author: PRICE, Judge. MARVIN, Judge,

text:
    Harrell LINDSEY, Plaintiff-Appellant, v. H. A. LOTT, INC., CONTRACTORS & ENGINEERS, Defendant-Appellee.
    No. 13848.
    Court of Appeal of Louisiana, Second Circuit.
    May 1, 1979.
    En Banc. Rehearing Denied June 8, 1979.
    Writ Granted July 3, 1979.
    Nelson, Hammons & Johnson by Sydney B. Nelson, Shreveport, for plaintiff-appellant.
    Mayer, Smith & Roberts by Caldwell Roberts, Shreveport, for defendant-appel-lee.
    Before BOLIN, PRICE and MARVIN, JJ.
   PRICE, Judge.

Harrell Lindsey has appealed the judgment rejecting his demands for benefits under the workmen’s compensation statute for a total and permanent disability alleged to have been caused by an injury suffered while in the employment with defendant, H. A. Lott, Inc., Contractors & Engineers.

We affirm.

Plaintiff filed this suit on September 19, 1974, alleging that while he was working as a carpenter for defendant in the construction of the First National Bank building in Shreveport he had an accident on September 20, 1973, with an electric drill which caused him to become totally and permanently disabled. The case was not tried until nearly five years after the alleged accident. It should be noted however that plaintiff was represented by other counsel prior to December 17, 1977, at which time his present counsel was enrolled and took proper steps to bring the long delayed matter to trial.

It is uncontested that plaintiff suffered an accidental injury to his right arm when the bit of the drill he was operating to cut holes in a plywood form hit a metal rod causing the drill to twist in his hand. The issue is whether plaintiff has shown the injury was of sufficient severity to have caused the later manifestations of a thoracic outlet syndrome and cervical disc disease to which he attributes his disability.

Plaintiff, who had been recently employed by defendant as a carpenter, informed defendant’s superintendent of the incident of a drill twisting in his hand on the date in question, but he did not contend he had hurt himself and kept on working. The following day, September 21, 1973, when plaintiff indicated he had some soreness in his arm, the superintendent sent him to the office of Dr. R. E. Rushing for examination. Dr. Rushing found the extent of the injury to be a tenderness of the muscles surrounding the right elbow and prescribed no treatment other than a recommendation for hot packs and aspirin if needed for pain. Plaintiff returned to work the same day and continued to work the remainder of the week without apparent complaint. His employment was terminated at the end of that same week because of his lack of skill in carpentry work according to the testimony of his foreman, L. E. Sherill.

Plaintiff did not seek further medical attention until approximately nine months later when he consulted Dr. Charles B. Itzig, a general surgeon, on July 15, 1974, with complaints of pain in his right arm and shoulder following use of these members.

Surgery to remove plaintiff’s first rib was performed by Dr. Itzig to correct his diagnosis of a thoracic outlet syndrome, a compression of major nerves leading from the thoracic region into the shoulder and arm. Plaintiff later consulted Dr. W. W. Fox, III, an orthopedic surgeon, for continued complaints of pain in the cervical region, and Dr. Fox surgically fused three discs in his cervical spine to correct a probable diagnosis of disc disease.

Plaintiff contends the incident which he experienced with the electric drill on September 20, 1973, caused the thoracic outlet syndrome and the cervical disc disease which have continuously disabled him from performing his trade as a carpenter since the date of the accident.

The trial judge in written reasons for judgment found plaintiff’s testimony, and that of his family members offered in corroboration, to be lacking in credibility. The trial judge summarized plaintiff’s evidence as follows:

During the course of this litigation, Mr. Lindsey has given various versions of the manner in which the accident occurred, has exaggerated the size of the electric drill which he was operating at the time of the accident and has contended that he has suffered constant pain from the time of the accident in 1973 up until the present and that he has been unable to do any work whatever since 1973. A review of all the evidence adduced during the course of this litigation convinces us that at the time’ of the accident, Mr. Lindsey was operating a small drill, rather than a large one as he described. (See testimony of Mr. Alton Tharp and Mr. L. E. Sherill.) Although this small drill did twist Mr. Lindsey’s arm, he never made any complaint to the initial treating physician of pain in his neck or chest. After Mr. Lindsey’s employment was terminated, and although he testified that he was in constant pain of great severity, he did not contact any physician until nine months after the minor injury which he suffered on September 20, 1973.
Upon contacting Dr. Charles Itzig, Dr. Itzig ultimately diagnosed Mr. Lindsey’s difficulty as thoracic outlet syndrome. Although Dr. Itzig thought that the accident of September 20, 1973, could have been the cause of the onset of thoracic outlet syndrome, the testimony shows that he based his conclusion upon plaintiff’s statement that he was injured while operating a large drill and that he had been in constant and severe pain from the time of the accident until he saw Dr. Itzig nine months thereafter.
At the time of the accident, plaintiff complained to Dr. Rushing only of pain in his right arm. There were no complaints of pain in the neck or chest. Considering the size of the drill being operated by plaintiff at the time of the accident and the lack of complaint of pain in the areas just mentioned, it is apparent that the trauma resulting from the accident was not of the kind to cause injury to the anterior scalene muscles sufficient to cause problems in the thoracic outlet. Also, the evidence has not shown such a trauma would cause the problems plaintiff later suffered with his neck.
Although plaintiff’s counsel has strenuously urged that Mr. Lindsey was one who did not like to consult physicians and was a man of limited education and therefore, may have been confused in his testimony, nevertheless, we conclude that Mr. Lindsey’s description of the manner in which the accident occurred and his testimony about the constant pain he suffered from the time of the accident for a full nine months before consulting a physician to be incredible.

Plaintiff makes two specific assignments of error relating to the above findings of the trial court:

1) That the court erred in concluding plaintiff complained to Dr. Rushing only of pain in his right arm.
2) That the court erred in concluding the trauma resulting from the accident was not of the kind to cause injury to the anterior scalene muscles sufficient to cause problems in the thoracic outlet.

We believe that a fair interpretation of the medical reports of Dr. Rushing which were introduced in lieu of his testimony reveal that the primary complaint of plaintiff was tenderness in his right arm. The report does indicate Dr. Rushing did make an examination of the shoulder which did not indicate any limitation of motion in the shoulder joint. We do not therefore find the trial court significantly misconstrued plaintiff’s complaints to Dr. Rushing.

The trial court did not see fit to believe the plaintiff’s version of the severity of the trauma received when the drill bit hit the metal rod. In view of the several contradictions in plaintiff’s trial testimony from his description of the incident in pre-trial depositions, the trial court was justified in according very little weight to his testimony. Dr. Itzig testified the stress necessary to cause a stretch of the brachial plexus would occur when the arm is suddenly twisted in an unusual position further than the nerves can tolerate. Dr. Fox testified that the probable causal relationship of the accident and plaintiffs thoracic outlet syndrome became more probable in proportion to the size and weight of the drill and bit being used. Although plaintiff contended he was using a very heavy drill, weighing from thirty to sixty pounds and a bit of % inch, the trial court concluded the drill weighed less than ten pounds and the bit had a diameter of Vz inch. This finding is supported by the testimony of the carpentry foreman, L. E. Sherill, who issued the drill to plaintiff. It should be noted that Sherill was no longer employed by defendant at the time of the trial of this matter.

After a review of all the evidence in the record, we cannot say that the trial court was clearly wrong in its conclusion that the trauma received was not sufficient to have caused the thoracic outlet syndrome or the cervical disc disease.

The Supreme Court recently reiterated the extent of appellate review in compensation cases in Crump v. Hartford Acc. & Indem. Co., 367 So.2d 300 (La.1979), as follows:

On appellate review, the trial court’s factual findings of work-connected disability are entitled to -great weight. They should not be disturbed where there is evidence before the trier of fact which, upon the latter’s reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s findings, unless clearly wrong. The reviewing court should not disturb reasonable evaluations of credibility and reasonable inferences of fact by the trial court, even though the reviewing court is of the opinion that other evaluations and inferences are as reasonable.

For the foregoing reasons, the judgment is affirmed.

MARVIN, J., dissents with written reasons.

MARVIN, Judge,

dissenting.

I respectfully dissent.

The occurrence of the accident was proved, the existence of disability was proved. The medical testimony, in the lower court’s opinion, established that the accident caused or could have caused the disability.

If the medical evidence shows a reasonable possibility of causal connection between the accident and the disabling condition, the disability of a claimant in a workmen’s compensation case is presumed to have resulted from the accident where the symptoms appear and continuously exist following the accident over whatever length of time it takes the ultimate disability to occur. See Lucas v. Ins. Co. of North America, 342 So.2d 591, 596 (La.1977), citing Gradney v. Vancouver Plywood Co., 299 So.2d 347 (La. 1974); Johnson v. Travelers Insurance Co., 284 So.2d 888 (La.1973); Bertrand v. Coal Operators Casualty Co., 253 La. 115, 221 So.2d 816 (1969).

