text:
    Mrs. Octavia LANDRY, Plaintiff-Appellant, v. CITY OF LAFAYETTE et al., Defendants-Appellees.
    No. 5286.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 24, 1975.
    White & Pitre by Joshua Pitre, Opelou-sas, Murphy W. Bell, Baton Rouge, for plaintiff-appellant.
    L. H. Olivier, Lafayette, for defendants-appellees.

      Before MILLER, WATSON and CU-TRER, JJ.
   MILLER, Judge.

Plaintiff Mrs. Octavia Landry appeals the dismissal of her claim for the death of her husband Norbert Landry. He was killed in a gun battle with defendants who were Lafayette police officers. The city and its insurer were also made defendants. We affirm.

Plaintiff contends the officers acted unreasonably, negligently and used excessive force in their attempt to apprehend a suspected burglar or burglars, and that they illegally made a forcible entry. Plaintiff argues there was no necessity for the forcible entry which brought about the gun battle.

After hearing four days of evidence, the trial judge assigned detailed written reasons rejecting plaintiff’s version of the facts and accepting that of the police officers. The evidence in the record amply supports the trial judge’s conclusions.

Where evidence is before the trier of fact which, upon a reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, the appellate court should not disturb this factual finding absent manifest error. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed even though the appellate court may believe its own evaluations and inferences are as reasonable. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

Decedent Norbert Landry was 60 years of age at the time- of this incident. He had managed the Four Acres Club, a bar and dancehall in Lafayette, for eight years. Because of problems with burglaries, he installed a burglar alarm system some four years before this incident. When the alarm sounded outside the Four Aces, the police would learn of this when a neighbor or passerby would telephone.

After this incident decedent told his son he had some trouble with the alarm system a day or so before, but had been unable to get it repaired. While closing the business shortly after midnight of September 22, 1971, the alarm sounded for about ten minutes. An unidentified person telephoned the city police to report the sounding of the burglary alarm. Three police units responded immediately, but by the time they arrived the alarm was no longer sounding.

First to arrive was an unmarked unit occupied by plain-clothed detectives Bras-seaux and Viator. They immediately ran to the front door and because of the good lighting in that area saw that although the front door was locked, there was no padlock in the hasp provided for one outside the front door. They heard scraping noises which sounded like metal breaking into metal and 'concluded a burglary was in progress.

Within ten seconds of Brasseaux and Viator’s arrival, uniformed officer Hebert arrived in his prominently marked city police unit. He immediately joined Bras-seaux and Viator at the front of the building.

Within one minute of Hebert’s arrival plainclothed detectives Celestine and Des-pany arrived in an unmarked unit. They positioned themselves at the rear corners of the building.

On arrival and several times thereafter the officers “hollered .several times that they were police and asked the man (or men) in the building to come out with his (their) hands up.” Someone came to the front door the top half of which was clear glass. There were curtains inside'the clear glass portion of the door. After the officers identified themselves as police and while uniformed officer Hebert was under the light in clear view, the curtains parted and a person was observed peering out. The suspected burglar then closed the curtains and the officers waited for him to open the door. The officers continued to call in loud voices advising they were police and wanted the occupant(s) to open the building and come out with hands up.

Shortly after the curtains closed, Des-pany heard the noise of someone running in the building and reported this to Celes-tine. Celestine ran to the front of the building and reported this to Brasseaux, Viator, and Hebert.

Brasseaux made the decision to enter the building and Celestine remained in front of the building. Brasseaux broke the front door glass and opened the door by hitting it with his shoulder. Brasseaux was first to enter followed immediately by Hebert and Viator.

The building was 97 feet long by 38 feet wide and, including windows which had been painted, had more than twelve possible exits. The front twenty feet of the building was used as a bar and the back seventy-seven feet as a dancehall. The bar was to the right of the entrance. Patrons could go from the front door into the dan-cehall by walking straight from the entrance to a four foot wide arched doorway located in line with and twenty feet inside the front door. The barroom was dimly lighted by lights in a clock, in the juke box, and by a permanently lighted beer sign. The dancehall was totally dark.

When these three officers entered the building they again announced their identity as police and asked the occupant (s) to surrender. Brasseaux held a small flashlight which he was pointing into the dimly lighted barroom. They were met by two shots, one of which struck Brasseaux in the hand and one of which hit a glass ashtray causing glass to cut Brasseaux’s neck. Brasseaux threw down his flashlight and all three officers fired into the dark in the area from which they had seen the gun-flashes. They sought cover inside the dimly lighted barroom and reloaded their revolvers. They continued to call out that they were police and asked the occupant (s) to throw out the gun. Additional shots were fired by the decedent. Brasseaux then hollered to Celestine who was in front of the building to get reinforcements and shotguns.

