke the agreement by mutual consent.

Appellee owned the Magnolia Inn Motel, Hammond, which consisted of a motel only, and to which establishment Appellee wished to add a restaurant for the convenience and accommodation of his motel guests. Not wishing to operate the proposed restaurant himself, Appellee was seeking an experienced restaurant man to whom he intended to lease the proposed restaurant. In July, 1972, Appellant, who managed a Pitt Grill Restaurant in Baton Rouge, learned that Appellee was seeking an experienced restaurant operator. Appellant contacted Ap-pellee and negotiations began between them for the lease of the proposed facility.

Eventually, it was orally agreed that Ap-pellee would build a restaurant by adapting Appellee’s existing plans to meet Appellant’s needs and recommendations. It was further agreed Appellee would provide the building and the necessary front furnishings, meaning tables, chairs and counters in the dining area, and that Appellant would provide all kitchen equipment, a cash register, and draperies for the dining area. It was also agreed the restaurant would be operated in conjunction with the motel on a 24 hour daily basis- that room service would be provided for motel guests; and that motel guests could charge meals to their room accounts, which charges would be collected by the motel and remitted to Appellant.

Verbal negotiation between the parties progressed to the point that in September, 1972, Appellant resigned his Baton Rouge position, accepted a temporary job in Hammond, and devoted a considerable portion of his time to supervising construction of the restaurant. It was anticipated the restaurant would open in February, 1973, but construction delays, namely, difficulty in obtaining a particular brick, and inability to secure a paving contractor to surface the expanded parking area, deferred the opening date to July 9, 1973.

As of opening date, no agreement had been reached on the rental, although the parties had verbally agreed to a 5-year lease with an option to renew. It is undisputed that Appellee repeatedly stated he wished to base the rental on the total construction cost of the restaurant and parking facilities, for which reason he could not quote Appellant a lease figure until these costs were ascertained. By mutual agreement, however, the rental was temporarily fixed at $1,000.00 per month, commencing July 9, 1973, until such time as Appellee obtained his final cost figures.

To pay for the kitchen equipment and other facilities Appellant was obliged to provide, Appellant obtained a loan with a local bank in the sum of $35,000.00, of which sum $26,000.00 was to be used for equipment purchases and the remainder for stocking the restaurant and other initial operating expenses. The loan was made possible to Appellant only because Appellee verbally guaranteed payment; it is conceded, however, that Appellee did not co-sign or endorse the note.

Appellant operated the restaurant pursuant to this verbal arrangement from July 9, 1973 until March 12, 1974, when Appellant closed the restaurant at the end of the day’s business, about 10:30 P.M. During this interval, Appellant paid rentals aggregating $6,000.00, based on the verbal agreement to pay $1,000.00 monthly, leaving an arrearage of about $2,000.00.

Shortly after the restaurant opened, difficulties and misunderstandings arose between the parties concerning Appellant’s managerial ability. Appellee was disappointed and dissatisfied with the demeanor, dress and attitude of the waitresses and cashier and the inability or refusal of the help to keep the tables, counters and floors clean and orderly. Dissension also arose over restaurant employees parking their cars in areas reserved for motel and restaurant guests, instead of parking in more remote area designated for employee parking. The record establishes that while Appellant resented Appellee’s intrusion in Appellant’s internal problems, Appellant, nevertheless permitted Appellee to exercise to some degree the rights of an owner as distinguished from those of a lessor.

Approximately two months after occupancy began, Appellant became apprehensive that he would not be granted a written lease. He requested that a lease be con-fected and was told that Appellee did not then have the required cost figures. In January, 1974, Appellant applied for a loan from the Small Business Administration and was advised his application would have to be accompanied by a written lease, which circumstance was made known to Appellee. On February 15, 1974, Appellant again requested a written lease be executed. Ap-pellee’s response was to present a long written list of grievances concerning the operation of the restaurant. On or about February 22, 1974, Appellee verbally advised Appellant in effect that it was apparent Appellant would not exert his authority as manager of the restaurant and see that the place was kept clean and operated in an orderly manner. Appellee added that if Appellant did not intend to change, Appellant might as well leave and that Appellee would take over, do the best he could and pay Appellant for Appellant’s equipment and inventory.

The following day, Appellant asked Ap-pellee if it would be convenient for Appellant to leave three days later. Appellee responded by reminding Appellant that Appellant had a banquet scheduled for March 12, 1974, and Appellant should honor his commitment to the group involved. It was tentatively agreed Appellant would vacate the premises on March 15, 1974. The following week, Appellant advised Appellee that Appellant preferred to leave at the close of business on March 12, 1974, which Appellant did.

The record leaves no doubt but that the parties intended a written lease was to be confected between them. Appellee explained that not only could he not determine the rent until he had his final cost figures for construction of the restaurant and parking, but that it was also necessary to agree on what service the restaurant would provide motel guests; how guest charges would be paid to the restaurant by the motel; and numerous other details concerning operation of the restaurant which affected or concerned the motel and its guests. In effect,. Appellant concedes it was intended that a written lease be entered into but that all aspects of the arrangement had been agreed upon except the rent. Alternatively, Appellant urges a verbal lease at a rental of $1,000.00 per month.

Where parties contemplate that a final agreement is to be reduced to writing which shall contain in detail the arrangement between them, and that the existence of the contract between them depends upon its reduction to writing, the contract does not come into existence and is not enforceable until it is put in writing and executed by them. Laroussini v. Werlein, 52 La.Ann. 424, 27 So. 89 (1899); Dreyfuss v. Process Oil & Fuel Co., 142 La. 564, 77 So. 283 (1917); Stewart v. Schmauss, 191 So.2d 882 (La.App. 1st Cir. 1966).

The record is clear beyond doubt that the parties intended to enter a written lease and that complete agreement was never reached as to its precise terms. Appellant conceded he repeatedly asked that the lease be reduced to writing and that Appellee consistently refused because he could not determine the rent to be charged. It is also clear that the verbal agreement to lease for $1,000.00 per month pending execution of the anticipated written lease, was a lease on a month to month basis, because no other term was even considered by the parties. We also find the anticipated 5-year lease with option to renew never came into existence because the parties never agreed upon one of the most vital aspects of a lease, namely, the rental to be paid.

Appellant’s invocation of the rule that where parties enter into a lease and act upon the agreement, neither may withdraw on the pretext that a contract of lease was not reduced to writing although a written agreement was contemplated, is without merit under the circumstances of this case. In such instances, if a verbal agreement includes all essential details of a lease and is acted upon accordingly, the agreement is binding. Such an agreement, however, must include the essentials of a lease, namely, the thing, the price and the consent. Johnson v. Williams, 178 La. 891, 152 So. 556 (1934); Knights of Pythias v. Fishel et al., 168 La. 1095, 123 So. 724 (1929). In this instance, the parties failed to agree on any rental or term other than a $1,000.00 rental on an interim monthly basis until such time as the prospective lessor determined the rent he would charge for a 5-year lease with option to renew, in addition to other terms to be agreed upon. It is elementary that there can be no lease until there is agreement as to the rental to be paid. McCain v. McCain, 165 La. 884, 116 So. 221 (1928).

We find there was a lease in this instance on a month to month basis at a rental of $1,000.00. Brandagee v. Fernandez, 1 Rob. 260 (1842).

It is well recognized in our law that agreements may be revised or abrogated by mutual consent of the parties thereto. LSA-C.C. Articles 1901, 1945, 2130; Prisock v. Boyd, 199 So.2d 373 (La.App. 2d Cir. 1967). The trial court concluded the parties terminated the agreement between them by mutual consent. We find this determination clearly supported by the evidence.

Having found the parties rescinded the verbal lease by mutual agreement, it follows that Appellant’s claims for loss of profits and other alleged damages predicated upon avowed breach of lease were properly rejected by the trial court.

Appellee concedes his agreement to purchase all of the equipment installed in the restaurant at Appellant’s expense and to reimburse Appellant the actual cost thereof. Appellee concedes he is using much of this equipment in operating the restaurant as Appellee’s personally owned and conducted business. It is impossible, from the record, to determine what amount is owed Appellant for equipment retained and being used by Appellee. In oral argument, Appellee indicated the matter of payment for equipment had been completed in one form or another. However, the record itself does not support such a conclusion.