Crump, cited by the majority, is not contrary. Crump says the appellate court should not disturb the trial court’s factual findings, based on credibility, “of work-connected disability.” Disability is admitted here and the trial court here did not find that plaintiff was not disabled. What the trial court found is simply, in so many words, paraphrased:

“This plaintiff suffered an accident, and later became disabled, but the disability in my opinion was not caused by the accident and must have been caused by something other than the accident.”

The trial court’s approach, and that of the majority affirming, is contrary to the law as I appreciate it:

Where symptoms appear after the accident and continuously worsen to result in disability, and the medical evidence shows the probable cause or reasonable possibility of the disabling conditions was the accident, the burden of proof is on the employer to show that the disability was caused by something other than the accident. See cases, supra.

It does not suffice for the trial court to say:

. . the trauma resulting from the accident was not the kind to cause the injury . [and] the problems plaintiff later suffered . . . ”

This is a finding unsupported by evidence and should not be allowed as a substitute for the burden imposed on an employer in such circumstances as are here presented. As this court so clearly stated in Stroud v. Tremont Lumber Company, 193 So.2d 86, 90 (La.App. 2d Cir. 1966):

“ ‘Counsel for appellant correctly contends that if the plaintiff was actually unable to work at the time of the trial because of a disability which was medically related to the initial accident, then in the absence of any evidence as to any other accident the court would be in error in ascribing the present disability to some unshown subsequent injury’.”

Richard v. Barber Bros. Company, 112 So.2d 168, 171 (La.App. 1st Cir. 1959) noted the rule of law we urge and added this comment:

“[T]he test of recovery in a compensation suit is not veracity but disability.”

Richard stated the rule of law in this fashion:

“[W]here a continued disability is proven which relates back to the initial accident during the employment, the burden is on the employer to prove that some other accident caused the disability and [is] not upon the employee to prove that no other accident occurred.” 112 So.2d at p. 170. See also, Johnson v. Calcasieu Paper Company, 95 So.2d 659, (La.App. 1st Cir. 1957).

I would reverse the trial court because (1) an accident is admitted; (2) symptoms from the accident appeared and gradually but continuously manifested themselves to ultimate disability (3) the cause of which was the accident, according to the trial court’s and the majority’s statement of the evidence.


source: Caselaw Access Project

author: MARVIN, Judge.

license: Public Domain

text:
    WASECO CHEMICAL & SUPPLY CO., Plaintiff-Appellee, v. BAYOU STATE OIL CORPORATION, Defendant-Appellant.
    No. 13849.
    Court of Appeal of Louisiana, Second Circuit.
    May 1, 1979.
    En Banc. Rehearing Denied June 8, 1979.

      Blanchard, Walker, O’Quin & Roberts by Marlin Risinger, Jr., Shreveport, for defendant-appellant.
    Egan & Cook by Reuben W. Egan, Shreveport, Milling, Benson, Woodard, Hil-Iyer, Pierson & Miller by C. E. Hall, New Orleans, for plaintiff-appellee.
    Before BOLIN, PRICE and MARVIN, JJ.
   MARVIN, Judge.

Bayou State, as defendant-lessee of an oil and gas lease, appeals from a judgment cancelling the lease for its failure to diligently develop the leased premises as a reasonably prudent operator. R.S. 31:122. Plaintiff answers the appeal, seeking to increase the awards made below for the fees of its experts and attorneys.

In excellently detailed written reasons for judgment, the trial court concluded that Bayou State had not diligently operated or developed the lease as a reasonably prudent operator for the mutual benefit of itself and its lessors and had not exhibited the type of “fairness” required by law in the lessor-lessee relationship.

In addition to the obvious issue as to the obligations of a reasonably prudent operator under the particular circumstances of this case, the issues include the problem of dissolution of the lease vs. allowing a time for performance by the lessee in default. Defendant contends that its lease should not be cancelled without allowing defendant an opportunity to perform the obligations which the lower court found were imposed on it as lessee. C.C. Arts. 2046, 2047.

THE LAW

In Vetter v. Morrow, 361 So.2d 898 (La.App. 2d Cir. 1978), we had occasion to state the primary consideration or cause of an oil and gas lease and the obligations imposed on the lessee as derived from R.S. 31:122 and from Carter v. Arkansas Louisiana Gas Co., 213 La. 1028, 36 So.2d 26 (1948). We said the primary cause or consideration of an oil and gas lease is the development of the minerals. Development in this sense is not only the exploration for, but the exploitation of, or the capture and marketing of, the minerals which may have been discovered by the fulfillment of the lessee’s obligation to explore. In Vetter, we said:

“A mineral lessee is under a duty to develop and operate the property leased as a reasonably prudent operator for the benefit of himself and his lessor. La.R.S. 31:122 . . .
“To fulfill his duty ... a lessee has the obligation to develop [explore, exploit, capture and market] known mineral producing formations in the manner of a reasonable, prudent operator
“In deciding whether development [exploration, exploitation, capturing and marketing] has been reasonable for the benefit of both the lessor and lessee, the jurisprudence has usually considered the following factors: (1) geological data; (2) number and location of the wells drilled both on leased lands and adjoining property; (3) productive capacity of producing wells; (4) costs of drilling operations as compared with profits; (5) time interval between completion of the last well and the demand for additional operations; and (6) acreage involved in the disputed lease.” 361 So.2d at pp. 899-900

Applying these factors to the circumstances of this case as found by the lower court, which, we add, are fully supported by the record, compels our concluding, as did the lower court, that Bayou State failed in its obligation of diligent development of the Scanland lease for the benefit of itself and the lessors. We shall discuss some of these circumstances in the section of this opinion entitled Facts.

After judgment was signed below, Bayou State sought to present a timetable and fireflood development it proposed to perform on the Scanland lease. The proposal generally provided that Bayou State, in four consecutive six month periods of time would drill and ignite a total of 12 fireflood patterns containing not less than 38 producing wells after Bayou State had gained the approval from the State Department of Conservation for the project. Bayou State’s motion to reopen and motion for a new trial were denied by the lower court with these comments:

“Of course, I have had [Bayou State’s] motion before me and have gone over the plan that was submitted there. I feel like that a statement of mine in the opinion might have brought this question on. I think that statement was, this declaration by counsel does not provide a timetable, nor set forth what its operation would entail. But, before that in the opinión I commented upon the fact that the defendant’s position had vacillated between an exotic and an experiment to something they were ready to do. Frankly, gentlemen, I toned down my decision in this case concerning this. I put in this one sentence concerning the timetable, but frankly it appeared to the Court that Bayou State learned as much about fireflooding in the two weeks of our trial as it had in its twenty years of operation. As I said, that was my feelings, that was my first draft and I elaborated on this proposition. I eliminated it. I don’t think that this was just another statement in the Court’s opinion as to the position that Bayou State had taken from the beginning of this trial to the end. The Motion for a New Trial is denied.” (Emphasis supplied.)

Among the pertinent Civil Code articles on the question of dissolution are Arts. 2046 and 2047, which read:

Art. 2046 A resolutory condition is implied in all commutative contracts, to take effect, in case either of the parties do not comply with his engagements; in this case the contract is not dissolved of right; the party complaining of a breach of the contract may either sue for its dissolution with damages, or, if the circumstances of the case permit, demand a specific performance.
Art. 2047 In all cases the dissolution of a contract may be demanded by suit or by exception; and when the resolutory condition is an event, not depending on the will of either party, the contract is dissolved of right; but, in other cases, it must be sued for, and the party in default may, according to circumstances, have a further time allowed for the performance of the condition.

The authorities concerning, and the basis for, dissolution are excellently and concisely explained in 7 Litvinoff, La.Civil Law Treatise, Book 2, in sections and pages hereafter cited, with footnotes omitted and emphasis supplied:

