author: PONDER, Judge.

text:
    Vernon B. BETSCH v. STATE of Louisiana et al.
    No. 11635.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.
    Rehearing Denied Dec. 28, 1977.
    Writ Refused Feb. 17, 1978.

      Cyrus J. Greco, Baton Rouge, of counsel for plaintiff-appellant, Vernon R. Betsch.
    Thomas H. Mutuschka, Baton Rouge, of counsel for defendants-appellees, State of Louisiana, et al.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Plaintiff, an Angola inmate, has appealed a judgment dismissing his claim for damages for injuries resulting from an attack by a fellow inmate.

The issue is the negligence of the State in having inadequate facilities and insufficient personnel and in not preventing the attack upon plaintiff.

We affirm.

Plaintiff prior to his transfer to Angola had testified in Federal Court about prison conditions in Jefferson Parish. Thereafter he had been assaulted by two co-prisoners. While plaintiff was serving food in an Angola mess line, a fellow inmate, Clyde Fox, attempted to get more food than allowed and plaintiff refused. However, when the guard left, he told Fox that the latter could have more. The same day Fox armed himself with a two-and-one-half to three foot pipe. Late that afternoon, Fox ran down the stairs of the dormitory, struck plaintiff with the pipe, causing him to fall the remainder of the way, and continued to strike him, with resulting serious injuries.

The argument that the State was negligent because of inadequate facilities and insufficient personnel to protect plaintiff is based on the holding of the Court in Breaux v. State, 314 So.2d 449 (1st Cir., 1975). However, the Supreme Court in Breaux v. State, La., 326 So.2d 481 (1976), refused to accept the broader rule. See also, Jones v. State, Through the Department of Institutions, 346 So.2d 807 (1st Cir., 1977), writ refused, La., 350 So.2d 671 (1977).

The applicable rule of law in Parker v. State, La., 282 So.2d 483 (1973), was reaffirmed by the Supreme Court in Breaux:

“A penal institution is not an insurer of an inmate against attacks by other inmates. The standard is that of reasonable or ordinary care. The majority rule is that in order to hold the penal authorities liable for an injury inflicted upon an inmate by another inmate, the authorities must know or have reason to anticipate that harm will ensue and fail to use reasonable care in preventing the harm. St. Julian v. State, La.App., 98 So.2d 284 (1957); 60 Am.Jur.2d, Penal and Correctional Institutions, § 17, p. 821 (1972); 72 C.J.S. Prisons § 13, p. 866; Annot., Prison-Assault by Prisoner, 41 A.L.R.3rd 1021, 1028-1029 (1972).”

Plaintiff contends that the penal authorities had at least constructive notice of the plaintiff’s danger and failed to place him in protective custody, and that the guards were negligent in not discovering the weapon on the assailant.

Plaintiff’s point that he was in danger is based upon the Jefferson Parish incident. However, there is no proof of any connection between that incident and this attack, except some vague testimony of two prisoners from Jefferson Parish being in the camp with plaintiff. The evidence shows that Camp H was considered among the safest places at Angola, and that plaintiff, himself, was unaware of any possible repercussion from the Jefferson Parish incident. Thus, there is sufficient evidence in the record to support the trial court’s opinion and we should not substitute our own, Billiot v. Bourg, La., 338 So.2d 1148 (1976).

Plaintiff asserts that the prison guards should have known of the incident in the mess hall and should have discovered that the assailant had armed himself. However, the evidence shows that Fox actually got his extra portion of food and that plaintiff did not report the incident to anyone. There is some discrepancy in regard to the pipe being seen. One witness testified that while outside the dormitory most of the afternoon, he noticed no pipe in the attacker’s possession. Another said he saw it only immediately before the attack. . There was no manifest error in the trial court’s findings. Billiot, supra.

Plaintiff also relies on LSA-R.S. 15:851 to argue that the penal authorities were negligent in placing plaintiff in the camp where he was injured. The statute’s protection was meant for young, short-term, first offenders. We agree with the trial judge’s holding that this 30 year old first offender sentenced to ten years in prison for manslaughter does not meet the requisites of the statute.

Plaintiff has failed to prove that he was subjected to cruel and unusual punishment.

The judgment appealed from is affirmed at plaintiff’s cost.

AFFIRMED.

      . LSA-R.S. 15:851
      “All persons sentenced to the penitentiary shall be confined in the state penitentiary at Angola on state farms, quarter boats or other suitable quarters. All young short-term prisoners who are first offenders shall be at all times segregated from the older prisoners who are second offenders, and shall at all times be confined in separate camps, farms, quarter boats, or other quarters.”


source: Caselaw Access Project

author: EDWARDS, Judge.

license: Public Domain

text:
    FOREMOST-McKESSON, INC. v. F. C. DOYAL, Administrator of the Division of Employment Security, Inc.
    No. 11643.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.
    Rehearing Denied Dec. 28, 1977.
    Writ Refused Feb. 10, 1978.

      Robert R. Rainer, Baton Rouge, of counsel, for plaintiff-appellee, Foremost-McKes-son, Inc.
    James A. McGraw, Baton Rouge, of counsel, for defendant-appellant, F. C. Doyal, Administrator of the Division of Employment of Security, etc.
    Francis M. Bates, in pro per.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

The Administrator of the Office of Employment Security appeals pursuant to LSA-R.S. 23:1634 from a judgment of the district court which disqualified Francis M. Bates from receiving unemployment compensation benefits.

The claimant, Bates, a truck driver, who was employed by Foremost-McKesson, Inc., was discharged on April 5, 1974 because of a traffic accident in which he was involved. Bates thereafter filed a claim for unemployment compensation benefits. His claim was denied because it was found that he was discharged for misconduct connected with his employment. Bates requested and received a hearing before an appeals referee, who concluded that “the claimant’s separation was at the convenience of the employer and under non-disqualifying conditions.” Foremost-McKesson appealed to the Board of Review, which affirmed the referee’s decision. Foremost-McKesson then sought judicial review and obtained a remand of the appeal in order for additional testimony to be taken. The Board, after considering the additional testimony, affirmed its previous ruling, and returned the appeal to the district court. The district court, after reviewing the entire record, reversed the Board’s decision and declared Bates disqualified under LSA-R.S. 23:1601(2).

The salient facts found by the referee and accepted by the trial court indicate that Bates was employed by Foremost-McKesson for over eight and a half years. He was involved in an accident on March 27, 1974, while driving a company truck and acting within the course and scope of his employment. The accident occurred at the intersection of Louisiana highways 29 and 107 near Cottonport, Louisiana. Bates was traveling behind a car driven by a Mr. Cooper and was driving at approximately 25 m. p. h. When Cooper stopped at the yield sign at the intersection to allow an oncoming vehicle to pass, Bates was unable to stop his truck in his lane without hitting the Cooper vehicle and swerved into the oncoming lane where the collision occurred.

Substantial property damage to the company truck as well as property damage to the other vehicle and personal injuries to ■ the occupants of the other vehicle resulted from the accident. Bates received and did not contest a traffic citation for reckless driving.

Based on the evidence and the recognized legal presumption that a motorist involved in an accident in the wrong lane of traffic is negligent, the district court found that the accident was caused by Bates’ negligence and resulted in serious damage to company property. The district court also found that Bates and Foremost-McKesson had stipulated between themselves, by virtue of the applicable union collective bargaining agreement, as to what conditions should be cause for dismissal. The district court held that based on the standard of conduct agreed upon by the parties Bates was discharged for cause amounting to misconduct connected with his employment and consequently he was disqualified to receive compensation benefits.

The administrator contends that the district court erred:

(1) in finding that Bates was negligent in causing the accident; and

(2) in applying the terms of the collective bargaining agreement to determine if Bates was discharged under disqualifying circumstances.

The evidence in the record indicates that Bates was involved in an accident while he was in the wrong lane of traffic. Further, there is no evidence offered by Bates which satisfactorily rebuts the legal presumption of negligence. Under these circumstances, the district court correctly found that Bates was negligent. See Simon v. Ford Motor Company, 282 So.2d 126 (La.1978).

Accordingly, there is no merit in the Administrator’s first contention of error.

However, we find that the second contention is well founded.

In force at the time of the accident was an agreement between Foremost-McKesson and General Truck Drivers, Chauffeurs, Warehousemen and Helpers, Local 270 of which Bates was a member. Article VII of this agreement provided in pertinent part:

DI SCIPLINE-GRIE VAN CES-ARBITRATION
“The Company shall not discipline or discharge any employee without just cause and shall give at least one warning notice of the complaint in writing against such employee, such warning notice shall be retained for one year, except that no warning notice need be given to an employee before he is discharged if the cause of such discharge is dishonesty, use of alcohol beverages while on duty, reporting to work under the influence of alcohol, narcotics, “RX” stimulants or hypnotics, recklessness or negligence resulting in a serious accident or serious damage to company property, carrying of unauthorized passengers or failure to report an accident. Violation of other Company rules may also be subject to discipline or discharge without warning if the offense warrants such action . . ”

An examination of this agreement reveals that although it describes certain conduct which will warrant the discharge of an employee, it does not establish a standard of conduct at variance with the criteria established by law for determining an employee’s eligibility vel non to receive unemployment benefits. The agreement does not attempt to define what will constitute “misconduct connected with the employment” within the context of LSA-R.S. 23:1601(2).

We therefore find that the district court erred in holding that Article VII, which provides the criteria to be used for discharging an employee, also provides the standard for determining if an employee is “disqualified” under LSA-R.S. 23:1601(2) from receiving compensation benefits.