Out of an abundance of caution, we reverse that portion of the trial court’s judgment which rejected Appellant’s claim for reimbursement of equipment. Under the circumstances, we remand this matter to the trial court for such further hearing as may be necessary for the parties to be fully heard on the question of payment due Appellant, if any, for equipment retained and/or used by Appellee, reserving to both Appellant and Appellee all rights, benefits and obligations incident to any agreement or arrangement they may have entered into regarding payment due Appellant for equipment installed in the restaurant.

Considering Appellee has neither appealed nor answered Appellant’s appeal, Appellee is entitled to no relief from that part of the judgment which rejected Appel-lee’s claim for rent. LSA-C.C.P. Article 2133.

It is ordered, adjudged and decreed that the judgment of the trial court rejecting plaintiff’s demands for payment of equipment retained and/or used by defendant, be and the same is hereby annulled, reversed and set aside, and in all other respects the judgment is affirmed.

It is further ordered, adjudged and decreed that this matter be remanded to the trial court for further proceedings consistent with the views herein expressed, all costs of these proceedings to date to be paid by plaintiff and defendant equally.

Affirmed in part, reversed in part and remanded.


text:
    James A. O'CONNOR v. Dorothy E. TERRY et al.
    No. 11248.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.
    Rehearing Denied June 13, 1977.
    Pat J. Berrigan and James R. Strain, Jr., Slidell, for plaintiff-appellant.
    Timothy G. Schafer, New Orleans, for defendants-appellees Dorothy E. Terry and U. S. Auto. Assn.
    Before LANDRY, EDWARDS and COLE, JJ.
   LANDRY, Judge.

Plaintiff (Appellant) appeals from a jury verdict judgment dismissing his claims for damages for personal injuries sustained in an accident in which a motorcycle being ridden by Appellant was struck from behind by an automobile being operated by defendant Dorothy E. Terry (Appellee), the insured of defendant United Services Automobile Association. We affirm.

The issues presented on appeal are: (1) Was Appellee exceeding the speed limit applicable at the scene of the accident; (2) Was Appellant stopped or traveling slowly along the highway without lights on his motorcycle (the accident having occurred at night); (3) Alternatively, did Appellee have the last clear chance to avoid the accident; and, (4) Alternatively, should this court reverse the long standing contributory negligence rule obtaining in our state, and allow Appellant recovery under the comparative negligence doctrine.

The accident occurred at approximately 11:30 P.M., April 11, 1974, on or near the approach of the Robert Road overpass of 1-12 near Slidell, Louisiana. Robert Road is a north-south two-lane, blacktopped highway, also known as La. 1091. The overpass is situated two or three hundred yards north of the entrance to Country Club Estates, which is situated on the west side of Robert Road. At a point 648 feet north of the northernmost portion of the concrete overpass, Robert Road is intersected by an inferior roadway known as Brown Switch Road. A speed limit sign is presently situated on the West shoulder of Robert Road, about 430 feet south of Brown Switch Road, and approximately 218 feet north of the commencement of the overpass. The area is rural and somewhat wooded, especially north of the overpass. Between Brown Switch Road and the overpass, there is a slight curve in the highway. At the point of impact, the highway rises slightly. The night was dark and heavily overcast. The area north of the overpass was unlighted. The surface of the highway was dry, although rain had fallen earlier that night. To the north of Brown Switch Road, Robert Road is straight for a considerable distance. Appellant was riding a 1973 Suzuki motorcycle. While traveling south on Robert Road, in his proper lane of travel, Appellant’s vehicle was struck from the rear by a 1969 Javelin two-door automobile being driven southerly by Miss Terry, who was accompanied by her guest passenger acquaintance, Sally Smith. The impact occurred virtually in the center of the southbound lane at a point approximately 135 feet north of the north end of the overpass (about 93 feet south of the speed limit sign).

Appellant, 20 years of age at the time of the accident, testified he was traveling with his lights on. He entered Robert. Road from the east via Brown Switch Road after stopping at a stop sign. He looked to his right and saw no southbound vehicle approaching, despite the fact that Robert Road was straight to the north for a considerable distance. He accelerated his bike after entering Robert Road, and was proceeding south in his proper lane at a speed of about 35 to 40 miles per hour. Shortly after turning onto Robert Road, he noted a car parked on the right or west shoulder of the highway with its lights off. He saw that the hood of the vehicle was raised and he also noted two persons, whom he believed to be young girls, standing in front of the vehicle. He thought the girls were having car trouble and perhaps needed assistance. He considered stopping but proceeded ahead a short distance. He again considered stopping, and after traveling about 60 yards beyond the parked car, he decided to turn around and proceed along the shoulder to the stalled car. Preparatory to turning, he slowed the speed of his bike and looked to his rear over his right shoulder. He saw two lights about five feet to his rear and instantly he was struck from behind. He next recalled lying on the highway several feet distant from his motorcycle. In addition to his front and rear burning lights, Appellant’s motorcycle was equipped with front and rear nonburning reflectors and one or more side mounted reflectors. Appellant testified he did not stop on the traveled portion of the road, and was struck before he could begin his turn to the right to take the shoulder of the road.

Miss Terry, in essence, testified she was proceeding toward a local restaurant and lounge after having attended a pre-graduation party at the home of a friend who lived a mile or so north of the overpass. Although alcoholic drinks were available at the party, she did not have a drink. She was traveling in the southbound lane at about 45 miles per hour with 'her lights on dim or low beam. She did not notice a lighted vehicle ahead. She suddenly saw a flash of light which she believed to be a reflection. She applied her brakes but had no time to swerve her vehicle. At the moment of impact, she was unaware of the nature of the object she struck. She did not see the vehicle parked on the side of the highway. After the accident, she went to the aid of Appellant, whom she found lying on the highway partly beneath his motorcycle.

Miss Smith’s testimony is approximately the same as that of Miss Terry, except that she saw the vehicle parked on the side of the highway. She did not, however, see anyone standing outside the parked car. She believes she saw one or two persons seated in the parked vehicle. Although she was looking ahead immediately before the impact, she saw no lights or any other indication of a vehicle ahead. Instantly before the impact, she noted what appeared to be a flash of light which she believed to be some sort of reflection.

The accident was investigated by Sgt. Marion F. Moore, State Police, who was familiar with the area and had patrolled this particular stretch of road on numerous occasions. He determined the point of impact to be in the center of the southbound lane, approximately 130 feet north of the north end of the overpass, in a slight curve and on a slight incline. He found 24 feet of skid marks left by the Terry car in the southbound lane prior to the point of impact. . From scuff marks on the roadway, he estimated the motorcycle was pushed forward about 110 feet after the collision. He estimated Miss Terry’s speed at about 50 miles per hour, and did not cite her for speeding. About 2 hours after the accident, he attempted to interview Appellant in the hospital, but limited his interrogation in view of Appellant’s obvious serious injuries. He noted a slight trace of alcohol on Appellant’s breath, but did not cite Appellant for any offense.

THE SPEED LIMIT ISSUE

On June 21, 1974, approximately 6 weeks after the accident, photographs of the scene were taken by Miller C. Henry, professional photographer. One photograph shows a 30 mile per hour speed limit sign situated approximately 428 feet south of the intersection of Brown Switch Road and Robert Road. The reverse side of the sign bears the legend “12/18/73”. Miller testified the sign was in place the day he took the picture. He could not state when it was posted.

James Moore, District Engineer, Department of Highways, testified that department rules require each posted traffic sign be inscribed on its reverse side with the date of posting. The legend “12/18/73” indicated to him that this particular sign was erected on December 18,1973, although he could not be absolutely certain about the matter. He indicated, that records in his office should indicate the precise date of posting, but that he had not been requested by Appellant’s counsel to produce these records.

Sergeant Moore did not look at the sign on the night of the accident. He assumed the speed limit was 55 miles per hour in the area. Being of the view the sign did not figure in the accident, he did not check it. He recalled the former speed limit of 60 miles per hour on Robert Road had been changed to 55 in compliance with national policy, but so far as he knew, the speed limit in the area was 55 miles per hour at the time of this accident. He believed the sign in question was a sign indicating a reduced speed zone ahead.