Celestine called by police radio seeking reinforcements and shotguns. Within minutes two marked city police units brought uniformed officers Guidry, Savoy, and Brunt. Two had shotguns loaded with 00 buckshot. Celestine told the officers that the three officers inside were under fire and had requested shotguns. Guidry, Savoy and Brunt entered the building and loudly announced they were police and asked the occupant (s) to throw out the gun and come out with hands up. They were again met with gunfire. All officers returned the fire and mortally wounded decedent.

After the shooting stopped, one officer went into the dancehall section and found Landry down but still holding a 38 caliber revolver. He kicked the gun from Landry’s hand and Landry said he had made a “terrible mistake.” The revolver had one live round in the chamber and five spent casings in the cylinder.

An ambulance was promptly secured and Landry was taken to Lafayette General Hospital. While in the emergency room Landry talked to his wife and son and it was thought he would survive. His wife requested a transfer to Charity Hospital and that was successfully accomplished. Landry expired some three hours after the tragic incident.

At the hospital, Landry told his son he had been having trouble with the alarm system and when the police came, he thought someone was trying to rob him. He said he did not know the police were there. He also told his son to go get some cash hidden in a storeroom.

There is no manifest error in the trial court’s finding the officers had probable cause to suspect there was a burglary in progress and, under the circumstances, the police used an acceptable procedure to enter the building. This was the Lafayette Police Department’s established procedure at the time and it successfully avoided bloodshed in past situations. The police did not use deadly force until they had been fired upon by an unknown assailant from the darkened dancehall while they were in the dimly lighted barroom. One of their number had been shot by the unknown assailant and the officers could not persuade the assailant to identify himself or surrender.

There was another version of the events preceding the shootings. Mr. Charles Williams testified he was an eyewitness and had been with Mr. Landry just minutes before the alarm sounded. When he heard the alarm he stood by to see what would happen. He was within 125 feet of the front door and hid throughout the entire proceedings. He testified he watched the actions from the beginning and at one time hollered to the police telling them the owner was in the Four Aces. .He admitted he knew they didn’t hear him. Although the officers carefully looked into the area where Williams stated he was hiding (searching for possible snipers), Williams was not seen at the scene during or after the incident. Williams’ testimony was expressly rejected by the trial court on finding it impossible to believe.

Some of plaintiff’s other witnesses testified they heard Mr. Landry call out his nicknames during the shooting. This too was expressly rejected by the trial court on finding serious inconsistencies in their testimony.

Plaintiff cites several cases which we find inapposite. Only two cases involved related situations. The case of Taylor v. City of Baton Rouge, 233 So.2d 325 (La. App. 1 Cir. 1970) is distinguished in that there the court affirmed the trial court’s holding a police officer unjustifiably assaulted a person while arresting him for a traffic violation. We also distinguish Sauls v. Hutto, 304 F.Supp. 124 (La.1969), which awarded damages to the mother of a 17 year old boy shot by a police officer while fleeing the scene of a wrecked stolen car. In the instant case, as distinguished from Sauls, no deadly force was used by the police until they had been fired upon by an unknown assailant from the darkened area of the dancehall. The shooting occurred after an officer had been shot by decedent. Although the officers tried, they could not persuade the assailant to identify himself or to surrender.

The trial court judgment is affirmed at appellant’s costs.

Affirmed.


source: Caselaw Access Project

author: MILLER, Judge.

license: Public Domain

text:
    Joseph LANDRY et al., Plaintiffs-Appellants, v. CITY OF LAFAYETTE et al., Defendants-Appellees.
    No. 5287.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 24, 1975.
    White & Pitre by Joshua Pitre, Opelou-sas, Murphy W. Bell, Baton Rouge, for plainti f f s-appellants.
    L. H. Olivier, Lafayette, for defendants-appellees.
    Before MILLER, WATSON and CU-TRER, JJ.
   MILLER, Judge.

Plaintiffs, the children of Norbert Landry, appeal the dismissal of their claim for their father’s death. He was killed in a gun battle with defendants who were Lafayette police officers. The city and its insurer were also made defendants. We affirm.

This case was consolidated for trial and appeal with Landry v. City of Lafayette, 324 So.2d 550 (La.App. 3 Cir. 1975) handed down this date. For reasons assigned in-that opinion, the trial court judgment is affirmed at appellants’ costs.

Affirmed.


author: BLANCHE, Judge.

text:
    Benny L. CRAIGHEAD and Lula R. Craighead v. The EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES.
    No. 10485.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 24, 1975.
    Rehearing Denied Jan. 12, 1976.
    Writ Refused March 12, 1976.
    Arthur Cobb, Baton Rouge, for appellants.
    W. Craig Henry, Monroe, for appellee.
    ELLIS, BLANCHE and LOTTINGER, JJ-
   BLANCHE, Judge.