We find inapposite the two cases, Brown v. Southern Airways, Inc., 170 So.2d 245 (La.App. 4th Cir. 1964) and Cooper v. Doyal, 205 So.2d 59 (La.App. 4th Cir. 1967), relied upon by Foremost-McKesson. The Court in those cases found that employees (stewardesses) who had contracted and agreed to resign if they got married, and subsequently resigned or were discharged when they married, were disqualified under LSA-R.S. 23:1601(1) because they voluntarily left their employment without good cause. Bates, in the instant ease, did not contract or agree to resign should he be involved in a traffic accident, nor did he voluntarily leave his employment. On the contrary, Bates was discharged by his employer for a single act of negligence. Accordingly if Bates is indeed disqualified to receive unemployment benefits, such disqualification rests under LSA-R.S. 23:1601(2) and does not fall within the ambit of LSA-R.S. 23:1601(1) and the above cited cases.

We now must determine, independent of the collective bargaining agreement, whether Bates was discharged for misconduct connected with his employment, and consequently disqualified to receive unemployment benefits.

The phrase “misconduct connected with the employment” was defined in Horns v. Brown, 243 La. 936, 148 So.2d 607 (1963), where the Supreme Court stated at 148 So.2d pages 608 and 609:

“. . .In those cases the courts uniformly enunciated the same interpretation as has been adopted by the tribunals of other jurisdictions having similar statutes. A concise statement of that interpretation is set forth in 48 American Jurisprudence, verbo Social Security, unemployment Insurance, etc., Section 38, page 541, thusly: “Misconduct within the meaning of an unemployment compensation act excluding from its benefits an employee discharged for misconduct must be an act of wanton or wilful disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of standards of behavior which the employer has the right to expect of his employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligation to the employer. * * *”

Applying that standard to the instant case, though Bates is presumed negligent, this single act of negligence does not come close to being “of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to the employer.” See Williams v. Brown, 157 So.2d 237 (La.App. 3rd Cir. 1963).

We find that Foremost-McKesson has not met its burden of proving misconduct. Gardere v. Brown, 170 So.2d 758 (La.App. 1st Cir. 1964).

It was noted in Turner v. Brown, 134 So.2d 384, 386 (La.App. 3rd Cir. 1961): “Unemployment compensation is not paid primarily to reward the employee or to punish the employer, but rather to protect the stability of the state and of the family.” We believe this purpose is served in the instant case.

For the above reasons, the judgment of the district court is reversed; and judgment is herein rendered decreeing that the claimant Francis M. Bates is entitled to unemployment compensation benefits. All costs are to be paid by the appellee, Foremost-McKesson.

REVERSED AND RENDERED.

      . LSA-R.S. 23:1601
      An individual shall be disqualified for benefits:

      (2) If the administrator finds that he has been discharged for misconduct connected with his employment. Such disqualification shall continue until such time as the claimant (a) can demonstrate that he has been paid wages for work equivalent to at least ten times his weekly benefit amount following the week in which the disqualifying act occurred and (b) has not left his last work under disqualifying circumstances. In addition, if the administrator finds that such misconduct has impaired the rights, damaged or misappropriated the property of or has damaged the reputation of a base period employer, then the wage credits earned by the individual with the employer shall be canceled and no benefits shall be paid on the basis of wages paid to the individual by such employer, (emphasis added).


author: SARTAIN, Judge.

text:
    Michael B. DORSEY, Plaintiff-Appellant, v. ADMINISTRATOR, LOUISIANA DEPARTMENT OF EMPLOYMENT SECURITY and Sears, Roebuck & Company, Defendants-Appellees.
    No. 11657.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.
    Rehearing Denied Dec. 28, 1977.
    Writ Refused March 3, 1978.

      Michael B. Dorsey, in pro per.
    James A. McGraw, Baton Rouge, of counsel for defendant-appellee Louisiana Department of Employment Security.
    Clifton 0. Bingham, Jr., Jimmie R. Major, Major & Bingham, Baton Rouge, of counsel for defendant-appellee Sears, Roebuck and Co.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   SARTAIN, Judge.

Plaintiff brought this action for judicial review of a decision of the Board of Review of the Louisiana Department of Employment Security that he was ineligible for unemployment compensation. The trial court upheld the decision of the Board. Judicial review in questions such as this is limited to questions of law unless the evidence is insufficient to support the findings of fact of the administrative agency or the evidence shows that a fraud has been perpetrated. R.S. 23:1634.

An employee is disqualified from benefits if he is discharged for “misconduct connected with his employment.” R.S. 23:1601(2). This means that the reason for discharge must be either

“. . . an act of willful or wanton disregard of the employer’s interest; a deliberate violation of the employer’s rules; a disregard of standards of behavior which the employer has a right to expect of his employee; or negligence in such degree or recurrence as to manifest culpability, wrongful interest, or evil design, or show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to the employer.” Atkins v. Doyal, 274 So.2d 438, 440 (La.App. 1st Cir. 1973).

In the instant case plaintiff’s employer, Sears, Roebuck & Company, alleged that plaintiff was “Released for insubordination, refusal to respond to reasonable instructions of store manager.” Either of these reasons is sufficient grounds to deny unemployment benefits. Rankin v. Doyal, 223 So.2d 214 (La.App. 2d Cir. 1969).

Dorsey, who was working as a furniture salesman for Sears, was asked by his department manager to get his coat and put it on. He refused to do so. This refusal was reported to the furniture department supervisor and the personnel manager. The claimant was then requested to report to the office of the personnel manager. He refused, stating he was waiting on a customer. Later the personnel manager went to the furniture department where he found that the claimant was not waiting on customers but rather was standing around. The claimant was then told to report to the store manager’s office, but he refused. Shortly thereafter Dorsey did report to the store manager’s office but he refused to enter and discuss the matter without a lawyer. He likewise would not tell the manager a time when he could return with his lawyer. Dorsey then left the store, it being closing time. During this series of events the claimant was very discourteous and abusive to his superiors.

The next day Dorsey went to the manager’s office upon reporting to work. However, he again refused to enter and discuss the matter without an attorney. The manager attempted to discuss the situation with him but he turned and walked away. The store manager followed him and asked him to stop and return to the office. When he refused, he was informed that his employment was terminated.

These facts as found by the Referee and adopted by the Board of Review are supported by sufficient evidence in the record. We must accept them.

We believe that the Referee was likewise correct in holding that these facts show refusal to follow reasonable instructions and insubordination sufficient to support denial of benefits. Jackson v. Doyal, 198 So.2d 469 (La.App. 2d Cir. 1967). It has been stated that “a single hotheaded incident cannot be considered the type of premeditated and seriously improper conduct * * * sufficient to deny unemployment compensation benefits.” Johnson v. Brown, 134 So.2d 388 (La.App. 3rd Cir. 1961). We believe the better rule to be that even a single violation can sustain a denial of benefits. One must look to “the nature of the violation with due consideration of the factors which enter into the proper conduct of the employer’s work and business.” Jackson v. Doyal, 198 So.2d 469, 472 (La.App. 2d Cir. 1967). We find that the violations here, which included insubordination on the sales floor in the sight of customers, was sufficiently serious. In any event, claimant’s actions, which extended over two days, were more than “a single hotheaded incident.”

The claimant also makes allegations that the reasons for his discharge were not his failure to wear a coat and his insubordination. He avers that these were only excuses; the real reasons were that he had given information to the Attorney General’s office on bait and switch schemes of Sears and that personal animosity with racial overtones existed between him and other staff members. It is, of course, true that the employer has the burden of proving misconduct by a preponderance of the evidence. Gardere v. Brown, 170 So.2d 758 (La.App. 1st Cir. 1964). Here, however, Sears has sufficiently shown that its reasons for the dismissal were as alleged. Claimant’s self-serving statements as to the causes surrounding his dismissal were not sufficient to outweigh the consistent testimony of Sears’ employees in the mind of the Referee. His findings that the other employees were being truthful and the Board’s affirmance of his findings are certainly adequately supported by the evidence.

In his brief, claimant also asserts that he was deceived by the department into not securing the assistance of an attorney for the Referee’s hearing. But the record shows clearly that the claimant was informed that although he was not required to be represented by an attorney, he could be so represented if he wished. We do not understand how such a statement can be classified as deceptive.

Charges were also made that the hearings were conducted unfairly and that the Referee had private talks with Sears’ attorney. A careful review of the transcript of the hearing convinces us that it was conducted fairly. Private talks with the Referee are certainly prohibited. R.S. 49:960 A. But even if they did occur there is no allegation that a fraud had been perpetrated or even that the talk influenced the Referee. In such a situation the trial court was correct in affirming the decision of the Board of Review.

The judgment is affirmed at appellant’s costs.

AFFIRMED.


author: CHIASSON, Judge. BLANCHE, Judge,

text:
    Doris M. BAHAM, Plaintiff and Appellee, v. Carolyn PATTERSON, Donald F. McGowan, Cotton’s Inc., United States Fidelity & Guaranty Company and Government Employees Insurance Company, Defendant and Appellant.
    No. 11612.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 23, 1977.
    As Amended on Denial of Rehearing Dec. 28, 1977.
    Writ Refused Feb. 10, 1978.

      Robert S. Cooper, Copper & Cooper, Baton Rouge, for plaintiff and appellee.
    Anthony J. Clesi, Jr., Lane & Clesi, Baton Rouge, for defendant and appellant.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   CHIASSON, Judge.

Defendants, Donald McGowan, Cotton’s Inc., and United States Fidelity & Guaranty Company (U.S.F. & G.), appeal a judgment rendered against them and defendant Carolyn Patterson (in absentia), in solido, in the amount of $35,000.00 for the wrongful death of plaintiff’s minor son, Lonnie Sherman Sullivan, who was fatally injured as a result of an automobile accident on U.S. Highway 190 in Livingston Parish. Also named as a defendant was the Government Employees Insurance Company (GEICO) against whom suit was dismissed. Plaintiff, Doris M. Baham, did not appeal the dismissal of GEICO but did answer the appeal herein seeking an increase of $2,295.86 to cover the funeral expenses, amounting to a total of $37,295.86 in damages. The judgment is therefore final as to GEICO and Carolyn Patterson, who did not file an appeal.