Miss Terry and Miss Smith testified substantially to the effect that the sign in question was a 55 mile per hour sign on the date of the accident, but that it was changed to a 30 mile per hour sign 2 or 3 weeks thereafter. They indicated the sign was changed at the request of local authorities who complained that motorists traveling southerly at 55 miles per hour were endangering the lives of motorists slowing down on the south side of the overpass to enter Country Club Estates. They explained that southbound drivers proceeding at 55 miles per hour were suddenly confronted with a 30 mile per hour sign posted on the south side of the overpass between the overpass and the Country Club Estates entrance.

WAS APPELLANT’S MOTORCYCLE ILLUMINATED?

Sgt. Moore owned a motorbike the same make as Appellant’s, but a size larger. He explained the lights on such a machine are controlled by the ignition switch which is operated by means of a key, and also by a control located on the left handlebar. To work the lights, the ignition switch key must be turned to an “on” position. When he arrived at the scene, about 30 minutes after the accident, the lights on the motorcycle were not burning. He found the ignition key on the “off” position. He turned the switch on and found that the headlamp burned feebly. The rear or taillight had been totally demolished and was completely inoperable.

Appellant testified that at the moment of impact his engine was running and his lights were burning. He stated the lights worked solely from the ignition key; that the switch had 3 “on” positions, one of which was for the lights; that there was no control or switch on the handlebar; and, that he did not turn off the switch after the accident because he was several feet from his motorcycle.

Miss Terry stated she found Appellant lying partly beneath his motorcycle after the accident. She saw no lights burning on the motorcycle.

Miss Cheryl Woods, an acquaintance of Miss Terry, traveling northerly along Robert Road, reached the top of the overpass at about the moment of impact, but she did not actually see the accident. She first checked the occupants of the Terry vehicle and Miss Terry told her that she did not see the motorcycle because its lights were not burning. She immediately went to check on Appellant whom she found lying partly beneath his motorcycle. She noted the lights of the motorcycle were not on. She asked Appellant if she could check to see if his lights would work. Appellant assented and turned the ignition key, following which she “flipped a switch” and the lights came on.

Appellant urges manifest error in the jury declining to find that Miss Terry was proceeding well in excess of the posted speed limit of 30 miles per hour, and that her negligence in this regard was the sole cause of the accident. Appellant also urges manifest error in the jury’s failing to find Miss Terry did not maintain a proper lookout; that she failed to see his lighted motorcycle on the highway; and, alternatively, she failed to avail herself of the last clear chance to avoid the accident.

It is obvious that these contentions involve resolution of factual issues. Appellant does not allege error of law on the part of the trial court in charging the jury as to the law applicable to the facts of this case. We conclude, therefore, the jury was properly charged. It follows that the jury, in the light of a proper charge as to the applicable law, has factually determined either, that Miss Terry was not negligent, or that Appellant was contributorily negligent and that Miss Terry did not have the last clear chance to avoid the accident.

Although the record contains conflicting testimony on the factual issues, we find credible evidence of record to support the obvious jury findings on the crucial issues. We certainly find no manifest error in this instance. Under the circumstances, the judgment must be affirmed. Canter v. Koehring, 283 So.2d 716 (La.1973).

COMPARATIVE NEGLIGENCE ISSUE

Appellant contends that LSA-C.C. Article 2323 establishes the comparative negligence rule, but our jurisprudence has erroneously and unintentionally adopted the common law rule of contributory negligence. Appellant also relies upon a law review article by Professor Wex S. Malone, entitled “Comparative Negligence — Louisiana’s Forgotten Heritage”, 6 La.L.Rev. 125 (1945). Appellant additionally cites language appearing in certain of our decisions including Eubanks v. Brasseal, 310 So.2d 550 (La.1975); Kontomitras v. New Orleans Public Service, Inc., 314 So.2d 441 (La.App. 4th Cir. 1975); and Haas v. Southern Farm Bureau Casualty Insurance Company, 321 So.2d 380 (La.App. 4th Cir. 1975), which favors adoption of the comparative negligence doctrine.

The contributory negligence rule has been in effect in this state since 1841 when the Supreme Court decided Fleytas v. Pontchartrain Railroad Company, 18 La. 339 (1841). It suffices that the doctrine announced in Fleytas, above, has been followed and approved by the Supreme Court in instances too numerous to mention.

Where the jurisprudence is clear and unmistakable, this court has no authority to change the policy thereby established. In such instances, it is the duty of intermediate appellate courts to follow the law as established by the decisions of the Supreme Court. Our Supreme Court has consistently decreed that contributory negligence is a complete bar to recovery in a tort action. Assuming, arguendo, we disagreed with the jurisprudence in this regard, we are compelled to follow what is obviously a clear expression of our Supreme Court. Pringle-Associated Mortgage Corporation v. Eanes, 254 La. 705, 226 So.2d 502 (1969).

The judgment of the trial court is affirmed at Appellant’s cost.

AFFIRMED.


author: EDWARDS, Judge.

text:
    ACME REFRIGERATION OF BATON ROUGE, INC. v. CALJOAN, INC. and Harry A. Dawson.
    No. 11169.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.

      Michael H. Rubin, Baton Rouge, of counsel, for plaintiff-appellee Acme Refrigeration of B. R., Inc.
    Frederick Gisevius, Robert J. Shearman, New Orleans, of counsel, for defendants-appellants Caljoan, Inc., and Harry A. Dawson.
    Before LANDRY, EDWARDS and COLE, JJ.
   EDWARDS, Judge.

Acme Refrigeration of Baton Rouge, Inc., Adrian E. Kaiser, Jr., John L. Kaiser, and Kaiser Rentals brought this suit based on unjust enrichment to recover from the defendants, Caljoan Inc. and Harry A. Dawson, property taxes paid pursuant to an erroneous tax assessment. Plaintiffs filed a motion for summary judgment which was granted by the trial court. From this judgment, the defendants have appealed.

An examination of the record discloses the following facts. On June 30, 1967, Frederick J. Gisevius, Jr. and Harry A. Dawson purchased a tract of land in East Baton Rouge Parish, Frederick J. Gisevius, Jr. sold his interest in the property to Cal-joan Inc. on January 2, 1968. During the year 1968, the defendants, Caljoan Inc. and Harry Dawson, obtained a building permit for the construction of an air conditioning supply house on this property. The improvements resulting from this construction were assessed at $12,000.00 by the Assessor of East Baton Rouge Parish.

When the value of these improvements was added to the tax rolls, an error occurred which resulted in the improvements being charged to the assessment on the plaintiffs’ property.

The defendants were not assessed for the improvements, nor did they pay taxes on the improvements during 1969 through 1972. Plaintiffs.paid this erroneous assessment from 1969 through 1972. Thereafter the error was brought to the Assessor’s attention and corrected.

Plaintiffs brought this suit to recover the taxes they erroneously paid, claiming that the defendants had been unjustly enriched.

On this appeal, the defendants have urged seven specifications of error. These fall into three general categories: error relating to the defendants’ exception of improper venue, error in allowing this action to proceed under the theory of unjust enrichment, and error in granting the motion for summary judgment.

I

The defendants contend that the trial court erred in overruling their exception of improper venue.

We pretermit the question of whether venue was proper ah initio since any objections to venue were waived by the failure of the defendants to raise them through a properly filed declinatory exception.

A declinatory exception of improper venue is waived unless pleaded before filing an answer or making a general appearance. LSA-C.C.P. articles 44 and 925. In the instant case, the filing of the peremptory exceptions of prescription, no right of action, and no cause of action in the same pleading with the declinatory exception of improper venue constituted a general appearance which waived the decli-natory exception. Polmer v. Spencer, 256 So.2d 766 (La.App. 1st Cir. 1971).

We find no merit in defendants’ contention that the “express reservation” of rights regarding the issue of venue prevented the declinatory exception from being waived.