“The requirements to obtain dissolution of the contract are two: first, the other party’s failure to perform; second, that the dissolution be judicially pronounced.
“The failure to perform must be sufficiently serious to justify the dissolution of the contract; it must also be imputable to the party who does not perform. The motion of a party not complying with his engagement, as expressed in article 2046 of the Louisiana Civil Code, is broad enough to cover not only a total but also a partial failure to perform, as would occur, for example, when the obligor has paid only a part of the price, or has performed the contract only for a part of its intended duration. It also covers the nonperformance of an accessory obligation, and the rendering of a defective performance. In sum, the different ways of violating an obligation, accounted for in article 1931, may also be read into article 2046 of the Louisiana Civil Code.
“In situations other than total or absolute nonperformance, the obligee’s right to demand that the partial or defective performance be completed or perfected, with damages, is unquestionable. Under articles 2046 and 2047 he has the choice to demand dissolution instead. If he does so, it is not unquestionable that he will obtain it, as the court, in its discretion, may find that the partial or relative failure to perform of which plaintiff complains is not a sufficient reason to grant dissolution.
“The action of dissolution belongs only to the party who, having performed his obligation, or being ready to perform it, cannot amicably obtain the performance he expected from the other party. It is clear that the latter cannot be allowed to bring such an action.
“For dissolution to be obtained, the fact of nonperformance must have occurred by the other party’s fault. Neither article 2047 of the Louisiana Civil Code nor article 1184 of the French seems to be applicable to situations where the failure to perform has been caused by a fortuitous event or irresistible force. * * * § 269, pp. 506-508.
“The dissolution of a contract must be pronounced by the court. The remedy of contract dissolution is not to be regarded as a convenient way for a party to unburden himself of the contract. For this reason, it cannot depend solely on the will of the party complaining of nonperformance by the other. If such were the case, a party might abuse the right in a situation where there was mere delay or only partial nonperformance, and utilize such a relative failure of the other party to perform as a tool to obtain dissolution to the plaintiff’s advantage. The intervention of the courf'is the best possible means of establishing, with certainty, that the complaining party has good reasons to demand dissolution. The principle of judicial dissolution appears, thus, as a necessary consequence of the overriding principle of good faith which subjects the parties to the duty of observing a degree of tolerance in the matter of contract performance. * * *
“The necessity of a judicial demand affords an opportunity for the exercise of the court’s sovereign prerogative of weighing all these circumstances with large discretion. It is for the court to determine whether the rendering of only partial performance by the obligor, plus the delay attending a possible completion, or the failure in performing an accessory obligation, warrants dissolution. For this purpose the court takes into consideration the extent and gravity of the failure to perform al leged by the complaining party, the nature of the obligor’s fault, the good or bad faith of the parties involved, and also the surrounding economic circumstances that may make the dissolution opportune or not. Upon consideration of all such factors, a choice must be made among several courses of action.
“The court may pronounce the dissolution of the contract. This is, of course, the appropriate choice when the obligor has failed to perform out of a fraudulent design: in such a situation the dissolution operates as a sanction for bad faith. A fraudulent intent on the part of the obligor, however, is not necessary to produce dissolution. Any failure to perform involving some fault on his part suffices for this purpose, although a defaulting obligor in good faith will always enjoy the sympathy of the court. The obligor in default may usually prevent dissolution by tendering performance. In its discretion, however, the court may find such a tender or offer to perform untimely and pronounce the contract dissolved because of the obligor’s unjustified delay. Together with dissolution, the obligee may recover damages for nonperformance. The court, however, may pronounce dissolution without damages when both parties are at fault, or when no fault can be found in either party.” § 270, pp. 508-510.
“If taken to the letter, articles 2047 of the Louisiana Civil Code and 1184 of the French would seem to indicate that all a court can do in its discretion is grant a further delay for performance. That is not so, however, not only in the light of the doctrine of partial dissolution discussed above, but also in light of positive rules governing special contracts. Thus, in the matter of sales, article 2511 of the Louisiana Civil Code states: ‘If the buyer be evicted from a part only of the thing sold, and it be of such consequence relatively to the whole, that buyer would not have purchased it without the part from which he is evicted, he may have the sale canceled.’ Article 2515 further provides: ‘If the inheritance sold be incumbered with non-apparent servitudes, without any declaration having been made thereof, if the servitudes be of such importance that there is cause to presume that the buyer would not have contracted, if he had been aware of the incumbrance, he may claim the canceling of the contract, should he not prefer to have an indemnification.’
“It is clear that, under these articles, the discretion of the court does not stop at the mere granting of a further time to perform, but extends to determining whether the performance not rendered by defendant was the cause of plaintiff’s obligation, in which case dissolution must be granted, or whether the failure in defendant’s performance is not so grave as to have deterred plaintiff from entering the contract, had he foreseen it, in which case he will be granted damages or a proportional reduction of his own performance.
“In this context a Louisiana court once said: ‘Nothing can bring into a stronger light the true spirit and intent of our law in allowing at all the dissolution than that provision of Article 2047 by which the whole matter of allowing dissolution or not, or of granting further time or not, is left to the judge, so that the dissolution of the contract never does become a matter of absolute right on the part of the creditor.’
“The need for judicial discretion in the matter of contract dissolution is firmly established in the Louisiana jurisprudence. * * * ”. § 272, pp. 513, 514.
“Whether an obligor has a right to perform after he has been placed in default is a question that merits some consideration.
“If the obligee has placed him in default by any of the methods specifically provided in article 1911(2) of the Louisiana Civil Code, that is by addressing to him a request for performance, it seems clear that the obligor may then perform provided, of course, that his failure to perform has been only relative so far and therefore that performance is still possible. In the first place, an obligee who chooses such a course of action is no doubt willing to receive the performance he requests. In the second place, it would make no sense to prescribe as a requirement that the obligor must be entreated to perform, on the one hand, and on the other to conclude that he can no longer perform once he has been so entreated. Performance thereafter default, in such a case, must be accompanied by fulfillment of the accessory obligations arising from the obligor’s failure, such as damages for delay or for defects in a performance already rendered.
“It is different when the obligor is placed in default by means of a suit for dissolution brought by the creditor. Plaintiff contends, in that case, that the extent of defendant’s nonperformance is such as to give rise to a right in the obligee to obtain the dissolution of the contract. He contends, in other words, that the obligor’s failure to perform is absolute, either because performance is now impossible through his fault, or because, though possible in fact, the obligor’s fault has made such performance of no value for the obligee.
“Though such a demand amounts to a putting of the defendant in default, as shown above, it is not exactly a demand for performance. Defendant may controvert plaintiff’s petition and deny that he has failed to perform, or he may aver that his failure has been only relative. In either ease, as a means of showing an alleged fallacy in plaintiff’s position, the defendant may offer to perform.
“Under articles 1184 of the French and 2047 of the Louisiana Civil Code, the fate of the contractual relation between the parties, in such a situation, is placed in the hands of the court, by virtue of the principle of judicial dissolution. The court must then take into account the extent of the obligor's failure to perform, his good or bad faith — and the creditor’s as well — and also the economic circumstances that may render the requested dissolution opportune or not. In the exercise of its sovereign discretion the court may refuse dissolution and allow defendant to perform as offered, with damages for delay if such is the case, or even grant him additional time to perform, or pronounce the mere dissolution of the contract, or grant dissolution with damages.
“It follows that, when confronted with a suit for dissolution that placed him in default for his failure to perform, the obligor has a right to offer performance, but there should be no doubt that he has no ‘right to perform '.
“At times, the Louisiana jurisprudence has failed to distinguish the position of an obligor placed in default according to article 1911(2) of the Louisiana Civil Code from that of an obligor placed in default according to article 2047. As [a] result, the right to perform of an obligor in default was overstated in absolute terms. This approach was later changed, however, so as to conclude that an obligor placed in default under article 2047 of the Louisiana Civil Code has no right to ‘tender’ performance, though, in the discretion of the court, he may nevertheless be granted an additional time to perform." § 278, pp. 524-526.

THE FACTS

The lease in question, known as the Scanland lease, was executed in 1934 by predecessors in title of the litigants on 80 acres in the Bellevue field in east central Bossier Parish. The Scanland lease and adjoining leases in the Bellevue field afre depicted on this plat:

The Bellevue field consists of approximately 900 surface acres and produces oil from the Nacatoch sand between 350-500 feet below the surface. The field was discovered in 1921. After initial production and pressure subsided, the field did not produce any great quantity of oil until about 1963, because of the nature of the oil remaining in place. Bellevue residuary oil is a heavy, asphaltic, high viscosity oil (19° API crude) in a sand with very low gas saturation, and with essentially no reservoir pressure or susceptibility to water drive. Great quantities of water are produced with the oil by the stripper method of production common in the field before 1963. Bellevue wells are shallow, closely spaced (one or more wells per acre), and are capable of being drilled with little risk, inexpensively, in about 12 hours.

In 1952 and 1953 Bayou State acquired the Scanland lease. Bayou State operated this lease and other properties in the Belle-vue field, selling all of its production from the Scanland lease to itself for use in its refinery located at Hosston, north of Shreveport, some 50 miles from Bellevue. When judged even by 1950 standards, Bayou State’s production operations on the Scanland lease were found to be derelict, antiquated, cheap and inefficient.

When Bayou State acquired the Scanland lease about 50 wells had been drilled on the 80 acres, most of which were producing. Average production in 1955 was shown to have been 46 barrels per day. Bayou State made no capital expenditure on the lease and drilled no wells during its 24 years as lessee-operator. In recent years production was reported to State authorities from 10 wells on the lease, but it was shown and admitted that production, which had declined by 1976 to about six barrels a day, was obtained from only nine wells.

It was also shown that Bayou State’s methods of gauging or measuring and securing the oil sold, and of avoiding the comingling of this oil with -production from other leases were haphazard and left much to be desired. The lower court expressed doubt as to whether or not Bayou State had been producing oil from the lease by its methods in paying quantities.