On the night of February 26, 1973, a Chevrolet pickup truck owned and operated by defendant, Carolyn Patterson, was stalled in the eastbound lane. Accompanying Carolyn was a man and a young boy. At the same time, defendant, Donald F. McGowan, was driving a 1966 Ford tractor-trailer rig owned by his employer, Cotton’s Inc., also in an easterly direction. Likewise, at the same time, plaintiff’s minor son, Lonnie Sullivan, was operating a 1969 Oldsmobile in a westerly direction.

At some time shortly before midnight the tractor-trailer rig, driven by McGowan, came upon the Patterson vehicle in the eastbound lane from the rear. Unable to bring the tractor-trailer rig to a stop in time to prevent a rear-end collision with the Patterson vehicle, McGowan pulled into the westbound lane and upon seeing the oncoming Sullivan vehicle, proceeded to the westbound shoulder. While the McGowan vehicle was partly on the westbound shoulder and partly in the westbound lane, the right front of said vehicle came into contact with the right side of the Sullivan vehicle. Prior to impact the Sullivan vehicle had been traveling in the westbound lane and the driver thereof had applied his brakes and skidded for 154 feet on the asphalt portion of the highway and thereafter had traveled with two wheels on the westbound shoulder for approximately 131 feet prior to the collision with the McGowan vehicle. After the collision with the McGowan vehicle the Sullivan vehicle deflected to the left and struck the left front of the Patterson vehicle which was still in the eastbound lane, 20 feet from the point of first impact, and then proceeded across the westbound lane of travel and came to rest against a tree, about 180 feet from the general area of the collision.

At the time of the accident the weather was clear and the road surface was dry. At the place where this accident occurred, Highway 90 is an asphalt two-lane highway 24 feet wide running generally in an east-west direction and is straight and level for several miles. The shoulder on either side of the highway is graveled and about 10 feet wide.

The record reflects that the Patterson vehicle, which was overloaded and in extremely poor condition, had been stalled in the eastbound lane for more than two hours with inoperable tail lights, and that no effort had been made on the part of its occupants to flag, flare or warn traffic of the stalled vehicle or to remove it from the eastbound lane. The Patterson vehicle, however, had the word “Chevrolet” across the rear of the pickup truck in large reflec-torized letters and a Louisiana license plate which was also reflectorized.

In its reasons for judgment the trial court stated:

“Although the court feels that Carolyn Patterson was grossly and primarily negligent, some negligence is found on the part of defendant, McGowan, and the court finds an absence of contributory negligence on the part of the deceased Lonnie Sullivan.”

Defendants contend that the trial court erred in finding Donald F. McGowan negligent and, alternatively, that the trial court erred in failing to find Lonnie Sullivan guilty of contributory negligence. They assert that the record contains no evidence that Donald McGowan was speeding, no evidence that he was not keeping a proper lookout, and no evidence that he could have avoided the accident.

In Craker v. Allstate Insurance Company, 259 La. 578, 250 So.2d 746 (1971), the Supreme Court rejected the so-called “range of vision” or “assured clear distance” rule as the standard of care to be exacted of the nighttime driver as “unworkable and unrealistic with modern vehicles on modern highways.” The Court instead opted for “. . . the broad requirement of reasonableness, a formula of negligence where there are few absolute rules and one requiring a careful consideration of all circumstances surrounding each case.” The First Circuit has followed this new standard of care. Welch v. Mayhall, 325 So.2d 741 (La.App. 1st Cir. 1976); Chaisson v. J. Ray McDermott & Co., 324 So.2d 844 (La.App. 1st Cir. 1975).

Additionally, since McGowan’s vehicle collided with the Sullivan vehicle, which was in its proper lane, McGowan must exculpate himself from any fault, however slight, which contributed to the accident to be free from liability. Simon v. Ford Motor Company, 282 So.2d 126 (La.1973); Tillman v. Canal Insurance Co., 305 So.2d 602 (La.App. 1st Cir. 1974).

McGowan’s position is that he was maintaining a proper lookout, was not speeding, and was prevented from timely seeing the stalled Patterson vehicle because his vision had been impaired by the headlights of an oncoming vehicle which preceded the Sullivan vehicle; that he entered into the westbound lane to avoid a rear-end collision with the stalled vehicle because the eastbound shoulder was occupied by two persons who had been pushing the stalled vehicle from the rear, but who had run to the shoulder of the road when they realized that he would not be able to stop his vehicle before reaching them.

The speed limits for trucks at the time of the accident was 50 miles per hour and for automobiles 60 miles per hour. The vehicle McGowan was operating was equipped with a device that records speeds and stops, if any, that the vehicle makes, which device is commonly referred to as a “tattletale.” Although McGowan’s testimony was that he was driving 50 miles per hour prior to the accident and had reduced his speed to 40 miles per hour moments before the accident, the “tattletale” graph was not produced. The graph had been specifically sought by the plaintiff but was not produced, and the only explanation given at the trial for the non-production of the graph was that the company no longer had it. The best evidence available as to the speed of the McGowan vehicle would have been the graph on this vehicle. A presumption of negligence is therefore raised because of defendants’ failure to produce this graph. We, therefore, conclude that the trial judge was not in error in holding that McGowan was guilty of some negligence which contributed to the accident.

With respect to the defendants’ contention that Lonnie Sullivan was guilty of contributory negligence, it must first be observed that such a plea is an affirmative defense with the burden being on the party pleading it to prove, by a preponderance of the evidence, that the acts or omissions complained of were a proximate cause of the accident. La.C.C.P. Art. 1005; McInnis v. Fireman’s Fund Insurance Company, 322 So.2d 155 (La.1975); White v. State Farm Mutual Automobile Ins. Co., 222 La. 994, 64 So.2d 245 (1953).

Defendants contend that Lonnie Sullivan could have avoided the accident had he not been operating his vehicle at an excessive and negligent rate of speed. The defendants offered the testimony of two experts to estimate the speed at which Sullivan’s vehicle was traveling prior to the first impact with the cab of the tractor-trailer rig. One of the experts estimated that the Sullivan vehicle was traveling at a minimum speed of 87 miles per hour prior to the first impact and that the Sullivan vehicle could have stopped in time to avoid the accident even had it been traveling 75 miles per hour. The other expert estimated that the Sullivan vehicle was traveling at a speed in excess of 80 miles per hour and that the Sullivan vehicle could have stopped in time to avoid the accident even had it been traveling at the rate of 70 miles per hour.

The trooper in charge of the accident investigation estimated the speed of the Sullivan vehicle at 60 to 70 miles per hour, while the trooper assisting him felt that the vehicle was traveling in the 70 miles per hour bracket, give or take 5 miles per hour.

The best calculations of defendants’ experts as to the speed of the Sullivan vehicle were based on the assumption of continuous braking from the point where the skid marks began until the point of impact with the McGowan vehicle. The speed estimates of the officers were based in part on the total distance traveled and damages sustained.

The only eye witness who testified was McGowan and he could not estimate the speed of the Sullivan vehicle. He was of the opinion that had the Sullivan vehicle continued in a path off of the westbound shoulder, it would have collided head-on with the cab of McGowan’s truck. He further testified that the Sullivan vehicle appeared to be trying to re-enter the westbound lane and pass between his truck and the Patterson vehicle. The investigating officer testified that there was a displacement of gravel where the Sullivan vehicle left the road, indicating that Lonnie was still braking at that point; that from that point it diminished and became a turning movement with the wheel itself turned at a different angle displacing the gravel over to one side.

One of defendants’ experts stated that as soon as the locked wheel got onto the gravel it quit laying the black skid marks and it made an arch, which arch continued around and re-entered the highway. Further, he would have to concede that acceleration was possible during the 131 feet when the Sullivan vehicle was partly on the highway and partly on the shoulder, even though he was of the opinion that it was not very probable, and that the only really definitive physical finding to work with was the 154 feet of skid marks.

This evidence furnished a reasonable basis for concluding that Lonnie did not brake for the entire distance before the impact and that in his attempts to maneuver on the shoulder or while trying to get between the . two vehicles, he may have accelerated his vehicle. Lonnie, at first, apparently was maneuvering to reach the north shoulder and clear the westbound lane for the McGowan vehicle and then was confronted with the McGowan vehicle heading toward the same area. He probably could not estimate the speed of the oncoming truck just like McGowan could not estimate Lonnie’s speed. However, the physical evidence does show that Lonnie did take evasive action and negates the application of brakes continuously to the point of impact. Expert tests based upon assumptions not proven or upon variable factors not established are of no value.

We, therefore, cannot say that the trial court erred in holding that defendants had failed to carry their burden of proving the contributory negligence of Lonnie Sullivan by a preponderance of the evidence.

As to plaintiff’s contention that the amount of the award should be increased to cover the funeral expenses, there is nothing in the record to show that this item was not taken into consideration by the trial court. If it was merely an oversight by the trial judge as plaintiff contends, there exists adequate remedy at law to have corrected such error in the District Court.

The judgment of the trial court is affirmed.

AFFIRMED.

BLANCHE, Judge,

dissenting.

There is no proof in the record of the truck’s excessive speed. The majority presumes it because of defendant’s failure to produce the “tattletale” graph. This presumption as to excessive speed is the “some negligence” which the trial judge concluded to be a contributory cause of the accident.

In my view, the “speed” of the truck was not a cause-in-fact of the accident. The truck driver was able to bring his truck to a stop twenty feet past the stalled vehicle, and braking distances become irrelevant when one is presented with the emergency of a stalled vehicle in the highway. For example, had the driver of the truck noticed the stalled vehicle twenty-one feet farther away, he would have been able to avoid the accident.

A motorist traveling at night is not charged with the duty of guarding against striking an unexpected or unusual obstruction which he had no reason to anticipate that he would encounter on the highway. The occupants of the distressed vehicle which had been blocking the highway for at least two hours had a duty to warn oncoming traffic of the presence of the stalled vehicle. Their failure in this regard was the cause-in-fact of the accident and not the truck driver’s unknown speed.