Under LSA-C.C.P. art. 925, all objections which may be raised through the declinatory exception, except the court’s lack of jurisdiction over the subject matter, are waived when a defendant makes an appearance. Therefore the only way to preserve an objection to venue is to plead it prior to an appearance. The last paragraph of LSA-C.C.P. art. 925 is clear and carries with it no “reservation of rights” language.

We agree with the trial court’s ruling that the defendants’ express reservation was ineffective to prevent the objection to venue from being waived by an appearance.

The defendants further contend that the right to object to venue was reacquired when the plaintiffs filed an amended petition on December 31,1975 adding additional plaintiffs since this amounted to the institution of a new suit.

We find that the amendment was properly allowed under LSA-C.C.P. art. 1151, and it related back to the date of the filing of the original petition. LSA-C.C.P. art. 1153. We find as did the trial court that the amendment did not amount to the institution of a new suit.

II

The defendants urge that this is an inappropriate case in which to apply the doctrine of unjust enrichment and that plaintiffs’ action has prescribed.

The trial court held that plaintiffs’ action was proper as an “actio de in rem verso" citing Edmonston v. A-Second Mortgage Co. of Slidell, Inc., 289 So.2d 116 (La.1974). We agree.

The actio de in rem verso is a resti-tutionary remedy founded upon principles of unjust enrichment as embodied in the moral maxim contained in Civil Code Article 1965 “that no one ought to enrich himself at the expense of another.” Five limitations have been applied to the actio de in rem verso and each must be satisfied before the remedy becomes available. These limitations, as set forth in Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967), are: an enrichment, an impoverishment, a causal connection between the enrichment and the impoverishment, no justification or legal cause for the enrichment/impoverishment, and no other available remedy at law.

In the instant case, we find that the defendants were, in fact, relieved of the payment of a portion of the property tax chargeable to their property and thereby enriched to that extent while, at the same time, the plaintiffs were impoverished by the payment of said tax. The causal connecting factor in this case was the mistake in the assessor’s office, but this mistake can in no way be considered as a legal justification for the enrichment.

The fifth limitation is designed to prevent a plaintiff from resorting to the equitable remedy de in rem verso when another remedy, expressly provided by law, is available against the defendant. The issue is whether or not these plaintiffs had an available remedy at law against these particular defendants. The trial court answered in the negative and we agree.

We find that the five limitations applicable to the actio de in rem verso as stated in Minyard are satisfied in the instant case.

Additionally, we note that plaintiffs’ action is proper as one based on quasi contract under LSA-C.C. art. 2302. This article states:

Art. 2302.
“He who has paid through mistake, believing himself a debtor, may reclaim what he has paid.”

Though we have not found any case which specifically states that this restitution may be claimed from the true debt- or, we believe that the action allowed by this article will lie against either the creditor or the true debtor. We are supported in this view by the general principles of unjustified enrichment stated in LSA-C.C. art. 1965.

The prescriptive period applicable to both the action for unjust enrichment (actio de in rem verso) and the action based on quasi contract is ten years. Minyard v. Curtis Products, Inc., supra; LSA-C.C. art. 3544.

Accordingly, the trial court was correct in overruling the defendants’ exceptions of prescription, no right of action, and no cause of action.

Ill

The final category assigned by the defendants as error deals with the granting of the plaintiffs’ motion for summary judgment.

The defendants contend that the trial court erred in refusing to consider the affidavits offered in opposition to the motion for summary judgment, and in granting the motion for summary judgment since numerous issues of fact remained unresolved.

Affidavits in opposition to a motion for summary judgment are governed by LSA-C.C.P. articles 966 and 967. Under article 966, an adverse party may serve opposing affidavits prior to the date of the hearing on the motion for summary judgment. The time limitation established by this article is mandatory so that affidavits not timely filed are inadmissible and properly excluded.

In the instant case, opposing affidavits which were not offered until the morning of the hearing were properly excluded from evidence. LSA-C.C.P. art. 966.

As to the appropriateness of the summary judgment procedure, an examination of the record reveals that the motion was properly granted.

When a motion for summary judgment is filed and supported by affidavits, the adverse party can not rely on the mere allegations or denials of his pleadings but he must present proof, by affidavits, setting forth facts showing that a genuine issue of fact exists for trial. Continental Casualty Co. v. McClure, 313 So.2d 260 (La.App. 4th Cir. 1975).

The absence of opposing affidavits does not insure that the motion will be granted if the requirements of LSA-C.C.P. art. 966 are not satisfied. Louisiana Materials Co., Inc. v. Turcich, 256 So.2d 719 (La.App. 4th Cir. 1972). However if the summary judgment is appropriate, it shall be rendered. LSA-C.C.P. art. 967.

We must determine whether summary judgment was appropriate, since the defendants need not file affidavits unless the moving party has established both that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Continental Casualty Co. v. McClure, supra.

The summary judgment procedure is designed to avoid the delays and expenses of a trial on the merits when no genuine issue exists as to material fact and the moving party is entitled to judgment as a matter of law. LSA-C.C.P. art. 966. The burden is on the mover to show that there is no dispute regarding facts material to the suit. And since the motion for summary judgment is not a substitute for a trial on the merits, any doubt regarding the existence of genuine issues of material fact should be resolved in favor of trial on the merits. Roy & Roy v. Riddle, 187 So.2d 492 (La.App. 3rd Cir. 1966).

We find, as did the trial court, that the uncontroverted evidence in the record establishes that the plaintiffs paid property taxes for the years 1969 through 1972, amounting to $2,673.60, on property owned by the defendants because of an error in tax assessment. The evidence further establishes that the tax should have been charged to the defendants, but that they were not assessed and did not pay the taxes.

The trial court concluded that this evidence negated the existence of a genuine issue of fact. When the evidence submitted on the motion leaves no relevant, genuine issue of fact, and when reasonable minds must inevitably conclude that the mover is entitled to judgment on the facts before the court, the motion for summary judgment should be granted. Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976).

We find no merit in any of the defendants’ specifications of error.

Accordingly, the trial court properly granted plaintiffs’ motion for summary judgment.

For the reasons assigned the judgment of the trial court is affirmed at appellants’ cost.

AFFIRMED.

      . We note that plaintiffs had a legal right to seek reimbursement from the taxing authority for the taxes paid pursuant to the erroneous assessment. This right had prescribed prior to the institution of the present suit. Accordingly plaintiffs only means of recovering the erroneous tax payments was through an action for unjust enrichment against these defendants.

      . The unreported case of Manion v. Manion & Co., App.1917, Orleans No. 7130, is cited in Tessier’s Digest, Court of Appeal Orleans, October 15, 1917 to July 31, 1922, for the proposition that a person who believing it is his own debt, pays the debt of another, has an action against the latter for restitution.


author: EDWARDS, Judge. COLE, Judge,

text:
    George W. MILLER, Jr. v. Thomas L. CARTER et al.
    No. 11246.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.
    Rehearing Denied June 13, 1977.

      George W. Weber, New Orleans, for plaintiff-appellant.
    France W. Watts, III, Franklinton, for defendants-appellees.
    Before LANDRY, EDWARDS and COLE, JJ.
   EDWARDS, Judge.

This suit arose out of a rear-end collision on the Lake Pontchartrain Causeway Bridge. After trial on the merits, the trial court found that the plaintiff was contribu-torily negligent and dismissed his suit. From this judgment, plaintiff has appealed. We affirm.

At the time of the accident, plaintiff, George W. Miller, Jr., was a practicing attorney who lived in St. Tammany Parish and commuted daily across the Causeway to his office in New Orleans.

The Causeway consists of twin, parallel, two-lane bridges, approximately twenty-four miles long. On one bridge traffic flows north; on the other traffic flows south. Neither bridge has a pull-over, or shoulder-type lane. There are seven “crossover” connections between the two bridges which can be used for turn arounds, emergency stopping or repairs. Additionally there are several rises or humps in the bridge to facilitate boat traffic under the bridge.

The accident occurred on December 26, 1972, between 8 a.m. and 9 a.m. while Mr. Miller was traveling south. The weather was clear and the roadway was dry. Visibility was described as excellent.