Because of the age of the field and extensive drilling and testing, the subsurface of the Bellevue field is generally known. The quality and thickness of the Nacatoch sand from which production is obtained has been graphically depicted. In some areas of the field the sand is more productive than other areas. There are minor faults and divisions of the sand. The 80 acre Scanland property, however, in the broad sense, is no better or worse than adjoining properties from which increased production has been obtained for more than a decade. There is approximately 50 feet of Nacatoch sand under the Scanland lease with estimated recoverable reserves in excess of 3,000,000 barrels of oil. The 40 acre Getty-Elston lease, on which Getty began its fireflood project in 1963, has already produced more than 2,000,000 barrels of oil and is yet producing. About 80-90 acres of the larger Getty-Lod-wick Lumber Company lease has been fire-flooded by Getty during the 10 years before this suit was filed and it has already produced more than 2,500,000 barrels of oil.

Getty has drilled almost 500 wells on its leases since 1963 and plans to drill 200 more wells in its fireflood program. Bayou State drilled several wells on its Wyche lease in its fireflood operation, but has drilled no wells on Wyche since 1975. Bayou State admits that its production from the Wyche lease is geared to its refinery’s capacity. Cities Service has drilled hundreds of wells in its fireflood operations since 1971.

Bayou State operated for Getty Oil Co. in the Bellevue field for several years. In 1963 Getty took over a portion of its Elston lease from Bayou State and began a fire-flooding project (in situ combustion) to stimulate production. The fireflood method was expanded rather rapidly to other leases and proved successful by 1967. Knowledge of Getty’s increased production was available to Bayou State. Bayou State sometimes did contract work for Getty on Getty’s wells during Getty’s first fireflood operations. Bellevue fireflood projects have been well publicized.

Getty’s pilot fireflood program on 2.8 acres increased production from about 4 barrels a day to about 100 barrels a day in approximately 18 months. Getty took over from Bayou State the operation of the rest of its Elston lease and its Lodwick Lumber .Co. leases and began to acquire other leases in the area, some of which had once belonged to and had been abandoned by Bayou State (Buckelew, for instance). Getty proposed to Bayou State a fireflood program for Bayou State’s operations in 1967. Bayou State proposed to Cities Service a fireflood program for Cities Service properties, in 1969 and started a fireflood of its own on the Bayou State-Wyche lease in 1970. Cities Service began a fireflood operation on its Bodcau lease in 1971.

Fireflooding successfully produces about 60 percent of the oil in place while the stripper method of production produces five percent. The sand thickness underlying the Scanland lease is conducive to fireflood operations. It was shown that royalty owners under fireflood recovery receive more than $1200 per acre per month while those under a stripper recovery receive less than $3 per month. Bayou State’s own fireflood on the Wyche lease recouped capital expenditures and operating expenses by 1975 and the Wyche lease has since maintained its profitability. Bayou State, however, has not drilled any wells on Wyche since 1975. In planned programs of expanding production, Cities Service and Getty have drilled and reworked hundreds of wells since their respective fireflood operations began. As of March 1977, Getty was fireflooding its 40 acre Elston lease, about 80-90 acres of its Lodwick lease, its 80 acre Buckelew lease and its 40 acre Buckelew lease. Cities Service firefloods its 40 acre Bodcau Bayou lease north of Scanland in Section 15 and its 80 acre Bodcau Bayou lease in Section 11. These leases and the Bayou State-Wyche lease, which is also fireflooded, are shown on the plat, supra.

Bayou State contracted with Kadane Corporation for a plan for extensive fireflood operations in 1972 on its Wyche lease, but revealed no plans until after trial for fire-flooding the Scanland lease. Bayou State’s Kadane fireflood expert was of the opinion as early as 1969 that a fireflood project should be attempted on the Scanland lease but neither he nor Bayou State made a feasibility study for a fireflood for Scan-land. This expert stated that on all Bayou State Bellevue properties a fireflood would be tried “at some time or another”. The Bayou State-Wyche lease has not been made as productive as the other firefloods of Getty or Cities Service. The Bayou State-Wyche fireflood has not been more widely expanded, according to this expert, because of “money limitations”.

The Bayou State-Scanland lease of 80 surface acres comprises about 10 percent of the Bellevue field. Its Nacatoch sand thickness and comparative productive potential comprises at least that percentage of the total field.

While technically called a technique of secondary recovery, fireflooding is, as to the type of the Bellevue residuary oil, as the trial court emphasized, the “only method of producing the Bellevue field and has been for a number of years . . . the normal [and] efficient method . . . ”

Considering then the factors mentioned in Vetter, supra,

(1) geological data;
(2) number and location of the wells drilled both on leased lands and adjoining property;
(3) productive capacity of producing wells;
(4) costs of drilling operations as compared with profits;
(5) time interval between completion of the last well and the demand for additional operations; and
(6) acreage involved in the disputed lease;

the lower court was correct in cancelling the lease.

Considering C.C. Arts. 2046 and 2047, the trial court was' also correct in cancelling the lease. Demands and inquiries were made on Bayou State by the Scanland lessors for several years before suit was filed in 1977. Bayou State proposed to Cities Service sometime before 1970 to fireflood Cities Service property, including the 40 acres immediately south of Scanland. Bayou State said this was done because it was looking for more acreage to develop. The absence of technical studies as to Scanland and the absence of an intent to develop Scanland is well shown by circumstances detailed in the lower court’s reasons for judgment. These circumstances include the haphazard and lax methods of measuring and securing the oil produced and the inaccuracy of reports to the state authority of what oil was produced from Scanland. These circumstances also include Bayou State’s responses to its Scanland lessors’ demands for development and its failure to specifically plan for the proven method of development which Bayou State itself and others have successfully employed on other adjoining properties. See Wadkins v. Wilson Oil Corporation, 199 La. 656, 6 So.2d 720 (1942).

The lower court summarized its conclusions by stating that Bayou State’s failure to fireflood has been of longer duration and is more evident than the lessee’s failure to employ modern and proved methods of recovery in Wadkins, supra, where the lease was dissolved and the lessee was not allowed additional time to perform.

The lower court’s comment about fairness in the contractual relationship is a parallel of the inquiry into the question of good faith between the parties in an action to dissolve a contract without additional delay. See Litvinoff, § 270, supra:

“For this purpose the court takes into consideration the extent and gravity of the failure to perform alleged by the complaining party, the nature of the obli-gor’s fault, the good or bad faith of the parties involved, and also the surrounding economic circumstances that may make the dissolution opportune or not. Upon consideration of all such factors, a choice must be made among several courses of action.”

We agree that the lease should have been cancelled without additional delay.

THE FEES AWARDED BELOW

While the awards appear somewhat low, they are not so low as to constitute an abuse of the discretion afforded trial courts in the fixing of fees. The amount awarded below for attorney fees shall be increased by $1,000 to compensate for the time involved in briefing and arguing here.

For reasons detailed below and summarized here, at appellant’s cost, judgment below, as amended, is

AFFIRMED.

      . This case concerns the fireflood method of recovering oil in place, successfully employed in the Bellevue Oil Field since 1963. As will be shown, the fireflood method of producing the Bellevue type oil results in recovery of about 60 percent of the oil in place. An injector well is drilled and ignited and air compressors keep the fireflood burning. The burning oil sand produces several hundred degrees of heat which vaporizes the oil and water. About five percent of the heaviest part of the oil is not vaporized. This residue supplies fuel through which the fire will continue burning. Recovery wells then pump from their well bores the oil ahead of the fireflood which either is liquefied by or which condenses from the heated vapor. This method increases approximately 30 times the production obtained by the older stripper method which allows slow recovery of about five percent of the oil in place. The rate of recovery is also greatly increased by the fire-flood method. The crux of this case is defendant’s failure and refusal to employ the fireflood method to the property.


author: PRICE, Judge.

text:
    Patricia Ann Deaner COMPTON, Plaintiff-Appellee, v. Huey COMPTON, Defendant-Appellant.
    No. 13854.
    Court of Appeal of Louisiana, Second Circuit.
    May 1, 1979.
    En Banc. Rehearing Denied June 8, 1979.

      Campbell, Campbell & Johnson by John T. Campbell, Minden, for defendant-appellant.
    Pish, Montgomery, Robinson & Bolin by Roy M. Fish, Springhill, for plaintiff-appel-lee.
    Before PRICE, HALL and JONES, JJ.

       Bolin and Marvin, JJ., took n part in denial of rehearing.

   PRICE, Judge.

Defendant appeals from the judgment rendered in a suit to settle and partition the community following a judicial separation. He contends the trial court erred in finding a one-acre tract with residence thereon conveyed to him by his father after his marriage to plaintiff was community property rather than a donation to his separate estate, and alternatively, that the court erred in failing to award him reimbursement for the amount expended by him in the construction of the residence on the tract prior to his marriage to plaintiff. Defendant further complains of the rejection of his claim for reimbursement of the value of an automobile owned by him prior to the marriage which was traded in on the purchase of another automobile during the marriage.

We amend and.affirm.

In 1969, during a former marriage, defendant began the construction of a residence on land owned by his father. The evidence shows the interior of the house was not complete at the time defendant married plaintiff on November 9, 1971.