Donald McGowan, the truck driver, described what happened as follows:

“Q Now, would you tell me in your own words what happened when the accident occurred?
“A Well, I was driving along and I passed — a vehicle was approaching me, and before the vehicle got actually to me, he threw his bright lights on me and as soon as I passed the vehicle I threw my bright lights up and that’s — at that point is when I seen the pickup truck. There was a man and a boy pushing the truck, and a woman driving it — steering it, and I tried to stay in my lane as long as I could.
“When they saw me approaching and realized I couldn’t stop, they ran to the right shoulder of the road and stood there. When I decided that I didn’t have enough room to stop and didn’t have enough time, I couldn’t go off the right shoulder without striking the people, and I decided to go off the left shoulder of the road and try to get the truck off to the ditch.” (Exhibit P-1, pp. 11-12)

It appears to this writer that the truck driver was presented with the dilemma of whether to hit the stalled truck, the truck occupants on the right side of the road or to cross the highway to the opposite side where, at the time, he perceived that there was no risk. In crossing over to the left, he, in turn, created an emergency to young Sullivan resulting in his tragic death.

This writer believes that in the light of the circumstances McGowan acted reasonably in attempting to avoid the accident.

In conclusion, the record is barren of any evidence of McGowan’s speed, there is no evidence that he failed to keep a proper look out, and there is no evidence that he could have avoided the accident. Therefore, plaintiff’s suit should have been dismissed.

For the above reasons, I respectfully dissent.


author: COVINGTON, Judge. CHIASSON, Judge,

text:
    LOUISIANA POWER & LIGHT COMPANY v. Vernon L. CALDWELL, Jr., et al.
    No. 11626.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 28, 1977.
    Rehearing Denied Dec. 28, 1977.
    Writ Granted Feb. 9, 1978.
    See also, La.App., 353 So.2d 1343.

      Eugene G. Taggart, New Orleans, Kenneth Watkins, Houma, for plaintiff and ap-pellee.
    John V. Parker, Baton Rouge, for defendants and appellants.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   COVINGTON, Judge.

Plaintiff, Louisiana Power & Light Company, seeks by expropriation a right-of-way of 100 feet in width in the nature of a servitude across the property, known as “Magnolia Plantation,” of defendants, Mr. and Mrs. Vernon L. Caldwell, Jr., and their two children, John and Albert Caldwell, for the purpose of constructing, operating and maintaining a 230 KV electric transmission line.

Defendants’ property comprises a large tract of land, containing about 2,000 acres, which is bisected by State Highway 311 (the old Thibodaux-Houma Road), and which is, for the most part, used for agricultural (sugar cane) purposes. The proposed servitude contains 29.07 acres and runs in an easterly-westerly direction across defendants’ property, having a width of 100 feet and extending across defendants’ property. The record reflects that the proposed servitude consists of 2.56 acres of wooded swamp; 16.44 acres of sugar cane field west of the state highway right-of-way; 1.11 acres of cultivated lands within existing rights-of-way; and 8.96 acres of sugar cane field and wooded area east of the state highway right-of-way.

The defendants filed exceptions, including want of citation, together with their answer, generally denying that the expropriation was for a public and necessary purpose, and demanding compensation to the full extent of their loss.

The trial judge overruled all exceptions, found that the expropriation of the right-of-way was for a public and necessary purpose, and rendered judgment adjudicating the right-of-way to the plaintiff, and fixing the defendants’ compensation at $50,743.50. The trial judge then denied defendants’ motion for new trial and claim for attorney’s fees. The defendants have appealed this judgment. We affirm.

The procedural question raised by the defendants-appellants, a declinatory exception for failure to issue and serve citation upon the defendants, is without merit. The record shows that each of the defendants was served with certified copies of the petition of expropriation, the order fixing the trial date, and the notice of trial issued by the clerk of court. The notice specifically summons the defendants to file their answer and to serve a copy of same on the plaintiff within 15 days after service of the notice. This procedure was in full compliance with the expropriation statute. LSA-R.S. 19:5. Appellants argue that LSA-C. C.P. art. 1201 requires “citation”, under penalty of nullity. We point out that appellants overlook the “Preliminary Statement” to the “Citation” Chapter of the Code of Civil Procedure. There, it is plainly stated that “special provisions of law providing for a particular mode of citation and service are not affected.” The notice of trial required by LSA-R.S. 19:5 is equivalent to citation, which, after all, is only a form of process summoning the defendant to take appropriate steps to defend himself. See Tenneco Inc. v. Earhart, 220 So.2d 109 (La.App. 3 Cir. 1969).

In addition to the assigned procedural error, the defendants assign as error the following: (1) the finding by the trial court that the proposed servitude was for a public and necessary purpose; (2) the awarding by the trial court of inadequate compensation; (3) the failure of the trial court to award proper severance damages; (4) the failure of the trial court to apportion properly the compensation; and (5) the refusal of the trial court to award the defendants attorney’s fees.

On the question of “public and necessary purpose,” the appellants complain that the trial court committed error in placing the burden of proof on the defendants, rather than the plaintiff, to show public necessity for the taking of the right-of-way. The record does not support appellants’ contention that the plaintiff was discharged from its burden of proving public necessity and public purpose. On the contrary, the record amply supports the conclusion that this taking was for a public and necessary purpose. The unrefuted testimony of Jerry Saacks, systems planning manager of Louisiana Power & Light Company, is that the particular transmission line will connect the plaintiff’s existing Thibodaux and Terre-bonne electric substations and complete the loop from the Waterford-Little Gypsy generation complex as part of the network whereby electric energy is delivered to customers; that the existing power lines will no longer provide reliable and adequate service to the area, and the new transmission line is needed to provide an additional and alternate supply of electricity from the generating complex. Mr. Saacks further testified that the new transmission line will serve a new electric substation that is planned for the foreseeable future. The new substation is to be located between the present Thibodaux and Terrebonne electric substations. F. M. Bauer, Jr., the transmission engineering supervisor in charge of designing, locating and constructing transmission lines and electric substations for the plaintiff, testified that he selected the proposed route with both the needs of the electric company and convenience of the landowners in mind, and that he followed natural boundaries and property lines as near as possible. Mr. Bauer further testified that he had considered the defendants’ request for a relocation of the line along and adjacent to the north-south and east-west pipeline, but that such relocation was unfeasible, since it would add a considerable distance to the length of the transmission line, increase the costs of construction and maintenance, and would take the transmission line beyond the area where the new substation was to be located. The defendants offered no evidence on the public purpose-necessity issue. In particular, the record contains nothing of any evidentiary value that the proposed servitude will in any way do violence to the State’s policy of conservation of land and preservation of the aesthetic quality of the environment as expressed in the new Constitution and implemented by legislative enactments. See La.Const. of 1974, Art. 9, Sec. 1; LSA-R.S. 40:2351. We, therefore, see no merit in the defendants’ contention that the plaintiff “acted arbitrarily, capriciously and in bad faith” in selecting the proposed servitude. We find that the proposed servitude will serve a definite public use and purpose as required by Article 1, Section 4 of the 1974 Louisiana Constitution.

We need answer the defendants’ objection to the choice of the route of the transmission line only by citing the case of Texas Eastern Transmission Corporation v. Bowie Lumber Company, 176 So.2d 735, 739 (La.App. 1 Cir. 1965), writ denied, 248 La. 385, 178 So.2d 663 (1965), wherein the Court stated:

“It is the rule in this State, and which prevails in all other jurisdictions that we [have] examined, that in expropriation of property, including servitude, rights of passage, and right of ways of the type here under consideration, the selection of a route by the expropriating authority or agency will not be disturbed or upset except upon showing by the party resisting the expropriation that the selection was made through fraud, bad faith or conduct or practices amounting to abuse of the privilege.
“There is the presumption present that the selection made by the expropriating authority is the best and most feasible.”

The new Constitution effects no change in this jurisprudential rule concerning selection of the location of a proposed servitude. The record in the case at hand does not show that the plaintiff is guilty of conduct which would vitiate its selection of the route of the transmission line.

Regarding compensation to the landowners for the proposed servitude, the defendants complain that the trial court did not compensate them to “the full extent” of their loss, as dictated by Article 1, Section 4 of the 1974 Constitution.

What this constitutional provision says is that “just compensation” must be paid to the landowner for the property taken, and that the trier of the question of “compensation” must fix the award at an amount which will pay the landowner “the full extent of his loss,” or leave him “in equivalent financial circumstances after the taking.” Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La.L. Rev. 1, 16 (1974).

In view of the constitutional provision, we believe that in fixing the amount of compensation for expropriated property the test remains “market value, based on the most recent comparable conventional sales of similar property, and the highest and most profitable use to which the property may be put in the foreseeable future, excluding remote and speculative value.” City of New Orleans v. O’Krepki, 162 So.2d 76 (La.App. 4 Cir. 1964), writ refused, 246 La. 345, 164 So.2d 350 (1964).

The plaintiff’s experts were Peter J. Tal-luto and Max J. Derbes, Jr., expert realtors-appraisers. They valued the land on an acreage basis. The market value of the property was determined by using comparable sales of similar property. They considered the best and highest use as sugar cane cultivation. It appears that the trial judge primarily based his award on the opinion of Mr. Talluto.

Mr. Talluto valued the property taken at $48,355.50. His valuation related to an analysis of the subject property as consisting of four classifications: wooded swamp, cultivated land, unencumbered land, and encumbered land. For that portion from the westernmost end of the right-of-way to a point marking a distinction of wooded swamp and cultivated area, he placed a fee value of $1500 per acre, and the servitude at 50% of fee value or $750 per acre. For the land in sugar cane cultivation, between the wooded swamp and the westerly edge of the state highway right-of-way, he placed the fee value at $1550 per acre, with the servitude at 75% of fee value, or $1162 per acre. From the easterly edge of the state highway right-of-way to the east end of the servitude, a fee value of $4000 per acre, with the right-of-way at 75% of fee value or $3000 per acre, was given. He placed a right-of-way value of 10% of fee value of $4000 per acre, or $400 per acre on those areas of the right-of-way which were already encumbered. As shown, Mr. Tallu-to found that the Caldwell’s would retain a certain percentage of the surface rights on that portion affected by the proposed servitude; therefore, he reached the percentages for the several classifications as set out above.