As Miller passed cross-over No. 7, approximately three and one-half (3V2) miles from the south terminus of the bridge, he observed a car parked in the cross-over with the trunk lid open and a man standing at the rear of the car looking north at the on-coming southbound traffic. Miller stated that he could not see what, if anything, was wrong with the car and that he did not see the man make any indication that assistance was needed.

Nevertheless, Miller decided to render aid to the unknown man and brought his vehicle to a stop about 200 yards past the crossover, activated his emergency flashing lights, checked his rear view mirror, and proceeded to back his vehicle toward the cross-over using the extreme right side of the right lane of traffic. There is a rise about one half of a mile north of the point where Miller stopped which restricted the view of approaching traffic. When he observed traffic coming over the rise, Miller stopped his vehicle, and three or four cars passed him using the left lane without incident. Thereafter, Miller again backed his car toward the cross-over until he noticed another car (belonging to Radcliff Materials, Inc. and driven by its employee Thomas L. Carter) coming over the rise in the right-hand lane. Miller again stopped believing that this car would pass in the left lane. Instead, the Carter car continued in the right lane until it collided with the rear of the Miller car. Carter was driving the company car with the permission of, and in the course of his employment with, Radcliff.

This suit was brought by Miller to collect damages for personal injuries, lost wages and property damage against the driver, Carter; his employer, Radcliff; and its insurer, Travelers Insurance Company.

The trial court found that Carter was negligent, but that any claim against him was barred by Miller’s contributory negligence.

Two issues are presented on appeal: (1) the contributory negligence vel non of Miller and (2) the applicability of the doctrine of last clear chance.

It is strenuously argued that Miller was not negligent in stopping on the traveled portion of the Causeway since his conduct was in technical compliance with LSA-R.S. 32:141. This contention ignores the fact that criminal statutes are not, in and of themselves, definitive of civil liability, though they may form guidelines for the Court in fixing civil liability. Pierre v. Allstate Insurance Company, 257 La. 471, 242 So.2d 821 (1971).

“The duty to refrain from parking on a highway is imposed as a safety measure in order to keep traffic arteries open. The obstruction of highways not only impedes passage, but also creates a risk that a confused or inattentive driver will collide with the stationary vehicle. The risk of harm created by a motorist’s obstructing a highway imposes a reciprocal duty on motorists to refrain from doing so.” Haas v. Southern Farm Bureau Casualty Insurance Company, 321 So.2d 380 (La.App. 4th Cir. 1975); writ refused La., 323 So.2d 133.

In the instant case, the evidence establishes that Miller passed six or seven signs, reading “no stopping except for repairs,” along the Causeway on the morning of the accident. Additionally it was shown that the southern end of the bridge was clearly visible to him when he decided to aid the stopped motorist. Miller testified that he could not see if there was anything wrong with the car in the cross-over and that the unknown man gave no indication of needing assistance. The trial court concluded, based on these facts coupled with Miller’s familiarity with the Causeway, that Miller was negligent, once having passed the cross-over, in stopping and backing up on the bridge, when he could have safely sought aid for the motorist at the south end of the bridge, 3V2 miles away. We find that there is ample evidence in the record to support this conclusion. Canter v. Koehring Company, 283 So.2d 716 (La. 1973).

It is further contended that Miller’s negligence should not bar his recovery since he occupied the status of a rescuer.

The jurisprudence is clear that a rescuer is not barred by his contributory negligence from recovering for his injuries. Chastain v. Allstate Insurance Co., 212 So.2d 243 (La.App. 2nd Cir. 1968). However the rescuer is only excused from such oversights or imprudences as the situation requiring rescue might reasonably have caused. Hebert v. Perkins, 260 So.2d 15 (La.App. 4th Cir. 1972).

We are reluctant to find that Miller occupied the status of a rescuer in the instant case, since there were no circumstances indicating that immediate aid was needed. The facts of this case distinguish it from Chastain and other cases applying the rescuer doctrine since in the latter cases the existence of an emergency situation was apparent.

Regardless of whether or not we classify Miller as a rescuer, we are of the opinion that his negligence was not excused since it was not caused by the situation requiring rescue. Hebert v. Perkins, supra. The record is clear that the situation encountered by Mr. Miller presented no facts requiring immediacy of action. In fact, as previously stated, Miller was ignorant of whether or not his aid was needed at all. Accordingly, we believe that the rescuer doctrine does not, under these facts, provide Miller with relief from his contributory negligence.

It is also contended that Miller’s negligence was merely passive in nature and therefore should not bar his recovery.

It is apparent that Miller’s actions constituted a cause-in-fact of the accident, since had he not stopped on the bridge the accident would not have occurred. Additionally, though Carter was also negligent, the hazardous condition created by Miller’s negligence continued to the moment of the accident, and the concurrent substandard behavior of both parties combined to bring about the collision. Therefore, we find that Miller’s concurrent negligence was a cause in fact of the accident.

The second issue presented concerns the doctrine of last clear chance. The circumstances necessary for the application of the doctrine are set forth in Price v. Watts, 215 So.2d 187, 189 (La.App. 3rd Cir. 1968), as follows:

“Under this doctrine, a defendant motorist is liable for injury to a plaintiff, despite any contributory negligence on the latter’s part, if an accident occurs when (1) the plaintiff was previously in a position of peril, of which he was either apparently unaware or else from which he could not extricate himself, (2) the defendant discovered, or could reasonably have observed, the plaintiff’s danger and (3) thereafter, could have reasonably avoided the accident. See Belshe v. Gant, 235 La. 17, 102 So.2d 477; Jackson v. Cook, 189 La. 860, 181 So. 195; Rottman v. Beverly, 183 La. 947, 165 So. 153; Venero v. State Farm Mutual Auto Ins. Co., La.App. 3rd Cir., 196 So.2d 841.”

The applicability of the doctrine is a question of fact and each case must turn upon its own facts. The plaintiff urges application of the doctrine to escape the harsh effects of his contributory negligence, and therefore must prove facts sufficient to avail himself of the beneficial effects of this doctrine.

The trial judge after an evaluation of all the facts decided against the plaintiff. There is ample evidence in the record to support this finding, and we therefore have no basis for reversal. Canter v. Koehring Company, supra.

It would appear that the first element of the doctrine is lacking in the present case. The record is clear that Miller was a seasoned traveler on the Causeway Bridge, having commuted daily to and from his office in New Orleans. It is inconceivable that such a person could be unaware of the peril in which he was placing himself by stopping and backing-up on the bridge. Further, we find that Miller could have easily extricated himself from this danger by continuing on the bridge to the south toll plaza, only 3V2 miles away, and there requesting assistance for the motorist in cross-over No. 7. Therefore the doctrine of last clear chance is inapplicable in the instant case.

While we are reluctant to penalize the good intentions exhibited by Miller, we feel that his conduct was such as to render him contributorily negligent in the automobile accident.

Therefore, for the reasons assigned, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.

COLE, Judge,

respectfully dissenting.

The doctrine of last clear chance is clearly applicable. The danger or peril in which plaintiff found himself arose only when the elements of time, speed and distance combined to render it impossible for the defendant driver to change lanes and thereby safely pass plaintiff’s stopped vehicle. At that moment, plaintiff had no opportunity whatever to extricate himself from the peril.

      . LSA-R.S. 32:141 provides in pertinent part:
      A. “Upon any highway outside of a business or residence district, no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of the highway when it is practicable to stop, park or so leave such vehicle off such part of said highway, but in every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicles shall be available from a distance of two hundred feet in each direction upon such highway . .


text:
    Lester N. STRANGE v. COMMERCIAL INSURANCE COMPANY OF NEWARK, N. J.
    No. 11249.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.
    Rehearing Denied June 13, 1977.
    Donald G. Cave, Baton Rouge, of counsel, for plaintiff-appellant Lester N. Strange.
    Peter T. Dazzio, Baton Rouge, of counsel,, for defendant-appellee Commercial Ins. Co. of Newark, N. J.
    Before LANDRY, EDWARDS and COLE, JJ.
   EDWARDS, Judge.

This is a suit for workmen’s compensation. The trial court sustained defendant’s peremptory exception of prescription and plaintiff has appealed.