After their marriage, the parties borrowed $5,000 from Carter Federal Credit Union, to repay defendant’s father the sum of $1,668 for sums he advanced for materials at the time defendant first began the construction. The remainder of the borrowed money was used to install plumbing and finish the inside of the house to the extent necessary to make it habitable.

By cash deed, dated September 19, 1973, defendant’s father conveyed the one-acre tract to defendant upon which the house was located. The deed recited a consideration of $200 and did not contain a declaration that the conveyance was for defendant’s separate estate or that he was purchasing with his separate funds.

Defendant’s contention that this property is his separate property because he received it as a donation from his father is without merit. La.C.C. Art. 2402 provides that all property acquired during the marriage is presumed to be part of the community. Under La.C.C. Art. 2334 this community presumption may be rebutted by showing the property was acquired during the marriage with separate funds, or by inheritance or donation to one of the spouses. There is a well-settled jurisprudential rule, however, that the husband may not offer evidence to rebut the community presumption unless the act of conveyance by which he receives title to property contains a recital that he is purchasing with separate funds for the benefit of his separate estate. Without the “double declaration” the property acquired by deed for a recited consideration by the husband during the marriage is conclusively presumed to be community property even though in fact the transfer may have been a donation to him. Barnett v. Barnett, 339 So.2d 495 (La.App.2d Cir. 1976); Primeaux v. Libersat, 307 So.2d 740 (La.App.3d Cir. 1975). Since the cash sale deed from defendant’s father to him did not contain such a declaration, the immovable property (house and lot) is presumed conclusively to be community property, and the trial court was correct iri its finding to this effect.

Defendant alternatively contends that if the property be found to belong to the community, he should be allowed reimbursement from the community for the amount expended by him in the construction of the house prior, to the marriage to plaintiff. The law is well established that a husband who spends his separate funds on community property has the right to claim reimbursement from the community for money spent by him for the benefit of the community so long as the community still benefits from this separate contribution at the time of its dissolution. See Gouaux v. Gouaux, 211 So.2d 97 (La.App.1st Cir. 1968). Those separate funds expended for materials in the construction prior to the parties’ marriage benefited the community as an essential component part of the existing structure at the time of dissolution. Therefore, defendant has a legitimate claim against the community for separate funds expended by him in constructing the shell of the house in 1969.

Although defendant contends he spent $7,500 for materials in the construction prior to the marriage, he has not offered sufficient evidence to sustain an award for this amount. Defendant did spend $1,668 of his father’s money for building materials; however, this sum was returned out of the $5,000 community loan, and therefore, defendant has no claim for this amount.

The only other source of funds which defendant has shown available to him during the period in question was from the sale of thirteen head of cows with calves which were his part of the property settlement of a prior marriage. Defendant testified these funds were used for purchase of materials, and although the specific amount is indefinite, we are of the opinion he should be allowed reimbursement from the community for the sum of $1,300 under the circumstances shown.

Lastly, the defendant contends that this court should recognize his claim for a $1,120 credit against the community which represents the trade-in value of his separate automobile used on the purchase of another automobile bought during the existence of the community. No evidence was offered to show the actual market value of the Ford Comet which was traded on a 1972 Ford Torino. The trial judge rejected this claim because he found the “trade-in allowance” not to be reliable evidence of true market value. We find no error in this conclusion and find the trial court properly rejected this claim by defendant.

For the foregoing reasons, the judgment appealed is amended to award defendant, Huey Compton, the sum of $1,300 to repay his separate estate for money expended on the residential construction which subsequently benefited the community, which sum shall be paid from the proceeds of the sale of the property of the marital community after payment of costs of these proceedings and prior to the distribution thereof to the parties. The judgment as amended is affirmed. Costs of this appeal are assessed equally to the parties.


text:
    Garland WEBB v. CITY OF SHREVEPORT et al., Joseph Michael Clark, Sr., et al. (Intervenors).
    No. 13920.
    Court of Appeal of Louisiana, Second Circuit.
    May 4, 1979.
    En Banc. Rehearing Denied June 8, 1979.

      Johnston & Thornton by James J. Thornton, Jr. and W. Orie Hunter, III, Shreveport, for appellant.
    City of Shreveport Legal Department by Charles C. Grubb and Neil T. Erwin, Shreveport, for defendants-appellees.
    Francis M. Gowen, Jr., Shreveport, for intervenors-appellees.
    Before HALL, MARVIN and JONES, JJ.
   MARVIN, Judge.

May a municipality be compelled under the Louisiana Public Records Law (LSA-R.S. 44:1, et seq.) to reveal the names and addresses of its employees to a person who declares he is also acting on behalf of a labor union seeking to organize municipal employees?

The City denied this plaintiff’s written request for the names and addresses of such employees and plaintiff brought suit under the law (LSA-R.S. 44:35).

The lower court held that the names and addresses of requested employees are public records under the law, but that the municipality did not have to reveal this information because the public employees, some of whom intervened here, have a paramount constitutional right of privacy against such a disclosure to union organizers. La.Const. Art. 1, § 5. Judgment below rejected plaintiff’s demands to enforce the Public Records Law. This appeal followed and was given preferential status. LSA-R.S. 44:35.

We agree that the names and addresses requested are subject to the Public Records Law. We reverse and hold, however, that disclosure of the requested information is not such an invasion of privacy that is protected by the Louisiana and the United States Constitutions.

The Public Records Law must be liberally interpreted so as to extend rather than restrict access to public records by the public. Bartels v. Roussel, 303 So.2d 833 (La.App. 1st Cir. 1974). This law covers virtually every kind of material or information which is recorded for some use in the performance of any public function. Caple v. Brown, 323 So.2d 217 (La.App. 2d Cir. 1975). The term public records includes:

“All books, records, writings, accounts, letters and letter books, maps, drawings, photographs, cards, tapes, recordings, memoranda, and papers, and all copies, duplicates, photographs, including microfilm, or other reproductions thereof, or any other documentary materials, regardless of physical form or characteristics, including information contained in electronic data processing equipment, having been used, being in use, or prepared, possessed, or retained for use in the conduct, transaction, or performance of any business, transaction, work, duty, or function which was conducted, transacted, or performed by or under the authority of the constitution or laws of this state, or by or under the authority of any ordinance, regulation, mandate, or order of any public body or concerning the receipt or payment of any money received or paid by or under the authority of the constitution or the laws of this state . . . LSA-R.S. 44:1 A.(2) (Emphasis supplied)

Article 12, § 3 of the Louisiana Constitution, also pertinent, reads in part:

“No person shall be denied the right to examine public documents, except in cases established by law.” (Emphasis supplied)

As the Bartels court observed, we find no evidence of legislative intent to qualify in any way the right of the public (any person over the age of 18) to access to material or information which is recorded for some use in the performance of any public function subject, of course, to the exceptions whieh are provided in Title 44 or “as otherwise specifically provided by law.” Sec. 1 A.(2). See for example, LSA-R.S. 23:1660.

The City and nine of its employees, who have intervened, argue that the Public Records Law is limited to those records which relate to the manner, basis and reasons upon whieh governmental affairs are conducted and particularly those which relate to the expenditure of public funds. They argue that the addresses of the public employees were furnished by the employees themselves for limited and confidential personnel purposes and that these are not subject to the Public Records Law. Personnel records contain more than simply the name and address of employees. They may contain material, the disclosure of which might shbject the employee to embarrassment and humiliation or which might affect the future employment of the employee, as in Trahan v. Larivee, 365 So.2d 294 (La.App. 3d Cir. 1978).

In Trahan the court found that even personnel evaluation reports “[fell] within the broad definition of ‘public records’.” The court found, however, that the personnel evaluation reports contained information which, if disclosed, might subject the public employees to embarrassment or humiliation or which might affect their future employment. The court then held that the disclosure of personnel evaluation reports would be an invasion of the employees’ constitutionally protected right of privacy. 365 So.2d 300.

There is a vast difference, however, in personnel evaluation reports and a listing (or computer printout) of names and addresses of employees of a municipality. The fact that a municipality or its employee labels the name or address of an employee as having been furnished to become a part of a confidential personnel record, does not elevate the name or address to the status of being a constitutionally protected private thing. The Public Records Law is not limited to records affecting only the public fisc but covers all records unless specifically excepted by statute, or as in Trahan, unless the disclosure of the information contained in the public record is information to which the employee has a reasonable expectation of privacy such as personnel evaluation reports, the disclosure of which might affect the employee’s future employment or cause him embarrassment or humiliation. See Trahan at pages 298-300.

The constitutional protection is against unreasonable searches, seizures, or invasions of privacy. Tooley v. Canal Motors, Inc., 296 So.2d 453 (La.App. 4th Cir. 1974), defined the right of privacy as the right to be let alone and to live in [reasonable] seclusion without being subjected to unwarranted and undesired [invasion] and publicity. Bracketed material supplied. Federal courts have noted that a public employee’s mere loss of anonymity is considered only as a minor invasion of privacy while disclosure of an evaluation and criticism of the employee’s performance is a serious invasion. See Trahan, supra, at page 299.