The fixing of such a percentage is a recognized way of arriving at the value of a servitude taken. In the case of Dixie Electric Membership Corporation v. Watts, 268 So.2d 128, 132 (La.App. 1 Cir. 1972), the Court observed:

“Where only a servitude or easement is expropriated and the landowner will continue to have some use of the property included within the right-of-way, the servitude taken shall be valued at a percentage of the fee value of the land and not at its full value. Central Louisiana Electric Company v. Fontenot, 159 So.2d 738 (La.App. 3rd Cir. 1964), and cases therein cited. Where the expropriation of the servitude completely destroys the suitability of the land for the purpose for which it is best suited, it is proper to award the landowner the full fee value even though merely a servitude is expropriated. However, each case should be decided on its own merits and not by some reference to an automatic percentage. Further, any percentage of fee used by the appraiser should be justified by the appraiser by reference to limitation of use of the property occasioned by the taking, considering particularly the highest and best use of the land and the specific use that could be made of the land at its highest and best use.”

Mr. Derbes, the other* expert appraiser, followed substantially the same valuation methods used by Mr. Talluto, and arrived at a total value only slightly below that fixed by Mr. Talluto. Mr. Derbes set a total value of $47,252.50 as the value of the right of way.

The defendants used Logan Babin, Jr., a realtor-appraiser expert, to fix the valuation of the property taken. He also valued the land on an acreage basis and determined the market value of the land by using the comparable sales method. He considered the best and highest use of the property to be residential subdivision. He considered that the servitude taking would amount to 100% of the property, with the landowner retaining no beneficial use after the taking. He would give an award of $61,640.00 to Albert and John Caldwell for the tract located west of the state highway, and $42,880.00 to Mr. and Mrs. Caldwell as the total value of the part taken east of the state highway.

In the instant ease, the trial judge fixed the award due the defendants at $50,-743.50, with $48,355.50 as compensation for the servitude, $500.00 as compensation for guy-wire sites, and $1,888.00 as severance damages. In expropriation cases, much discretion is granted the trial judge in weighing the testimony of experts. His finding of value, based on such evidence, will not be disturbed unless manifestly erroneous.

The defendants contend that the trial court erred in not relying upon the opinion of Mr. Babin, because he was “actively engaged in daily contact with the real estate market in this area. Under these circumstances, the opinion of the expert who is more familiar with the day to day buying and selling in the local market is to be preferred.”

In the case of State, Department of Highways v. Degueyterre, 326 So.2d 627, 629 (La.App. 3 Cir. 1976), writ denied, 330 So.2d 315 (La.1976), a similar argument was rejected, with the Court reasoning:

“We cannot accept this argument. It is certainly true that an appraiser’s familiarity with the locality is a factor to be considered by the trial judge in weighing the testimony of an appraiser. State, Department of Highways v. McPherson, 261 La. 116, 259 So.2d 33 (1972). However, there are many other factors to be considered as well and the trial judge need not accept the opinion of the appraiser who is familiar with the locality if, on the whole, he finds the testimony of the other appraisers to be more credible. His decision will not be overturned unless it is manifestly erroneous.”

The defendants strongly argue that the trial judge erred in not considering the property taken as having a residential subdivision purpose as its best and highest use. The evidence in the record of this case shows that the property has primarily been used for sugar cane cultivation. Nothing has been done to place this property in a residential subdivision classification. Thus, the defendants’ contention has no merit.

In Central Louisiana Electric Company v. Harang, 131 So.2d 398, 401 (La.App. 1 Cir. 1961), this Court pointed out:

“It is common knowledge that any tract of land wheresoever situated may be physically divided into residential plots or lots and subdivided irrespective of the demand for such property. However, potential subdivision use, to serve as the basis for establishing market value in an expropriation proceeding, must be shown to be reasonably prospective, as distinguished from remotely prospective, so as to remove said potential use or classification from the realm of guesswork, speculation and conjecture. If such potential future use is shown within the reasonably near future the owner is entitled to compensation on the basis of best and highest use for subdivision purposes even though the property affected be not in use for such purpose at the time of taking. However, if the potential (as, indeed, there is a potential in every case no matter how remote) is so indefinite or remote as to be predicated solely upon speculation and conjecture, it may not serve as the criteria of market value.”

In the instant case, the record supports the conclusion that the subject property’s use for residential subdivision purposes is “so indefinite or remote as to be predicated solely upon speculation and conjecture.” The trial court properly refused to accept this use as the criteria of market value. We find no manifest error committed by the trial judge.

As a part of their complaint against the adequacy of the compensation awarded, the defendants protest the trial judge’s failure to apportion the award between the parents and children. The defendants contend that the trial court erred in failing to recognize that there are now two separate tracts of land involved, and to award the children, Albert and John, the amount due for the right-of-way on the tract of land west of State Highway 311, and to award the parents the amount due for the other tract of land. We consider this of no moment, since the landowners appear to have consistently treated the Plantation as a sin--gle unit and to continue to deal with the Plantation as they did before the act of donation from parents to sons.

On the question of severance damages to the remainder of their property, the defendants complain of the inadequacy of the award for this item. The burden of proving severance damages rest with the landowner, who must establish such damages with legal certainty by preponderance of the evidence. Southwest Louisiana Electric Membership Corporation v. Lemon, 338 So.2d 367 (La.App. 3 Cir. 1976), writ refused, 340 So.2d 998 (La.1977). Such damages are not to be presumed, but must be established by the landowner, who must show by competent testimony that the land remaining has been diminished in value as a result of the taking. Southwestern Electric Power Company v. McCaskill, 307 So.2d 385 (La.App. 2 Cir. 1975).

The trial judge’s factual determination is entitled to great weight and will not be disturbed in the absence of manifest error. Southwest Louisiana Electric Membership Corporation v. Lemon, supra.

There is another item of damages of which the defendants complain. It is their contention that the trial judge allowed compensation for only two guy-wire sites when four such sites were taken by the expropriation. The record, especially the value estimate of Mr. Talluto, shows that all of the guy-wire areas were included in the total acreage (29.07) upon which Mr. Talluto placed his valuation of $48,355.50. Since the trial judge’s award seems to have been mainly based on the opinion of Mr. Talluto, as counsel for both parties agree in their briefs, no additional award should have been made for guy-wire sites. However, we are not inclined to disturb this award after reviewing the entire record in this case; particularly, since the plaintiff has neither appealed nor answered the landowners’ appeal, no diminution in the award will be made.

In considering appellants’ request for attorney’s fees, this request was properly denied by the trial court. In order for landowners to recover attorney’s fees, they must show that they are entitled to them contractually, by jurisprudence, by statute, or under the Constitution. LSA-R.S. 19:8A, relied upon by the landowners here, provides for attorney’s fees under conditions not present in the instant case. That provision allows the trial court in its discretion to award reasonable attorney’s fees, “if the highest amount offered is less than the compensation awarded.” The trial judge, after hearing the case and again considering the case on a motion for a new trial, concluded that the defendants were not entitled to attorney’s fees under the facts and circumstances of the case in hand. We find no abuse of his discretion. Consequently, the denial of attorney’s fees was proper.

We find the trial court’s judgment correct in all respects; the trial court’s award is just and reasonable and compensates the defendants to the full extent of their loss under the facts and circumstances of this case. We, therefore, affirm the judgment appealed at the defendants-appellants’ costs.

AFFIRMED.

CHIASSON, J., dissents and assigns written reasons.

CHIASSON, Judge,

dissenting.

I respectfully dissent.

The judgment of the trial court which has been affirmed by the majority herein grants unto plaintiff a gratuitous and unlimited right of free ingress and egress upon, over, under and across the entire properties of defendants, known as Magnolia Plantation. First, there has been no showing of any necessity of such an unlimited right of ingress and egress over defendants’ property. The right-of-way adjudicated to plaintiff crosses the public highway and thereby affords plaintiff an access to its servitude without the necessity of encumbering the entire plantation with an unlimited right of passage. Second, if in fact such an unlimited right of passage or any right of passage is necessary, then the courts should have awarded an amount of money to compensate defendants for the right of passage over other lands outside of the expropriated right-of-way. The failure to do so results in the taking of defendants’ property without the payment of any compensation in direct contravention of our constitution. That portion of the trial court’s judgment should be reversed.

Further, the trial court in its reasons for judgment placed upon defendants the burden of proving that the plaintiff acted arbitrarily, capriciously or in bad faith in its selection of the location or route for the transmission line. This is contrary to our constitution and statute law cited hereinafter. I agree with the following statements of this court in the case of Louisiana Power & Light Company v. Leche, Wife of Vernon L. Caldwell, Jr., et al., La.App., 353 So.2d 1343, to-wit:

“This expropriation proceeding was instituted pursuant to LSA-R.S. 19:2(7) which provides:
‘Where a price cannot be agreed upon with the owner, any of the following may expropriate needed property:
‘(7) Any domestic or foreign corporation created for the purpose of generating, transmitting and distributing electricity and steam for power, lighting, heating, or other such uses. The generating plants, buildings, transmission lines, stations, and substations expropriated or for which property was expropriated shall be so located, constructed, operated, and maintained as not to be dangerous to persons or property nor interfere with the use of the wires of other wire using companies or, more than is necessary, with the convenience of the landowners; * * *.’ ‘(Emphasis supplied).’
“We note that of the nine categories under LSA-R.S. 19:2 authorized to expropriate needed property, it is only in category number 7 wherein there is any mention of the convenience of the landowners. Certainly, there must be some significance to this distinction and difference.” .
“Generally, the route selected m'ust be based on sound engineering and economic principles, however, we conclude that under LSA-R.S. 19:2(7) the convenience of the landowner is an element that must be considered.
“In discussing LSA-R.S. 19:2(7), and in particular the convenience of the landowner, the Court in Southwest Louisiana Electric Mem. Corp. v. Simon, 207 So.2d 546, 553 (La.App. 3rd Cir. 1967), writ refused, 252 La. 104, 209 So.2d 37 (1968) for reasons that judgment was not final, said:
‘The necessity for expropriation for public purposes or in the public interest relegates the landowner’s right to all of the aspects of his ownership to a secondary position. But we think it clear that the statute requires the court to consider the landowner’s safety and convenience as the primary consideration and the selection of location by the condemnor to be the secondary consideration.’
“To disregard the added language of convenience of the landowners found in LSA-R.S. 19:2(7) and not found elsewhere in the expropriation authority granted by LSA-R.S. 19:2 would be to completely overlook the obvious intent of the Legislature that the convenience of the landowners be taken into consideration in determining whether the expropriating authority has abused that discretion granted it.”