Lester N. Strange filed suit on February 2,1976, alleging that he suffered a compen-sable injury to his left elbow on September 30,1974, while working for J.E. Wiese, Inc., at a job site at the Exxon plant in Baton Rouge. The defendant, Commercial Insur-anee Company of Newark, N.J. (Commercial), is alleged to be the compensation insurance carrier of Wiese, Inc.

Commercial filed a peremptory exception claiming that the limitation period of one year had elapsed since the injury, and therefore the plaintiff’s suit was barred. Before this exception was heard, plaintiff filed, with leave of court, a supplemental and amending petition alleging that the disability resulting from the injury did not occur until after December 17, 1975, the date on which surgery was performed on his elbow.

The trial court in sustaining the peremptory exception ruled that the one year period commenced to run on the date of the accident, since the injury was manifested to plaintiff as of that date, and that this period had expired previous to the institution of the present site.

The only issue presented for review is, whether or not the plaintiff’s action is barred.

The applicable period of limitation for a suit to recover workmen’s compensation benefits is contained in LSA-R.S. 23:1209. There it is stated:

“In case of personal injury (including death resulting therefrom) all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter or unless within one year after the accident proceedings have been begun as provided in Parts III and IV of this Chapter
“Also, where the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until the expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident . . .”

In the instant case, suit was not instituted within the one year period following the accident, nor were any workmen’s compensation benefits paid to the plaintiff because of the injury. Therefore this suit is barred under LSA-R.S. 23:1209 unless the plaintiff’s injury is covered by the proviso last stated above.

Commercial contends that the proviso is inapplicable since the plaintiff alleged in his petition that the injury has constantly bothered him since the accident. Commercial maintains that this admission establishes that the injury developed at the time of the accident.

Were it not for plaintiff’s amending petition, we would agree with Commercial’s position. However, the amending petition, properly filed with leave of court under LSA-C.C.P. art. 1151 and not attacked by defendant through a motion to strike or otherwise, alleges that the disability did not result immediately after the accident, but rather occurred only after the plaintiff underwent surgery for the injury on December 17, 1975. The amending petition also states that plaintiff continued to work between the date of the accident and the date of the surgery, thereby refuting disability during this period.

“Compensation benefits are, as a matter of necessity, proximate to disability. Where accident or injury and disability are not simultaneous, it is the onset of disability which is the compensable event and which commences the running of the relevant prescriptive period, subject of course to the limitations imposed by LSA-R.S. 23:1209 . . .”

Kaupp v. City of New Orleans, 248 So.2d 99 (La.App. 4th Cir. 1971).

Additionally, in Hobley v. Phoenix of Hartford Insurance Company, 233 So.2d 589 (La.App. 4th Cir. 1970), it was noted:

“The issue is not new to our jurisprudence. From the guidelines announced by the Supreme Court in the cases of Mottet v. Libbey-Owens-Ford Glass Co., 220 La. 653, 657, 57 So.2d 218, 219 (1952), and Wallace v. Remington Rand, Inc., 229 La. 651, 86 So.2d 522 (1956), has evolved the jurisprudential rule that ‘development of injury’ means the time from which the employee can no longer pursue his trade and occupation. This does not mean merely occurrence of an incident and pain, but the time when it is manifest to the employee or his employer that he is unable to perform substantially the duties of employment.” (citations omitted).

We find that the allegations contained in plaintiff’s “Supplemental and Amending Petition,” if proved would render his claim timely filed. However, we are unable to make a definite determination on this point based on the present posture of the record. Therefore we will remand this matter to the trial court in order that evidence might be taken on the question of when the injury and resulting disability, if any, did, in fact, develop. This evidence can be taken either at a hearing on the exception of prescription or at trial, if the exception is referred to the merits.

For the foregoing reasons, the judgment of the trial court maintaining the exception of prescription is reversed, and the case is remanded to the trial court for further proceedings consistent with the views herein expressed.

All costs of this appeal to be borne by the defendant-appellee; all other costs to await the final disposition of the case.

REVERSED AND REMANDED.


text:
    BOB BURKE, INC., et al. v. Monroe N. FLENIKEN et ux.
    No. 11276.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.
    Rehearing Denied June 13, 1977.
    Michael A. Patterson, Baton Rouge, of counsel for plaintiffs-appellants Bob Burke, Inc., et al.
    Robert L. Roland, Baton Rouge, of counsel for defendants-appellees Monroe N. Fleniken, et ux.
    Before LANDRY, EDWARDS and COLE, JJ.
   EDWARDS, Judge.

This is a suit, brought by Bob Burke, Inc., and LaFleur and Fontenot, Inc., to collect a real estate commission from the defendants, Monroe N. Fleniken and Marion Browning Fleniken. Plaintiffs have appealed a final judgment in favor of the defendants.

Mr. and Mrs. Fleniken owned two tracts of land in East Baton Rouge Parish which they desired to sell. On January 29, 1972, they entered into a ninety (90) day exclusive real estate listing agreement with plaintiff, LaFleur and Fontenot, Inc., for the sale of the smaller of the two tracts. This agreement was subsequently extended by the Flenikens. On March 21, 1972, they also entered into a ninety (90) day exclusive listing agreement with plaintiff, Bob Burke, Inc., for the sale of the larger tract.

Through the plaintiffs’ joint efforts, Charles C. Cloy entered into two separate option agreements for the purchase of the two tracts of land on July 10, 1972. Each option specifically provided for the payment by the vendor of a ten percent (10%) real estate commission. LaFleur and Fontenot, Inc., was to receive the whole commission on the smaller tract, but was to share jointly with Bob Burke, Inc., the commission on the larger tract.

On July 10, 1973, Louis E. Doherty, Jr., purchased the options on the Flenikens’ property from Mr. Cloy. It is conceded that this transfer was obtained through the efforts of the plaintiffs. At that time, the options had been extended through December 10, 1973.

Shortly before the options were due to expire, Mr. Doherty informed plaintiffs that it would be necessary to obtain another extension on the two options. Mr. LaFleur contacted the Flenikens about obtaining the extension, but was unsuccessful in persuading them to grant it. The options expired on December 10, 1973 by their own terms when they were not exercised by Mr. Do-herty.

Though the Flenikens had refused Mr. LaFleur’s request for an extension, they granted a new option covering both tracts of land to Mr. Doherty four (4) days after the original options expired. This new option, dated December 14, 1973, was negotiated directly between the Flenikens and Mr. Doherty without the participation of the plaintiffs. It provided for the sale of the same properties between the same parties and at the same aggregate price, except that the obligation for any real estate commission which might be due was shifted to the purchaser.

On February 13, 1974, Mr. Doherty exercised this new option and subsequently advised the Flenikens that March 11,1974 was to be the date of the sale. It is conceded that Mr. Doherty was ready, willing and able to purchase the property; however the Flenikens refused to appear at the place and time to pass the sale and advised Do-herty that they would not execute the sale. As a result, the property was never sold to Mr. Doherty.

The Flenikens ultimately sold the property to another purchaser who, it is conceded, was not attracted to the property through the efforts of the plaintiffs. A six percent (6%) real estate commission was paid to another relator in connection with that sale.