At 48 Cal.L.Rev. 393-395, Dean Prosser, in summarizing tortious invasion of privacy by public disclosure of private facts, has observed:

“ . . All of us, to some extent, lead lives exposed to the public gaze or to public inquiry, and complete privacy does not exist in this world except for the eremite in the desert. Any one who is not a hermit must expect the more or less casual observation of his neighbors and the passing public as to what he is and does, and some reporting of his daily activities . . . .” (Emphasis supplied)

Public employment obviously is not private employment. The employee of a municipality is the agency, individually or collectively, through which the municipality functions and by which the public identifies the municipality. A public body or municipality does not exist or function simply in its physical facilities but in the life and breath of the public officers and employees who perform their duties of rendering some service to the public. Indeed, the words private and public are antonymous, although some private facts about a public employee, as in Trahan, do reach constitutional dimensions.

Federal authorities which have considered constitutional claims of privacy against disclosure, sometimes called “disclosure privacy”, generally set forth the requirement that the claimant must establish that he has (subjectively) an expectation of privacy against disclosure and that the expectation is (objectively) legitimate or reasonable. See Nixon v. Administrator of General Services, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1972).

Our Louisiana Constitution, while more explicit in its recognition of the right of privacy, should not require a different analysis. Art. 1, § 5 protects against “unreasonable searches, seizures, [and] invasions of privacy. . . . ” Thus, our threshold determination is whether the City or its intervening employees have (conversely), a reasonable expectation of privacy against disclosure of the names and addresses of city employees, excluding those in the police and fire departments. If a reasonable expectation of privacy is found, then and only then, need we weigh or balance the public records or documents disclosure interest against the privacy interest as was done in Trahan and in the federal cases.

The lower court failed to determine the threshold issue of reasonable expectation and went directly to the weighing or balancing of interests, although impliedly perhaps finding that the claimants’ expectation of privacy was reasonable. We determine to the contrary.

To paraphrase Prosser, complete privacy does not exist except for the eremite in the desert. A person’s employment, where he lives, and where he works are exposures which we all must suffer. We have no reasonable expectation of privacy as to our identity or as to where we live or work. Our commuting to and from where we live and work is not done clandestinely and each place provides a facet of our total identity.

By analogy, numerous cases under the Federal Freedom of Information Act require disclosure of names and addresses as against a claim of privacy. See, e. g., Getman v. N. L. R. B., 146 U.S.App.D.C. 209, 450 F.2d 670 (1971) and Robles v. Environmental Protection Agency, 484 F.2d 843 (4th Cir. 1973). Getman stated the disclosure of an employee’s name and address is only a minor invasion of privacy. In Wine Hobby USA, Inc. v. United States Internal Rev. Ser., 502 F.2d 133 (3d Cir. 1974), which denied disclosure, the request was for names and addresses of private persons, not public employees, who had been granted the privilege of making wine for their family’s consumption. Private citizens certainly have a reasonable expectation of privacy against governmental disclosure of their wine-making or wine-consuming propensities. Likewise, in Trahan, supra, it was found that public employees might be embarrassed by disclosure of their personnel evaluation records [a reasonable expectation of privacy] and the personnel evaluation records, although found subject to the Public Records Law, were protected from disclosure by the privacy interest. These cases, on which the lower court relied, are inapposite on their facts because in each case the court expressly determined affirmatively the threshold issue of reasonable expectation of privacy. Here, we find that neither the City nor its intervening employees have a reasonable expectation of privacy against disclosure of their names and addresses to a person entitled to invoke the Public Records Law.

There is nothing illegal in plaintiffs request for the information. Neither the claims or hints, on the one hand, of violence and trespass toward municipal employees, nor, on the other hand, of unfair or anti-labor prejudices and practices by municipal officers, deserve mention. The law provides remedies in each situation and we shall not engage in speculation in these areas. The purpose for which a person requests examination of a public record is immaterial where no balancing of interests is required. LSA-R.S. 44:32 provides that the custodian of the records shall make no inquiry of the applicant other than as to his identity and age. See LSA-R.S. 44:31. The fact that a person who requests a public record volunteers for what purpose the request is made, as long as the purpose is legal, does not permit detailed inquiry by the custodian or by a court into the applicant’s motive in requesting a public record.

To the intervention of the municipal employees, the plaintiff filed a peremptory exception of no cause of action. To the plaintiff’s petition for enforcement of the Public Records Law, the City filed an exception of nonjoinder of indispensable parties defendants, i. e., all employees of the City the disclosure of whose names and addresses might be required.

SUMMARY

We have found that neither the City nor its intervening employees, excluding fire and police personnel, have a reasonable expectation of privacy against disclosure of their names and addresses as contained on a computer tape.

On this finding then, plaintiff’s exception of no cause of action to the intervening petition is hereby sustained and the petition of intervention is dismissed at the cost of intervenors, and the exception of nonjoin-der of indispensable parties defendants is hereby overruled.

Judgment below is reversed and it is hereby ordered that defendants, City of Shreveport and its Mayor, William T. Hanna, Jr., comply with the Public Records Law and permit plaintiff, Garland Webb, to obtain copies at plaintiff’s expense of a computer printout of the names and addresses of all employees of the City, excluding fire and police personnel, as the law provides.

Defendants are hereby cast with costs, here and below.

REVERSED AND RENDERED.

      . The written request was for the names and addresses of City employees, excluding fire and police personnel.

      . “Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.”


author: SAMUEL, Judge.

text:
    Lisle NINE v. Jess HARPER et al.
    No. 9716.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 4, 1979.
    Writ Refused June 15, 1979.

      Gary J. Dragon, Chalmette, for plaintiff-appellant.
    Duke & Porterie, John L. Hantel, New Orleans, for defendants-appellees.
    Before SAMUEL, REDMANN and GU-LOTTA, JJ.
   SAMUEL, Judge.

Plaintiff, Lisle Nine, filed this suit for personal injuries received in an accident while employed by Geosource, Inc. on December 16, 1975. Named defendants were Jess Harper, Robert Copeland, Norman Ar-ceneaux, Jean Buffington and others.

Defendants, Harper, Arceneaux and Copeland, filed a motion for summary judgment. After a hearing thereon, the trial court granted defendants’ motion for summary judgment and dismissed plaintiff’s suit against those three defendants. Plaintiff has appealed from that judgment.

The affidavits and depositions in the record show plaintiff was injured on December 16, 1975, at which time he was employed by Geosource, Inc., while steadying pipe attached to a “cherry picker” which either touched or came in close proximity to an overhead power line. He was shocked and burned by the electricity from the line.

Harper, Copeland and Arceneaux are all “executive officers” of Geosource, Inc., the same company which employed plaintiff. In December, 1975 Copeland, the operations manager and top local executive of Geo-source’s Hunt Engine Division plant at Harvey, Louisiana, received orders from his superiors in Houston to improve and enlarge the parking lot at the Harvey plant. Copeland’s primary function is stated to be the administration of the general management and financial business of the Harvey plant and the five departments into which it is divided. His affidavit states he delegated and assigned the responsibility for improving and enlarging the parking lot to defendant, Harper, who occupied the position of manager of the fabrication department. Harper, in turn, delegated responsibility for carrying out the project to another defendant, Gene Buffington, a mechanical and welding supervisor. Arceneaux is stated to be the safety coordinator of the Harvey plant, and his duties included overseeing general safety programs, instruction of new employees with regard to plant safety policies, issuance of written safety instructions and equipment to plant employees, making safety inspections of the building and equipment, rendering safety reports to management, and directional general safety meetings held monthly for all employees. In his affidavit Arceneaux denies his duties included monitoring individual daily tasks and supervising the work of employees for safety violations. He stated job safety was the responsibility of the supervisors or foremen of the individual jobs and of the individual employees themselves.

The law applicable to the case is not substantially disputed. Article 966, Louisiana Code of Civil Procedure, states:

“The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiff’s motion may be made at any time after the answer has been filed. The defendant’s motion may be made at any time.
The motion for summary judgment shall be served at least ten days before the time specified for the hearing. The adverse party may serve opposing affidavits prior to the day of the hearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” LSA-C.C.P. Art. 966.

The substantive law to be applied by this court was set forth by the Supreme Court in the case of Canter v. Koehring Company, which stated the criteria under which an officer, agent, or employee may be liable to a co-employee. The Canter court said:

“1. The principal or employer owes a duty of care to the third person (which in this sense includes a co-employee), breach of which has caused the damage for which recovery is sought.
2. This duty is delegated by the principal or employer to the defendant.
3. The defendant officer, agent, or employee has breached this duty through personal (as contrasted with technical or vicarious) fault. The breach occurs when the defendant has failed to discharge the obligation with the degree of care required by ordinary prudence under the same or similar circumstances — whether such failure be due to malfeasance, misfeasance, or nonfeasance, including when the failure results from not acting upon actual knowledge of the risk to others as well as from a lack of ordinary care in discovering and avoiding such risk of harm which has resulted from the breach of the duty.
4. With regard to the personal (as contrasted with technical or vicarious) fault, personal liability cannot be imposed upon the officer, agent, or employee simply because of his general administrative responsibility for performance of some function of the employment. He must have a personal duty towards the injured plaintiff, breach of which specifically has caused the plaintiff’s damages. If the defendant’s general responsibility has been delegated with due care to some responsible subordinate or subordinates, he is not himself personally at fault and liable for the negligent performance of this responsibility unless he personally knows or personally should know of its non-performance or mal-performance and has nevertheless failed to cure the risk of harm.