It is not enough for plaintiff’s expert to simply conclude that the convenience of the landowner was taken into account in the selection and location of the route of the transmission line, but they are required by law to present facts upon which the court can make a determination of whether or not the convenience of the landowner was taken into account in locating the transmission lines. It is plaintiff’s burden, not the defendants’.

The evidence shows that the purpose of this line is to tie-in the substations located in Houma and in Thibodaux. The following of existing servitudes as contended for by the defendants would result in a shorter and less expensive transmission line as between these two substations. It is only if the transmission line is extended to an, as yet, unplanned new substation that the transmission line may be longer. No bona fide investigation into the feasibility of the alternate route has been made by the plaintiff.

I would therefore remand this case to the trial court on the question of the location of the transmission line.

Finally, insofar as the majority opinion can be interpreted to mean that the Louisiana Constitution of 1974 has had no effect upon the rules to be applied in expropriation suits by private entities, I must respectfully disagree. Article I, Section 4, Article IX, Section 1 of the Louisiana Constitution of 1974, L.R.S. 40:2351 and L.R.S. 19:2(7) mandates that private corporations expropriating property select routes for their facilities which conserve land and protect esthetic qualities, in addition to the specific needs of the expropriating entity.

For the above and foregoing reasons, I would reverse, in part, and remand to the trial court.

      . The record reflects that the father and mother had donated to their sons an undivided interest in a portion of Magnolia Plantation, by instrument dated February 13, 1976; however, the Caldwell family had continued to deal with the property as one large plantation just as they did prior to the transfer.

      . The acreage includes .05 acres for guying servitudes.


author: LEMMON, Judge. GULOTTA, Judge, BEER, Judge,

text:
    Salvador LOCHBAUM v. James V. BOWMAN et al.
    No. 8409.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 13, 1977.
    Rehearing Denied Jan. 11, 1978.

    Writ Refused Feb. 17, 1978.

      Wiedemann & Fransen, Lawrence D. Wiedemann and A. Remy Fransen, Jr., New Orleans, for plaintiff-appellee.
    Philip K. Jones, Marshall W. Wroten, Robert J. Jones and Doran & Kivett, William J. Doran, Jr., Baton Rouge, for defendant-appellant, State of La., Dept, of Highways.
    Before REDMANN, LEMMON, GULOT-TA, SCHOTT and BEER, JJ.

       Gulotta, J., voted to grant.

   LEMMON, Judge.

The State Department of Highways has appealed from a judgment holding it soli-darily liable for damages sustained by plaintiff in an intersectional collision. The liability issue involves questions of the Department’s duty to maintain traffic control signals and the relationship between the breach of that duty and plaintiff’s injuries.

The accident occurred at 6:20 a. m., shortly after daybreak, on a clear, dry day at the intersection of Airline Highway and Clear-view Parkway in Jefferson Parish. At that point Airline Highway was a divided multi-lane highway, with a narrow neutral ground separating the westbound and eastbound lanes of traffic. For eastbound traffic going into the City of New Orleans there were two lanes of travel and a third lane for vehicles turning left at the traffic light which controls the intersection. Clearview Parkway was also a multilane thoroughfare, and there were several lanes for northbound traffic, in addition to a left turning lane at the light controlling the intersection. Just prior to the accident defendant James Bowman was traveling north on Clearview Parkway, intending to make a left turn onto Airline Highway, and plaintiff was traveling east on Airline Highway in the left traffic lane (nearest the neutral ground).

The traffic light controlling the intersection had been malfunctioning since at least 5:30 that morning, when the disorder was reported to the Department of Highways. The light was stuck on green for Airline Highway traffic and on red for Clearview Parkway traffic.

As Bowman approached the intersection, he stopped in obedience to the red light behind “a couple of cars” in his lane. As the motorists on Clearview realized that the light was malfunctioning, they proceeded to cross cautiously on the red light. After five or six minutes, Bowman was first in line. He looked to his left and saw no traffic for at least 1,000 feet, then looked to his right and waited for a single westbound motorist on Airline (apparently in the left turn lane) to come to a stop, then proceeded out into the intersection, where he was struck in the left eastbound traffic lane of Airline in the area of his left front door by plaintiff’s vehicle. Bowman was not aware of an oncoming car to his left until he heard the screeching of brakes just prior to the collision.

Bowman was obviously negligent. The issues on appeal are whether the Department was negligent and whether that negligence was a legal cause of the accident.

A governmental authority that undertakes to control traffic at an intersection has a duty to the motoring public to exercise a high degree of care in maintaining the devices installed for traffic control. The fact that the Department failed to discharge this duty was overwhelmingly proved.

The record is replete with evidence of chronic malfunctioning of the traffic light at this intersection. The electrician foreman blamed the inordinate number of breakdowns on improper transportation and handling of the controllers in shipment to and from Baton Rouge for repair. Whatever the cause, the record establishes amply that there were considerable problems of long standing at this intersection, problems that should have been prevented by proper maintenance procedures.

Furthermore, as to the particular problem on the day of this accident, notice was provided to the Department at least 50 minutes before the accident that the traffic light at the highly traveled intersection of two main thoroughfares was malfunctioning. Nevertheless, there was no attempt to notify law enforcement personnel to direct traffic until repairs could be accomplished. The Department’s radio operator simply notified the service man on call, who got dressed, went to the office to pick up tools, and finally arrived on the scene after the accident had occurred.

We conclude that the Department was negligent both in failing to properly maintain the traffic signal at the intersection and in failing to take steps when notified of the malfunction to alert the proper authorities so that traffic at the intersection could be directed manually until repairs could be accomplished.

Liability is not always imposed, however, when damages occur following negligent behavior. The determination of whether liability should be imposed depends upon the facts and circumstances of each case. The initial inquiry in the determination is whether the negligent act or omission was a cause-in-fact of the accident, which is a “but for” inquiry. In the present case the accident, more probably than not, would not have occurred as it did if Bowman had simply had to wait for a green light to signal his turn onto Airline Highway. One can reasonably conclude that, but for the failure of the traffic signal to operate properly and direct his left turn, the accident would not have occurred as it did. Therefore, the Department’s failure to maintain the light in proper operation or to have the proper authorities specifically directing traffic after being notified of the malfunction was a cause-in-fact of this accident.

The more difficult inquiry is whether the risk created (that a motorist, knowing the signal was inoperative, would enter the intersection without first ascertaining that it was safe to do so) was within the scope of protection intended by the imposition of the duty to maintain traffic signals properly.

The requirement of diligent and proper maintenance of traffic signals is designed to prevent creation of unusual risks which often occur when traffic signals malfunction. In the present case, however, the Department’s breach of duty did not create an unreasonable risk of harm under the particular circumstances of this case.

Although the malfunction deprived Bowman of an opportunity to enter the intersection with a red light controlling Airline Highway traffic, one could not reasonably say that the malfunction was associated with Bowman’s utter failure to ascertain before entering the intersection that the crossing could be made safely. He was aware of the malfunction before he attempted to enter the intersection, and he was not trapped by the malfunction into an extraordinary position of danger. Perhaps if traffic had become considerably congested because of the malfunction, so that Clearview motorists foreseeably might take unreasonable chances to accomplish the crossing, a greater relationship or association would be established between the malfunctioning light and plaintiffs injury. But the evidence established there were only “a couple of cars” stopped for the constant red light when Bowman arrived, and there is absolutely no relevant evidence in this record that traffic congestion prompted Bowman to take impetuous action and attempt to cross at an unsafe time. Indeed, the record clearly established that plaintiffs car was the only vehicle approaching from Bowman’s left when he entered the intersection and that there was only one car approaching from his right.

We conclude there is no “ease of association” between the duty breached by the Department and the injury to plaintiff. See Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972). The Department’s breach merely necessitated that Bowman enter the intersection with care rather than with the right of way. His failure to use care was in no way related to the Department’s breach of duty, which we decline to classify as a legal cause of the accident. Bowman’s substandard driving was the sole legal cause.

Accordingly, the judgment of the trial court is reversed in part, and it is now ordered that plaintiff’s suit against the State of Louisiana, Department of Highways be reversed. Each party is to bear his own costs.

REVERSED IN PART AND RENDERED.

GULOTTA, J., dissents and assigns reasons.

BEER, J., dissents and assigns reasons.

GULOTTA, Judge,

dissenting.

I dissent from the majority’s decision insofar as it declines to classify as a legal cause of the accident the breach of duty to maintain the traffic signal and reverses judgment against the State of Louisiana, Department of Highways.

As pointed out by the majority, the Department breached its high duty of care. After repeated problems with the traffic signal for several months, the Department was notified of the malfunction at 5:30 a. m. on the day of the accident, but failed to remedy the defect timely. Even if repairs to the signal could not have been accomplished before 6:20 a. m. (the time of the accident), the Department, at the very least, failed to notify law enforcement officers immediately upon receiving the complaint of the malfunction. Had a law enforcement officer been dispatched to the scene immediately following the complaint, traffic at this heavily-traveled intersection could have been manually directed until a temporary flasher was installed or the repairs were completed. The work sheet of November 14, 1973, the date of the accident, indicates that a flashing signal was placed at the intersection at 7:00 a. m., following the accident, and that the traffic signals were put into effect again at 10:30 a. m.