The Trial Judge states the following in his written reasons for judgment:

“The single question presented by this case is whether plaintiffs are entitled to a real estate commission.
“The jurisprudence is clear that a real estate broker whose efforts are the ‘procuring cause’ of a sale is entitled to be paid his commission even though the sale is not consummated until after the expiration of the contract of the agency. Womack Agencies v. Fisher, 86 So.2d 732 (La.App. 1st Cir. 1956). And ‘procuring cause’, as defined in 12 C.J.S. Brokers § 91 and cited in Gement v. Doby, 246 So.2d 253 (La.App. 1st Cir. 1971), is said to refer to a cause originating or setting in motion a series of events which, without break in their continuity, result in the accomplishment of the prime object of the employment of the broker, which may variously be a sale or exchange of the principal’s property an ultimate agree-merit between the principal and a prospective contracting party, or the procurement of a purchaser who is ready willing and able to buy on the (sic) vendor’s terms.
“However, it is the opinion of this Court that on the basis of the facts presented, plaintiffs were not the procuring cause of any resulting transaction between defendants and Mr. Doherty
“Though the plaintiff real estate agents made efforts to have the defendants renew the earlier option in favor of Mr. Doherty they were unable to do so. It was at this point that a break in the continuity of the chain of events toward a sale of the property as set in motion by the plaintiffs, occurred .
“It may be argued that the fact it was only four days later when the defendants granted a similar option to Mr. Doherty on the same property would indicate that the defendants granted the new option in order to avoid the payment of any real estate commission. The Court is of the opinion that this was not the motive of the defendants .
“Therefore, it is the opinion of this Court that defendants were not acting in defraud of any rights of the plaintiffs when they refused to extend the old option and later granted a new one. The fact that Mr. Doherty was later ready, willing and able to exercise this new option is of no consequence to the plaintiffs since they had played no part in the procuring of it . . . ”

Plaintiffs contend that the trial court erred in finding that there was a break in the chain of events ultimately leading to a purchaser ready, willing and able to buy the Flenikens’ property.

Our examination of the record and the applicable law reveals that plaintiffs’ contention is well founded.

Admittedly, Mr. Doherty was introduced to the property and induced to purchase the Cloy options through plaintiffs’ efforts. Mr. Doherty did not thereafter abandon his interest in the property; on the contrary when he realized that he would be unable to exercise the options, he sought, through the plaintiffs, an extension on the options. The fact that the Flenikens refused to grant an extension, but instead gave Mr. Doherty a new option substantially the same as the original options, does not destroy the causal connection, i. e. continuity, between plaintiffs’ efforts and the contemplated sale to Doherty.

We find that though negotiations were temporarily discontinued when the original options were not extended, the prior efforts of the plaintiffs remained as the “procuring cause” of the subsequent option granted on December 14, 1973.

Having determined the plaintiffs were the procuring cause of the December 14 option, we must then consider whether or not a real estate commission is due.

Though a sale is not consummated, a real estate agent may collect a commission when he has procured a purchaser ready, willing and able to buy on the vendor’s terms and the sale is prevented because of the vendor’s fault or inability to furnish title. Mathews Bros. v. Bernius, 169 La. 1069, 126 So. 556 (1930); Olympic Homes, Inc. v. Ory, 207 So.2d 258 (La.App. 1st Cir. 1968).

The Flenikens concede that on March 11, 1974, Doherty was ready, willing and able to execute the sale and accept title to the property. Further, they concede that they did not appear for the sale and that they advised Doherty that they would not execute the sale.

These facts clearly indicate that plaintiffs are entitled to their commission as provided in the original options.

For the reasons assigned, the judgment of the trial court is reversed and set aside and judgment is rendered in favor of LaFleur and Fontenot, Inc. and against the defendants, Monroe N. Fleniken and Marion Browning Fleniken, in the full sum of Three Thousand Seven Hundred Fifty and No/100 ($3,750.00) Dollars, together with legal interest from date of judicial demand until paid; and judgment is also rendered in favor of LaFleur and Fontenot, Inc. and Bob Burke, Inc., jointly against the defendants, Monroe N. Fleniken and Marion Browning Fleniken, in the full sum of Thirteen Thousand Seven Hundred Fifty and No/100 ($13,750.00) Dollars together with legal interest from date of judicial demand until paid. All costs are to be borne by the defendants.

REVERSED AND RENDERED.


text:
    Donald E. JACKSON v. Mark J. DAVIS and Allstate Insurance Company.
    No. 11425.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.
    Rehearing Denied June 13, 1977.
    Walton J. Barnes, Baton Rouge, for plaintiff and defendant in reconvention, Donald E. Jackson, appellant.
    Daniel R. Atkinson, Baton Rouge, for defendant Mark J. Davis and Allstate Insurance Co., appellee.
    Before LANDRY, EDWARDS and COLE, JJ.
   EDWARDS, Judge.

This is a suit for damages arising out of a car-bus collision. The trial court granted judgment in favor of the defendants and dismissed the suit. Thereafter plaintiff, Donald Jackson, was granted a devolutive appeal returnable on October 13, 1976, conditioned on his furnishing bond in the amount of $250.00. On February 25, 1977, this Court, ex proprio motu, ordered the parties to show cause why the appeal should not be dismissed for failure to file the appeal bond timely.

The record indicates that judgment was signed on May 17, 1976 and that notice thereof was mailed to counsel on the same day. No motion for a new trial was made, therefore the applicable delay expired on May 26, 1976 and the delay for perfecting the devolutive appeal expired on August 24, 1976 (LSA-C.C.P. art. 2087) without plaintiff having filed his appeal bond. An appeal bond was filed on August 26, 1976.

In his brief, plaintiff contends that C.C.P. art. 1913, requiring that notice of judgment be sent to the parties, has not been satisfied since nothing is in the record to certify that notice was sent; therefore the appeal period has not begun to run and has not expired.

Plaintiff relies on Federal National Mortgage Association v. Roberts, 317 So.2d 244 (La.App. 4th Cir. 1975) to support this contention.

In the Federal National case, it was held that a typewritten notation at the end of the judgment indicating that the judgment was to be served on all parties and followed by a handwritten notation giving the date and showing “cc” and the names of the various parties to be served was insufficient to satisfy the requirement that a certificate of notice be filed in the record.

We find that the above cited case is clearly distinguishable from the facts of the present case. The notation in the former case does not even purport to be a certificate.

In the instant case, the following is stamped at the bottom of the judgment:

“I hereby certify that on this day a notice of the above judgment was mailed by me, with sufficient postage affixed, to:_
Done and signed on_
Deputy Clerk of Court (emphasis supplied)

The names of the attorneys of record, the date (May 17,1976) and the signature of the clerk are handwritten in the appropriate spaces.

We hold that this “certificate” is sufficient to satisfy the requirement expressed in C.C.P. art. 1913.

Accordingly this court is without jurisdiction to hear the appeal since no Appeal Bond was timely filed. (LSA-C.C.P. art. 2088). The appeal is dismissed at appellant’s cost.

APPEAL DISMISSED.

      . Plaintiff points out that the bond is marked by a stamp indicating that it was filed August 25, 1976, but that the date was altered to show filing on August 26, 1976. We do not reach this moot issue since the last day to timely file the appeal bond was August 24, 1976.


author: COLE, Judge.

text:
    Nina M. BROWN v. L. H. H. R. A., Lake Charles Mental Health Center.
    No. 11179.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.
    Rehearing Denied June 13, 1977.

      Thomas E. Foley, Lake Charles, Michael O. Hesse, Baton Rouge, for appellant Nina M. Brown.
    Robert L. Raborn, Baton Rouge, for ap-pellee.
    Before LANDRY, EDWARDS and COLE, JJ.
   COLE, Judge.

This is an appeal of a ruling by the Louisiana Civil Service Commission upholding the discharge of appellant, Nina M. Brown, by the Louisiana Health and Human Resources Administration, Division of Mental Health. We reverse.

The appellant began work at the Lake Charles Mental Health Center in July, 1974, as an Occupational Therapist I. On Sunday, September 28, 1975, she went to the Calcasieu Parish Jail to visit her son. After visiting her son, she joined her daughter-in-law who was outside of the jail passing out pamphlets written by Ms. Brown critical of the Sheriff’s Department. Ms. Brown was arrested at this time.

When allowed to make a phone call, since it was Sunday, Ms. Brown decided it was most advisable to call a bondsman to obtain her release. However, the bondsman never came. She was held in the parish jail until Monday, September 29, at approximately 12:00 o’clock noon, when she was taken out and shown the warrants charging her with resisting arrest, criminal mischief and inciting a riot. She was then transferred to the women’s jail.

On Wednesday, October 1, when she was taken to her arraignment, she passed a note to her daughter-in-law asking that she call the Administrator of the Center, Nolan Landry, to ask for an “indefinite leave of absence” for reasons beyond her control. She also testified that she asked her attorney at the arraignment to call Mr. Landry to inform him of her whereabouts. However, her attorney did not call. According to the appellant (and it is uncontradicted by the appointing authority), during this entire period she was held in jail without bond and not allowed to communicate with anyone.