Plaintiff urges a question of material fact exists as to whether Copeland and Harper used due care in delegating the task of improving and enlarging the parking lot to a responsible subordinate. Defendants contend Harper was properly qualified because he had extensive supervisory, planning, and management experience in the , industrial field for more than ten years before his coming to work with Geosource. Defendants also contend delegation of the work to Buffington was proper because he was a mechanical and welding supervisor who had worked all of his adult life in construction and had been self-employed as a welding contractor. He was 47 years of age at the time of the accident.

To controvert these statements, plaintiff points out Harper admitted in his deposition he was only employed by Geosource for approximately 6 weeks prior to the accident, and that his duties as fabrication manager involved designing and building the electrical and mechanical packages manufactured by the company. Plaintiff further points to deposition evidence to show Buffington, from Colorado, had only been hired a few weeks prior to the accident, and Harper did not have an opportunity to know Buffington’s qualifications or abilities. Harper further states he had never done the work of laying pipe in a parking lot for Geosource. Plaintiff also argues that both Harper and Buffington had been hired to fabricate electrical and mechanical packages, and neither man was hired to build parking lots or lay pipe.

Arceneaux basically assumes the position in his affidavit that as safety coordinator he had no direct duty to supervise the daily work of the employees, whose safety was the responsibility of the supervisors, foremen, and employees themselves. Plaintiff, on the other hand, shows Arceneaux had little or no experience with laying pipe in the area of overhead power lines. By deposition, Arceneaux stated he had only 5 days of formal training in the field of safety. Moreover, even though he knew of the project to be undertaken and the need for laying drainage pipe in the parking lot, he had no warning signs posted to warn of the overhead power lines suspended from poles near the parking lot area. In deposition, Arceneaux further stated he knew when both Harper and Buffington were hired, the only safety meeting between Buffington and himself, was an initial 30 minute talk on safety at Geosource. Thus, plaintiff argues Arceneaux was guilty of negligence in failing to act on his actual knowledge of the situation and in delegating responsibility for safety to persons improperly trained in that area.

The evidence regarding the capabilities of various defendants seems to indicate they were properly suited for the job delegated to each of them. Nevertheless, the ultimate determination of the negligence of the executive officers in the area of their own personal fault (as in Arcen-eaux’s case) and in the area of proper delegation to responsible subordinates (involving Copeland, Harper and Arceneaux) is generally a question of fact to be determined by the trial court. In the present case, the evidence is not sufficient to justify removal of that fact-finding function from a trial on the merits.

For the reasons assigned, the judgment appealed from is annulled and set aside, and the matter is remanded to the trial court for further proceedings in accordance with law and with the views herein expressed.

ANNULLED; SET ASIDE; AND REMANDED.

      . La., 283 So.2d 716.

       Thus, in Eschmann v. Moyer, 253 La. 818, 220 So.2d 86 (1969), we held that the corporate officer was not individually liable to an employee injured through an alleged premise defect upon our factual finding that there was ‘no personal negligence’, 220 So.2d 94, on the officer’s part because in fact no premise defect existed and because he had ordered reasonable maintenance and had checked to see these orders were carried out and had no personal, actual or constructive, knowledge of the alleged defect at the time of the accident.”

      . See Curtis v. Gulf States Utilities Company, La.App., 306 So.2d 473.


author: STOULIG, Judge.

text:
    Mrs. Ellen Cohen, Wife of/and Theodore M. BRENNAN v. BOARD OF ZONING ADJUSTMENTS OF the CITY OF NEW ORLEANS et al.
    No. 9884.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 4, 1979.
    Thomas M. McBride III, Chalmette, for plaintiffs-appellants.
    Manard, Schoenberger & Ryan, William F. Ryan, New Orleans, for Dr. and Mrs. Arthur Davidson, intervenors-appellees.

      Before LEMMON, GULOTTA and STOULIG, JJ.
   STOULIG, Judge.

This appeal brought by Mr. and Mrs. Theodore M. Brennan puts at issue the right of property owners to complete home renovation construction begun under a permit issued by the City of New Orleans which inadvertently approved construction that violates the provisions of the Comprehensive Zoning Ordinance for the City of New Orleans.

After buying the property at 1238 Third Street, appellants commissioned an architect to draw plans for interior renovation and exterior additions consisting of a three-foot raised terrace extending to the property line and a pet niche (known in some circles as a dog house). Frederick Forstall, Jr., of G & F Construction Company, as appellants’ contractor, obtained Permit No. B-16614 on October 20, 1976 to perform the work in accordance with the architect’s plans.

Because the interior work was undertaken first, it was not until March 1977 that the exterior construction alerted neighbors of the impending zoning violation. Interve-nors, Dr. and Mrs. Arthur Davidson, whose property abuts the appellants’ on the rear and side property lines, attempted to resolve the problem with discussions personally and through their attorney. When this failed, they obtained a “Stop Work” order through the Permits Department on May 13, 1977. Appellants claim that at this point in time the renovation was 95% completed and some $24,000 of the $25,000 contract price had been expended.

Appellants’ response to the Stop Work order was to appeal to the Board of Zoning Adjustments of the City of New Orleans to permit the variance necessary to allow completion of the renovation as designed. The plans violate zoning regulations in two respects: (1) The terrace and pet niche are designed to be built over an area exceeding 60% of the rear yard, which violates the 40% maximum rear yard allowance an accessory structure is permitted to occupy by the zoning laws; and (2) The additions were not planned to allow a three-foot setback from the rear and side property lines.

On July 7, 1977 the Board of Zoning Adjustments granted plaintiffs partial relief to permit “ * * * the terrace to be erected at no more than one foot above grade and remain three feet within the property line maintaining existing shrubs and fence. The pet niche have door to rear yard remain closed.”

Unsatisfied with this ruling, the Bren-nans then petitioned the Civil District Court to grant certiorari to review and reverse this ruling, permit the variance originally requested, and issue a writ of mandamus to recall and set aside the Stop Work order. The trial court, after considering the matter, dismissed plaintiffs’ suit and declined the mandamus.

Appellants first contend that inter-venors, were they to challenge the validity of the permit, had only 45 days from the time of its issuance to appeal. They cite Abaunza v. Roussou, 339 So.2d 524 (La.App. 4th Cir. 1976), to support this proposition. While it is true there is a 45-day limitation for appeals from any decision of the Director of Safety and Permits, this does not supersede the provision of R.S. 9:5625 permitting actions to enjoin the violation of zoning regulations within a two-year period.

Appellants argue that the interve-nors should have filed a suit for injunction rather than seek a stop work order from the Permits Department; however, rather than challenge the legality of this procedure at the time, the Brennans chose to seek a variation permit from the Board of Zoning Adjustments.

This step impliedly waives any complaints to the procedure used to obtain the Stop Work order. We also point out that had the validity of the Stop Work order been tested and determined adversely to the Davidsons, they would have still had a remedy by injunction. We hold that once the Brennans submitted the appeal for a variation they acquiesced in the Stop Work order and cannot now complain of procedural error because they did not accomplish their purpose by the appeal to the Board of Zoning Adjustments.

Appellants further challenge the ruling as the deprivation of a vested right. This court held in Nassau Realty Co. v. City of New Orleans, 221 So.2d 327 (La.App. 4th Cir. 1969), that when a building permit is issued in error, the licensee does not acquire a vested property right in such permit. In weighing the respective rights of the property owners in this ease, we point out that the intervenors, residents of this area for some 22 years, and the other neighbors who voiced opposition to the Brennans’ proposed zoning violations, also have property rights to protect when they voice objections to proposed infractions. It should also be noted that the opponents of the renovations could not have become aware of the problem until more than 45 days after the permit was issued because of the progress in construction.

The only question remaining is whether plaintiffs are entitled to relief because in making a determination the Board abused its discretion. We point out that granting a zoning variation is a discretionary and not a mandatory function of the Board; therefore, mandamus would not lie. Greenup v. City of New Orleans, 212 So.2d 235 (La.App. 4th Cir. 1968). As a reviewing court, we may not substitute our judgment for that of the Board. The scope of our review is to decide whether the agency decision is supported by substantial and competent evidence. See discussion in Gertler v. City of New Orleans, 346 So.2d 228 (La. App. 4th Cir. 1977). In this case the record supports the decision reached. We find no abuse of discretion.