Unlike the majority, however, I conclude that this breach of duty created the risk of injury in this particular case. Defendant, in attempting to make a left turn in order to proceed in a westerly direction on Airline Highway, was required, without the aid of the signal light, to cross the Airline lanes (carrying traffic from two directions) and the southbound lanes of Clearview (carrying traffic approaching him). Significantly, the evidence indicates that Bowman, because he was preoccupied with traffic traveling in a westerly direction on Airline, failed, albeit negligently, to correctly judge the approach of plaintiff’s vehicle traveling in an easterly direction. As Bowman himself testified:

“I looked to the left and — not—I didn’t believe this car [Lochbaum’s] was close enough to be of any danger to me. So there was a car moving, coming from New Orleans [to Bowman’s right]. And so I watched him to make sure he stopped, which was only a couple of seconds for a car to stop. He was close to the intersection.”

After waiting for this vehicle traveling westerly on Airline to stop, Bowman moved forward and was broadsided on his left by the Lochbaum vehicle traveling easterly. This testimony supports the trial judge’s statement in oral reasons that immediately before impact Bowman was “particularly worried about the vehicle that was traveling in a westerly direction”. Though traffic may have been light at the intersection at the time of the accident, the evidence clearly indicates that Bowman’s attention to the approach of the Lochbaum vehicle was diverted by the vehicle approaching from the opposite direction on Airline. Had the traffic signal not malfunctioned, Bowman would not have been forced to cross the intersection unaided by a light in his favor and to look in several directions at once, diverting his vision to one direction at the expense of his concentration on plaintiff’s vehicle approaching from the opposite direction. Under these circumstances, I conclude, as the trial judge apparently did, that there is an “ease of association” between plaintiff’s injury and the Department’s breach of duty. See Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620, 622 (1972). Accordingly, I conclude the Department’s negligence was a legal cause of the accident resulting in injury to plaintiff.

I further reject the Department’s contention that its negligence is passive or remote and that Bowman’s negligence is the sole proximate cause of plaintiff’s injury. Though the record clearly supports the trial judge’s finding that defendant driver was negligent in crossing the intersection, the driver’s negligence does not relieve the Department from liability. I am in agreement with the trial judge’s conclusion that both defendants were concurrently negligent. In Vidrine v. General Fire and Casualty Company, 168 So.2d 449 (La.App. 3d Cir. 1964), the court addressed itself to an identical argument under circumstances similar to those before us. The court stated, supra, at page 454:

“Thus, in the present instance, the failure of the municipal employees to remedy the defective traffic signal created an undue risk of harm to traffic at the intersection. The intended purpose of the duty was to prevent accidents such as that which occurred herein. The negligent failure to perform this duty was therefore a concurrent proximate cause of the accident, produced by a combination of it and of the negligence of Mrs. Vidrine in carelessly entering the intersection without adequate observation and care in the face of the out-of-order traffic signal.”

See also Bourgeois v. State, through Department of Highways, 255 So.2d 861 (La.App. 4th Cir. 1971).

For these reasons, I respectfully dissent.

BEER, Judge,

dissenting in part.

I agree with the majority’s opinion regarding Bowman’s negligence and, also, their finding of negligence on the part of the Louisiana Department of Highways (such negligence being a cause in fact of this accident). I have trouble concluding that there is no “ease of association” between the duty breached by the Department and the injury to plaintiff. Though this is a close call, and I can readily appreciate the majority’s view, I am more inclined to a thesis which upholds that call as it was made by the trial judge, absent manifest error. For this reason, I respectfully dissent from that portion of the opinion reversing the trial court’s judgment against the Louisiana Department of Highways.

      . He and his insurer did not appeal from the judgment casting him for damages.

      . In addition to numerous other problems, the master controller (which was faulty on the day of the accident) had to be replaced seven times between July 23, 1973 and November 14, 1973, and minor control switches had to be replaced eleven times.

      .During a 1973 vehicle count at the intersection, 256,000 vehicles passed in the eight-hour peak traffic period.

      . Some malfunctions, such as a green light facing both directions, create a risk of harm which amounts to a trap, since neither motorist is aware before entering the intersection that the other will not yield the right of way. This particular malfunction (a constant green light for Airline traffic and a constant red for Clear-view) resulted in a right of way situation identical to that which would have been in effect if stop signs controlled Clearview traffic and placed a burden on motorists on Clearview to enter the intersection with extreme care.

      . Evidence that this intersection is one of the most heavily traveled in Jefferson Parish was relevant to the Department’s duty to take action immediately upon notice of a malfunction, but was not relevant to proof of traffic conditions existing at the time of the accident.

      .If the evidence showed that traffic was heavily congested and that motorists on Clearview were recklessly darting across the intersection every few seconds, then a serious question of contributory negligence would have been presented, since plaintiff arguably should have noticed such circumstances in exercising reasonable lookout.


author: LEMMON, Judge.

text:
    Patrick C. HARDIE and Guy W. Smith v. William M. JUSTICE, Jr., John F. Short and Gail B. Short.
    No. 8619.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 13, 1977.
    Rehearing Denied Jan. 11, 1978.
    Writ Refused Feb. 17, 1978.

      A. W. Wambsgans, Metairie, for defendants-appellants.
    Deutsch, Kerrigan & Stiles, James A. Burton, New Orleans, for plaintiffs-appel-lees.
    Before LEMMON, BOUTALL and BEER, JJ.
   LEMMON, Judge.

The issue in this appeal is whether a recorder of mortgages, when a mortgage certificate is requested in the name of John Francis Short, is liable in damages for not reporting a mortgage registered in the name of John F. Short. The trial court answered in the affirmative and rendered judgment against the recorder for the amount that plaintiffs (the attorney who examined the title and the notary who passed the sale) paid the mortgagee to purchase an assignment of the note secured by the mortgage in order to achieve cancellation of the mortgage, thereby preventing the mortgagee’s seizure and sale of the property.

The pertinent duty and liability of recorders of mortgages are stated in C.C. arts. 3393 and 3394:

“These officers shall record on their register the acts which are presented to them, in the order of their date, and without leaving any intervals or blank space between them; and they are bound also to deliver to all persons who may demand them, a certificate of the mortgages, privileges or donations, which they may have thus recorded; if there be none, their certificate shall declare that fact.” C.C. art. 3393. (Emphasis supplied)
“The register of mortgages and the parish recorders performing the same duty, are answerable for injury resulting:
* * * * * *
“2. From omitting to mention in their certificates one or several acts existing on their registers, unless in this latter case the error proceeds from a want of exactness in the description, which can not be imputed to them.
“Each register of mortgages and/or parish recorder shall obtain and maintain in effect at all times liability insurance to cover any such errors and omissions which may occur in his office. * * *” C.C. art. 3394. (Emphasis supplied)

The recorder’s duty to deliver mortgage certificates is limited to some extent by R.S. 9:5181, which states:

“Recorders of mortgages shall refuse their certificates to persons whose Christian names are not stated, or whose Christian names are designated by the initial letters alone.”

In the present case plaintiffs properly stated the Christian names of John Francis Short on the request for a certificate. The recorder therefore had no right to refuse the certificate and was answerable for injury resulting from omitting to mention in the certificate any act existing on his register in the name of John Francis Short. See also Hathorn v. Hundley, 13 La.App. 323, 125 So. 774 (2nd Cir. 1930).

The system of mortgage registration is organized on the basis of the names of the mortgagors. The recorder’s search for mortgages is made in relation to the name stated in the request for a certificate. When the request states the first, middle and last name in which the search is to be made, the recorder must mention in his certificate any mortgage in his records bearing on the described property which has the same first name and middle initial as the name stated in the request.

The very purpose of a mortgage certificate is to inform the person making the request whether the owner has mortgaged the property. A recorder, who searches the indices and records under his control and sees the name John F. Short in the indices, should be alerted to the reasonable probability that a mortgage had been executed by John Francis Short, and this name in the indices should reasonably excite further inquiry as to the description of the property in the act.

In the present case apparently the recorder simply missed the name in the indices and therefore omitted to mention the mortgage on the certificate. He is accordingly liable for damages resulting from the omission to those who relied on the erroneous certificate.

We also reject the recorder’s alternative contention, based on Tranchina v. Williams, 10 La.App. 656, 120 So. 882 (Orl.App. 1929), that plaintiffs did not rely on the certificate, since it was dated and signed after the sale. Unlike the Tranchina case the certificate in this case was dated, initialed, and furnished to plaintiff prior to the sale, and then was redated and signed after the sale. We conclude plaintiffs relied on the information furnished by the recorder.

The judgment is affirmed.

      . Service was never obtained on the mortgagors-vendors, who were made defendants and third party defendants in this suit.


text:
    Ralph BREWER v. Kenneth C. SCULLIN.
    No. 8650.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 13, 1977.
    Michael W. McKay, Baton Rouge, for plaintiff-appellant.
    Kenneth C. Scullin, in pro per.
    Before LEMMON, BOUTALL and SCHOTT, JJ.
   LEMMON, Judge.

Plaintiff, an attorney, filed this suit to recover payment for professional services rendered to defendant, another attorney, in certain litigation arising out of the foreclosure of a mortgage securing a note held by defendant. After a trial on the merits, judgment was rendered in the amount of 11,875.0o. Plaintiff appealed, seeking an increase of $2,400.00, and defendant answered the appeal, seeking a remand with instructions to set the fee on the basis of the value of the services rendered.

On July 17,1973 defendant instituted the foreclosure by executory process. Defendant had prepared the pleadings, which were signed by his associate, and had sent demand letters to the debtor prior to filing suit.

On August 17, 1973 an intervention was filed, asserting a labor and materialman’s privilege. About ten days later defendant employed plaintiff, who had handled previous litigation on defendant’s behalf, but no fee arrangement was discussed. While the extent of the employment was also not specifically defined, plaintiff became involved in all aspects of collection of the note, and defendant also remained actively involved in pursuing collection.