The appellant’s daughter-in-law, Delores Peters, contacted the Center pursuant to the appellant’s instructions in the note passed on Wednesday, October 1. Upon calling the Center and informing them of appellant’s request for leave, she was informed that there was “no such thing.” However, the possibility existed that the appellant might have qualified for either annual leave [Civil Service Rule 11.7] or leave without pay [Civil Service Rule 11.-27(A)], either of which may be granted without written request, contrary to the contentions of the appointing authority. Ms. Peters was not in a position to give any additional information to the Center about the appellant’s condition or circumstances beyond what was contained in the note, because the appellant had not been allowed any additional communication.

On Thursday, October 9, at approximately 12:45 P.M., the appellant was able to obtain her release with the assistance of counsel and bondsmen from Lafayette. After her release, she spent the remainder of the day conferring with her attorneys about her future course of action.

On Friday, October 10, the appellant sent a note to the Center by way of her daughter-in-law. According to Mr. Landry, who received the note, it said in effect: “Will you please give Delores, my daughter-in-law, my check. I am at the doctor’s. I will talk to you Monday if I am better. I have been in jail where I wasn’t allowed to communicate with anyone in a situation beyond my control.” (Record, p. 78) The appellant testified that after approximately two weeks in jail, she was very upset and nervous and did, in fact, visit the doctor on Friday, October 10.

On Monday, October 13, at approximately 8:10 A.M., the appellant came to the Center. She went to see Mr. Landry, who immediately informed her that “she had been terminated.” Mr. Landry did not ask for an explanation of the appellant’s actions or whereabouts during her absence, nor did he listen to any attempted explanation. Apparently, a dispute then arose concerning having witnesses to their conversation, and Mr. Landry terminated the meeting.

Mr. Landry testified that he was told by an employee of the Center who received the call, that an unidentified female caller telephoned the Center on Monday, September 29, to report that Ms. Brown would not be in because of illness. On September 30 Mr. Landry learned of the appellant’s actual whereabouts on the 6:00 P.M. news on a local television station and of the charges against her. He also saw a subsequent newspaper article describing the events leading to her arrest. However, the article did not name the appellant.

There appears to be some dispute as to the time of and reasons for the dismissal. Mr. Landry testified that the reason for the dismissal was that the appellant failed to report to work. This reason, however, in light of the circumstances, is an over-simplification of the issue. It is clear to us from the record that Mr. Landry decided to fire the appellant on October 1st after learning of her arrest and drafted a dismissal letter dated the same day. Therefore, her subsequent actions had no bearing on Mr, Landry’s decision to dismiss her.

In the October 1st letter of dismissal the reasons stated were as follows:

“On September 29, 1975, you had a friend call the Center reporting that you were ill. On September 30 and October 1, 1975, you did not report to work or notify us of the reason that you were not coming to work. You abandoned your position according to Civil Service Definition 1.1.” (Record, p. 2)

Evidently doubting the validity of that letter of dismissal because of its late receipt by appellant, Mr. Landry sent another dismissal letter dated October 28, 1975, in which the reasons for dismissal were:

“On September 29, 1975, you had a friend call the Center reporting that you were ill. Rather than being ill you were in jail. On September 30 through October 10,1975 you did not report to work or notify us of the reason that you were not coming to work. You were not available to perform your duties.” (Record, p. 5)

The possibility that the appellant had authorized a call to the Center on September 29th reporting that she was sick in order to be placed on sick leave when she was not, in fact, ill, does not appear to be the reason for her dismissal. A person who intentionally attempts to receive pay when such pay is not due may, under certain circumstances, be guilty of conduct justifying dismissal. However, in the case in point, Ms. Brown testified that she never asked anyone to call the Center telling them she was ill, nor did she otherwise authorize such a call. To the contrary, she claims she was unable to communicate with anyone until she passed a note to her daughter-in-law on Wednesday requesting that she call Mr. Landry. Further, it is evident from Mr. Landry’s testimony that any attempt by the appellant to receive pay to which she was not entitled had no bearing on his decision to terminate her employment. The reason she was dismissed was that she did not report to work as a result of being arrested and in jail.

The appellant urges that the appointing authority’s action in dismissing her was racially discriminatory. Appellant’s counsel cites numerous federal cases arising under Title YII of the Civil Rights Act of 1964 for this proposition. The reasoning advanced by the appellant is that because more blacks than whites are arrested, an employer’s practice of dismissing those arrested has a racially-discriminatory effect upon blacks. In an action before the Louisiana Civil Service Commission based upon Louisiana law, the cases cited by the appellant do not control. Any references to the cases cited would be merely for purposes of persuasion. Any Title VII action which may be brought by the appellant is a distinct remedy from civil service appeals based upon state law, and is not applicable herein.

The burden of proving that the disciplinary action taken by the employer is discriminatory is upon the employee. Louisiana Constitution of 1974, Article 10, § 8(B). The record does not support the claim that the appointing authority discriminated against the appellant on the basis of her political or religious beliefs, sex or race within the meaning of Article 10, § 8(B).

However, it is clearly established that any disciplinary action taken against a classified employee must be based on cause. Article 10, § 8(A) provides:

“No person who has gained permanent status in the classified state or city service shall be subjected to disciplinary action except for cause expressed in writing. A classified employee subjected to such disciplinary action shall have the right of appeal to the appropriate commission. The burden of proof on appeal, as to the facts, shall be on the appointing authority.”

This Court has said recently in Hamlett v. Division of Mental Health, etc., 325 So.2d 696 (La.App. 1st Cir. 1976):

“ * * * Our Supreme Court has jur-isprudentially defined legal cause for disciplinary action against a classified employee as that conduct which impairs the efficiency of the public service, and which bears a real and substantial relation to efficient and orderly operation of the public service in which the employee is engaged. * * *” (325 So.2d at 700)

The burden of proof as to the facts indicating the cause for dismissal is on the appointing authority. Louisiana Constitution of 1974, Article 10, § 8(A); Michel v. Department of Public Safety, Alcoholic Beverage Control Board, 341 So.2d 1161 (La.App. 1st Cir. 1976).

Under Louisiana Constitution Article 10, § 12, the decisions of the Civil Service Commission are subject to review on appeal on questions of law or fact. The scope of review is essentially the same as that for appeals from decisions of district courts. Michel v. Department of Public Safety, Alcoholic Beverage Control Board, supra.

In the instant case, the decision by the appointing authority to dismiss the appellant was made, in effect, after two days’ absence from the job, with knowledge only that the appellant had been arrested. It is clear from the record that the appellant did not try to conceal her whereabouts or incarceration. It is also clear that the appellant made a reasonable effort under the circumstances to contact her employer. Furthermore, the appellant did not abandon her job within the meaning of Civil Service Rule 1.1 as alleged by the letter of dismissal, because her absence therefrom was involuntary.

As stated in Hamlett v. Division of Mental Health, supra, conduct justifying dismissal must impair the efficiency of the public service, and must bear a real and substantial relation to efficient and orderly operation of the public service. The mere arrest and incarceration of a classified employee is not per se legal cause for dismissal. It is necessary to consider the circumstances of the arrest and the needs of the employer to determine if sufficient cause for dismissal exists. Factors to be considered in relation to the impairment of job performance include, but are not limited to: the validity and ultimate disposition of the charges, the length or possible length of incarceration, and the degree of resulting notoriety.'

In the instant case, the appointing authority has not sustained its burden of proving legal cause exists to justify the dismissal of the appellant. The appointing authority determined to fire the appellant merely because of her arrest. With knowledge of the appellant’s arrest and incarceration, the appointing authority did not attempt to determine or consider the possible length of her absence or other circumstances surrounding the incident. Moreover, the appointing authority did not bear the burden of establishing that the appellant’s limited absence impaired its operations. It appears from the record that the Center maintained operations with only one occupational therapist for periods of extended absences by other therapists.

Therefore, for the foregoing reasons, it is ordered that the appellant be reinstated as of the date of dismissal, with all rights incident thereto, including accumulated salary.

REVERSED AND RENDERED.