For the reasons assigned, the judgment appealed from is affirmed at appellants’ cost.

AFFIRMED.

      . Comprehensive Zoning Ordinance for the City of New Orleans Art. X, § 12(2).

      . Made parties defendant were the Board of Zoning Adjustments of the City of New Orleans and its individual members, Edward C. Kurtz, director of the Department of Safety and Permits of the City of New Orleans, and the City of New Orleans.


author: REDMANN, Judge.

text:
    C. T. BOUDREAUX LUMBER CO. et al. v. SHERRWOOD HOMES, INC., et al. Lionel JOSEPH et al. v. SHERRWOOD HOMES, INC., et al.
    Nos. 9934, 9935.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 4, 1979.

      Eugene R. Groves, Taylor, Porter, Brooks & Phillips, Baton Rouge, for third-party plaintiffs-appellants Sherrwood Homes, Inc. and The Travelers Indemn. Co.
    Robert B. Nolan, Adams & Reese, New Orleans, for third-party defendants-appel-lees Coleman and Co. and Aetna Cas. and Sur. Co.
    Before REDMANN, BOUTALL and SCHOTT, JJ.
   REDMANN, Judge.

Third-party defendant Coleman and Company manufactured a heater that it sold to third-party plaintiff Shelter Resources Corporation in Natchitoches, Louisiana. Shelter incorporated the heater, as anticipated, into a mobile home that it sold through a dealer to plaintiff Lionel Joseph. The home caught fire and it and an adjacent structure and materials belonging to another plaintiff were heavily damaged. Shelter and Coleman were sued for the damages. There was judgment against Coleman, necessarily on the basis that a defect in the heater caused the fire. A directed verdict dismissed Shelter at the conclusion of plaintiff’s case, presumably on a refusal to impute to Shelter knowledge of the heater defect in the mobile home it manufactured. Shelter’s complaint on appeal is that the judgment did not award it attorney’s fees against Coleman, as La.C.C. 2545 authorizes against a seller who knew the defect (including, by imputation of knowledge, a manufacturer; Rey v. Cuccia, La.1974, 298 So.2d 840).

Coleman’s principal argument is that the main demands were not redhibition but tort actions. We concede that the main demand by the materials-owner against the home manufacturer was exclusively quasi-delictual but we point out that the third-party demand of home manufacturer against heater manufacturer was exclusively contractual, arising out of the sale of the heater: third-party plaintiff’s claim is that whatever loss (damage) it suffers by reason of the defect in the heater, third-party defendant is liable for, with expenses including attorney’s fees, under C.C. 2545. We agree.

The amount of the fees, however, can only be estimated from the work evident in the record, which will not support the $10,-000 fee asked by Shelter. There is no testimony of the time spent in investigation, depositions and other preparation for trial. We conclude that $2,500 is appropriate under the circumstances.

Reversed; judgment for Shelter Resources Corporation against Coleman and Company for $2,500 with interest from date of this judgment and costs of appeal.

      . The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of price and repayment of the expenses, including reasonable attorneys’ fees, is answerable to the buyer in damages.

      . See Laughlin v. Fiat Distributors, Inc., La. App. 3 Cir. 1979, 368 So.2d 742, and Robertson v. Jimmy Walker Chrysler-Plymouth, Inc., La. App. 3 Cir. 1979, 368 So.2d 747.


text:
    Hilda LEWIS, Divorced Wife of George Blatch v. ORLEANS PARISH SCHOOL BOARD.
    No. 9967.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 4, 1979.
    Derbes & Derbes, James G. Derbes, New Orleans, for plaintiff-appellee.
    Jefferson, Bryan & Gray, Trevor G. Bryan, New Orleans, for defendant-appellant.
    Before SAMUEL, LEMMON and SCHOTT, JJ.
   SAMUEL, Judge.

Defendant appeals from a judgment awarding plaintiff the sum of $171.62 for 25 weeks in workmen’s compensation for a residual disfiguring facial scar and $250 in attorney’s fees.

The issues before this court are: (1) Whether the scar was compensable under the provisions of LSA-R.S. 23:1221(4)(p); and (2) whether defendant can and should be cast for attorney’s fees.

Plaintiff, a school teacher employed by the defendant, was injured during the course and scope of her employment when she went to a window to speak to a student outside of the building. Thinking it was open, which it was not, she attempted to put her head through the window, shattering the glass. It is conceded that plaintiff has a facial scar as a result of the incident. The trial court found as a fact that plaintiff has a visible scar which does “seriously permanently disfigure plaintiff aesthetically” and that, based upon medical testimony, time will not completely erase the scar concerning which an operation is not recommended.

Dr. G. W. Hoffman, a plastic surgeon, evaluated plaintiff’s injury for the defendant. After seeing her on March 17, 1977 for the injuries sustained on October 28, 1976, he testified: She had a well healed 3.5 centimeter (about l!/2 inch) scar on the right forehead, flat, not red, faint. The scar looked somewhat better to the doctor at the time of trial. Since the scar runs horizontally he considered it in a good 'position as frowns run horizontally. He considered it “a very nice horizontal scar, slightly diagonal” and agreed plaintiff will never be completely rid of the scar. He thought it would fade but would always be visible. He did not recommend surgery and did not consider the scar materially disfiguring.

Statutory authority for compensation for facial disfigurement is found in LSA-R.S. 23:1221(4)(p), which provides in pertinent part:

“(p) In cases not falling within any of the provisions already made, where the employee is seriously permanently disfigured about the face or head, or where the usefulness of a physical function is seriously permanently impaired, the court may allow such compensation as is reasonable and as in proportion to the compensation hereinabove specifically provided in the cases of specific disability, not to exceed sixty-five per ceAtum of wages during one hundred weeks.” LSA-R.S. 22:1221(4)(p).

It is well settled that in order to recover for facial disfigurement under the above statute the injury must be materially disfiguring and permanent in nature. Appellant argues a faint and fading scar does not constitute compensable serious permanent disfigurement.

While appellant’s doctor did not consider the scar materially disfiguring, it is clear the trial court did not agree with the conclusion that the plaintiff had “a very nice . . scar” but did agree with the conclusion that the scar would be permanent. Having seen the scar for himself, the trial judge did not commit error in disregarding that portion of the doctor’s conclusion that the scar was not materially disfiguring.

After making his own evaluation, the trial judge may accept or reject an opinion expressed by any medical expert, depending on how impressed he is with the qualifications, credibility and testimony of that expert. In short, he is obliged to evaluate the testimony of a medical witness according to the same rules applicable to other witnesses.

We find no abuse of discretion in the award for compensation for 25 weeks, or one-quarter of the maximum award the trial court could have given. The award obviously was based upon the judge’s inspection and consideration of plaintiff’s disfigurement and we are unable to make such an inspection.

Relative to the award of attorney’s fees, appellant argues it has sovereign immunity from those charges, or alternatively, no fees are due because the rejection was not arbitrary and capricious.

Since the doctrine of sovereign immunity has been first judicially and later constitutionally abrogated, we do not agree defendant is exempt from penalties by R.S. 23 ¡1201.2(A) if it has been arbitrary and capricious in its refusal to pay. However, that refusal in the instant case was based upon a medical report submitted to defendant by Dr. Hoffman, its medical expert. Based upon that report, which indicated no compensation was due, we do not find defendant’s refusal to have been arbitrary or capricious. Therefore, no attorney’s fee or penalty can be assessed against the defendant.

For the reasons assigned, the judgment appealed from is amended only insofar as it awards the $250 attorney’s fee and that award is set aside. As thus amended, and in all other respects, the judgment is affirmed.

AMENDED AND AFFIRMED.

      . Templet v. Travelers Insurance Company, La. App., 278 So.2d 805; Dykes v. North River Insurance Company, La.App., 270 So.2d 329; Ousley v. Employers Mutual Liability Insurance Company of Wisconsin, La.App., 121 So.2d 378.

      . See Canter v. Koehring Company, La., 283 So.2d 716.

      . Jennings v. Halliburton Co., La.App., 346 So.2d 268; Matirne v. Wilson, La.App., 336 So.2d 960; Touchet v. Fidelity and Casualty Co. of New York, La.App., 264 So.2d 752.

      . Frame v. Majors, La.App., 224 So.2d 65; Williams v. Southern Advance Bag & Paper Company, La.App., 87 So.2d 165.

      . Article 12, Sec. 10(A), La.Const.1974; Darville v. Associated Indemnity Corporation, La., 323 So.2d 441; Board of C. of P. of New Orleans v. Splendour S. & E. Co., La., 273 So.2d 19; see also Segura v. Louisiana Architects Selection Bd., La., 362 So.2d 498.

      . Christophe v. Southern Bridge Company, La. App., 250 So.2d 822; Veillion v. Knapp & East, La.App., 158 So.2d 336; Darden v. Henry E. Johnson, Inc., La.App., 145 So.2d 75; Stogner v. American Motorists Insurance Company, La. App., 123 So.2d 655.