The judicial sale was set for September 7, but defendant cancelled the sale when the debtor on September 4 made a $7,000.00 payment, agreeing to pay the balance within a reasonable time.

The debtor obtained the money to pay the balance, but in the meantime learned of an uncancelled collateral mortgage and a judgment affecting the property, as well as the privilege that had been asserted by the intervenor. The debtor therefore called upon defendant to have these inscriptions cancelled before tendering payment. When the parties reached a stalemate, defendant had the judicial sale rescheduled, but the debtor obtained cancellation by means of a restraining order incidental to a demand for injunction suspending the debtor’s obligation to pay the mortgage until the title was cleared. Defendant, through plaintiff, filed exceptions, a rule to dissolve the restraining order, and a demand for damages. There was a trial of the rule to dissolve, but no decision.

The entire matter was eventually compromised when defendant secured the removal of the inscriptions which had clouded the title by posting a bond for cancellation of the mortgage and by paying off the judgment and the privilege. The debtor on November 30 paid the balance of the principal and interest, plus the stipulated attorney’s fee for collection and court costs.

Between the time he was employed and the time the matter was settled plaintiff prepared and filed all pleadings and briefs, performed all research, presented all arguments in court, led the settlement negotiations with the debtor’s attorney, and filed the suit against the clerk to have the collateral mortgage cancelled upon defendant’s furnishing security. Defendant, however, was in frequent contact with the debtor’s attorney and collaborated with plaintiff in planning litigation and settlement strategy.

After the matter was settled, plaintiff claimed entitlement of the entire amount stipulated in the note as attorney’s fees for collection. The trial judge rejected the claim, stating he was satisfied by the evidence that “after Mr. Brewer was employed the matter remained a joint venture (with) associated counsel”. Since neither side kept time sheets the judge ordered an equal division of the fee.

In a suit on a professional services contract for collection of a note, when there is no agreement as to a fee, the parties are presumed to have intended a reasonable fee. The court, in setting a reasonable fee, is not limited to consideration of the collection fee stipulated in the note. Although that is a relevant consideration, other considerations may enter into the determination of reasonableness.

The present case, in addition to the complication of a stipulated fee in the other related contract (the services contract), had the additional complication that the client in the services contract occupied the positions both of client and of associate counsel. This factor also bears upon the determination of the reasonable fee intended by the parties.

Thus, defendant, solely as holder of the note, could not have retained any of the $4,800.00 attorney’s fees collected from the debtor. And defendant, as co-counsel, was entitled to a portion of any fee fixed as reasonable for the overall services. The court must therefore determine, in the light of all the circumstances, what the parties intended as a reasonable fee for all services and as an equitable distribution among co-counsel.

A suit for attorney’s fees under a services contract, in which the parties failed to specify the amount of the fee, has been regarded as a suit for breach of a quasi-contract, in which C.C. art. 1934(3) vests the trial judge or jury with much discretion. Succ. of Butler, 294 So.2d 512 (La.1974). After reviewing the services and accomplishments of the attorneys in the present case, we cannot say the trial judge abused his discretion by fixing attorney’s fees at $4,800.00. And after reviewing the circumstances surrounding defendant’s association of plaintiff as co-counsel, as well as the services performed by plaintiff thereafter, and considering the fact that collection was accomplished primarily through negotiation rather than through court procedures, we cannot say the trial judge abused his discretion by ordering an equal division of the $4,800.00 fee.

The judgment is affirmed.

AFFIRMED.

      . Plaintiff had sued for:
      $4,800.00 25% fee stipulated in note
      425.00 owed for previous services
      21.50 costs
      $5,246.50
      - 950.00 paid by defendant
      $4,295.50
      The trial court awarded half the stipulated fee, plus the other items, effectively reducing plaintiff’s demand for services related to the foreclosure by $2,400.00.

      . The foreclosure involved a sale and assumption of an existing mortgage, on which defendant remained personally liable after the assumption.

      . In Foundation Finance Co. v. Robbins, 179 La. 259, 153 So. 833 (1934) the court held that the owner of a promissory note could validly require the collection fee provision in the note contract as a method of obtaining indemnification in case of default and could sue for and recover in his own name the stipulated fee, but that the fee belonged to the attorney, and the owner could not require the attorney as part of the services contract to divide the fee (in violation of the professional canons) and thus obtain recovery of an amount greater than the principal and interest due.
      On the other hand, the parties to a services contract for collection of a note can certainly agree to a fee in excess of the amount stipulated in the note, although the note holder is limited in indemnification to that amount.

      . The present situation should be viewed no differently than that which would have existed if defendant had represented a non-attorney note holder and had associated plaintiff as co-counsel at the same point in the collection procedure.


author: GULOTTA, Judge.

text:
    Mrs. Laura M. DOESCHER v. ADMINISTRATOR, LOUISIANA DIVISION OF EMPLOYMENT SECURITY.
    No. 8630.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 13, 1977.

      Roger R. Roy, New Orleans, for plaintiff-appellant.
    Marion Weimer, James A. Piper, James A. McGraw, Baton Rouge, for defendant-appellee.
    Before GULOTTA, STOULIG and DU-PLANTIER, JJ.
   GULOTTA, Judge.

In this appeal, we are confronted with a question whether an employee timely appealed from the Administrator’s determination denying her claim for unemployment benefits. The trial court affirmed the Board of Review’s determination that the appeal, filed with the appeals referee more than 10 days after notice of determination, was untimely. Plaintiff appeals. We reverse.

Mrs. Laura Doescher filed a claim for unemployment benefits which was denied by the New Orleans area office of the Louisiana Department of Employment Security. On May 30, 1973, the area office mailed a “Notice of • Claim Determination” to her which stated that she had been disqualified for benefits from May 18,1973. The notice contained the following language:

“APPEAL RIGHTS: If you do not or your employer does not agree with this determination, the area office shown below should be contacted, in person or by mail, by 6-11-73 which is 10 days from the date this determination was mailed to you. * * * ”

A second “Notice of Claim Determination” was mailed to plaintiff on the same date, May 30, 1973. This notice stated: “Disqualification effective 5-18-73 remains in effect.” Under the heading “Findings of Fact” the notice further stated:

“You have submitted medical proof as to your ability to work. You meet the eligibility requirements of the La. Employment Security Law and you are eligible to benefits as of the effective renewal date of your claim, 5-20-73.
“The disqualification effective 5-18-73 regarding your separation from your last employment remains in effect.”

This document was not a part of the record before the appeals referee, the Board of Review or the District Court. In the District Court, the parties apparently did not appear or present oral argument. Instead, the matter was submitted on memoranda and the second “Notice of Claim Determination” was attached to the claimant’s memorandum to the trial judge.

Mrs. Doescher had filed an appeal with the appeals referee on July 10,1973. Without affording the claimant an opportunity for a hearing, the referee dismissed the appeal for the reason that it had not been filed within the time limit prescribed by LSA-R.S. 23:1629. The Board of Review affirmed the decision of the appeals referee. Claimant thereafter filed a “Petition for Review” in Civil District Court which rendered judgment affirming the dismissal.

In a “Notice to Appeals Referee” filed by Mrs. Doescher on July 10, 1977, which is made part of the administrative record in the case, she states:

“I disagree with the decision of the agency.
“This appeal is untimely because I reported as scheduled and was never advised that I was disqualified; the form I received was so confusingly worded, that I misunderstood it; I was also advised at the benefit rights interview not to question the agency if my checks were delayed.”

Following the adverse decision of the appeals referee, Mrs. Doescher mailed a letter to the Board of Review, dated July 26,1973, which is also filed in the administrative record. In this letter, she states:

“I did not file my appeal from the decision of the agency within ten days because I did not understand from the decisions mailed to me that I was disqualified. Two forms LDES 385 were mailed to mé stapled together. The first form indicated I was disqualified May 18,1973, because of my separation. The second form, which I read last, indicated that I was available for work May 20, 1973, and that I was eligible for benefits. While the second form indicated the previous disqualification remained in effect, I did not understand what this meant, because I understood that since I was declared eligible May 20, which was later than the ineligibility of May 18, that the decision of the later date counteracted the decision of the earlier date. I did not understand that these were two separate parts of the law.”

LSA-R.S. 23:1634, in pertinent part, provides:

“ * * * In any proceeding under this Section the findings of the board of review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law. No additional evidence shall be received by the court, but the court may order additional evidence to be taken before the board of review, and the board of review may, after hearing such additional evidence, modify its findings of fact or conclusions, and file such additional or modified findings and conclusions, together with a transcript of the additional record, with the court. * * * ”

Accordingly, neither this court nor the District Court can consider the second “Notice of Claim Determination” and render a judgment on the merits; However, LSA-R.S. 23:1634 does permit us to “order additional evidence to be taken before the board of review”. Accordingly, in view of the absence in the record of the second “Notice of Determination” mailed to Mrs. Doescher, she is entitled to be afforded the opportunity, on remand, to file the document into the record and present any other evidence relating to the untimeliness of her appeal.

Accordingly, the judgment of the trial court affirming the decision of the Board of Review is reversed. This matter is remanded for a hearing before the Board of Review in order to afford an opportunity to the claimant, Mrs. Doescher, to file into the record evidence of the second “Notice of Claim Determination” and any other evidence pertaining to the untimeliness of her appeal.

REVERSED AND RENDERED

      . LSA-R.S. 23:1629, in pertinent part, provides:
      § 1629. Appeals to appeal tribunals; time for filing; notice of decision
      “The claimant or any other party entitled to notice of a determination may file an appeal from such determination with an appeal tribunal within ten days after the date notification was given or was mailed to his last known address.”

      . We point out, by way of dicta, that an ambiguous notice of disqualification may be insuffi-dent to constitute notice of determination as required by LSA-R.S. 23:1625. In such instance, an ambiguous notice might constitute no notice at all and the 10-day period in which to file an appeal as set forth in LSA-R.S. 23:1629 (which commences from the date a determination is mailed) might not have expired.