Plaintiffs-appellants, Benny L. and Lula R. Craighead, appeal a judgment of the Nineteenth Judicial District Court which denied their claim under a group accidental death insurance policy issued by the defendant-appellee, The Equitable Life Assurance Society of the United States. At issue is a policy issued by the defendant to Seismograph Service Corporation covering the life of William M. Craighead. Although no beneficiary was designated under the policy, the proceeds are payable to the plaintiffs under the policy’s designation of preference beneficiaries.

The case was tried under a joint stipulation of facts, a summary of which follows.

William M. Craighead, age twenty-seven, was an employee of Lorac Service Corporation (a subsidiary of Seismograph Service Corporation of Tulsa, Oklahoma) at the time of his death on August 15, 1973, when he apparently fell overboard from the vessel on which he was employed (M/V Atlantic Seal) and was drowned some seventy-five miles west of Panama City, Florida, in the Gulf of Mexico. At the time of this accident, the vessel and crew were leased by Sealcraft, Inc., of Galveston, Texas, to Digicon, Inc., of Houston, Texas, and Digicon had contracted with Lorac for Lorac to supply navigation services in connection with seismographic operations carried on by Digicon in the Gulf of Mexico.

Mr. Craighead was the senior Lorac operator assigned to the vessel to maintain the vessel on the seismographic line which they were shooting at the time. His work duties were confined to the navigation room of the vessel, and he communicated via intercom with the officer on watch who made any changes in direction requested by the Lorac operator.

At the time of Mr. Craighead’s disappearance, the Lorac equipment was nonoperational, having broken down on approximately August 11 (four days prior to his disappearance). There were no parts on board with which to repair the Lorac equipment, so the vessel reverted to its on-board instruments. During this period since the Lorac equipment had become nonoperational, Mr. Craighead had stood no regular watches.

Mr. Craighead was last seen sitting on the rail of the main deck of the vessel at approximately 5 :20 A.M. on August 15. At noon when he did not appear for lunch, a search of the ship was made, and it was determined that Mr. Craighead had been lost overboard. A search of the area was made by the vessel and the Coast Guard to no avail.

During his employment with Lorac Service Corporation, Mr. Craighead was paid at a rate of $2.05 per hour, generally, for sixteen hours per day, seven days a week. He also ■ received free meals and lodging while on board the vessel. He was paid his wages even though at the time of his disappearance the Lorac equipment was nonoperational. While he was working, Mr. Craighead set his own hours and usually worked six hours on and six hours off or twelve hours on and twelve hours off. On August 14 and 15, one day before his death and the day of his death, respectively, he was paid for a total of nineteen hours each day even though the equipment was nonoperational at the time.

Mr. Craighead was insured by his employer under a group life insurance policy with the defendant which provided life insurance in the amount of $14,000 and nonoccupational accidental death benefits of $7,000. The insured’s parents, the plaintiffs herein, were paid $14,000 in life insurance benefits, but defendant has denied the claim for $7,000 in non-occupational accidental death benefits, claiming that the insured’s death arose from bodily injuries which were not non-occupational within the definition of the policy.

Under the heading ACCIDENTAL DEATH AND DISMEMBERMENT BENEFITS, the policy provides:

“Upon receipt of due proof that any employee, while insured under this policy, shall have sustained non-occupational bodily injuries caused directly and exclusively by external, violent and purely accidental means * * * the Society will, subject to the limitations and provisions of this policy, pay [for life the principal sum].” (Record, p. 70)

Under LIMITATIONS, the policy provides :

“No payment shall be made under this policy for any loss resulting from or caused directly or indirectly, wholly or partly, by
* * * *
“(e) bodily injuries arising out of and in the course of the employee’s employment.” (Record, p. 70)

The trial judge granted summary judgment to the defendant, being of the opinion that there were no issues of fact in dispute and that the law was in favor of the mover. Plaintiffs’ motion for summary judgment was denied.

It appears that there are no real or genuine issues of material fact in dispute, and the only contested issue is a legal one, that is, whether the decedent’s death was occupational or non-occupational. Under limitation (e) quoted above, if the decedent was killed in an accident arising out of and in the course of his employment, the defendant is entitled to judgment as a matter of law and the judgment of the trial court must be affirmed. If, on the other hand, the decedent was not killed in an accident arising out of and in the course of his employment, the plaintiffs are entitled to the proceeds of the non-occupational accident policy and the judgment must be reversed.

Plaintiffs contend that the trial judge reached the wrong result by entirely relying upon workmen’s compensation law to ascertain the meaning of paragraph (e). We agree that the question is not to be determined by what has been decided in any particular workmen’s compensation case but is to be determined by whether or not recovery can be had under the terms of the policy and the facts of the injury. Nevertheless, such a decision would be persuasive if it construed almost identical language as contained in the instant policy. See First Pyramid Life Insurance Company of America v. Thornton, 467 S.W.2d 381 (Ark.Sup.Ct.1971); Carter v. Metropolitan Life Insurance Company, 47 Ga. App. 367, 170 S.E. 535 (1933).

Although paragraph (e) is not defined in the policy, we conclude, as did the trial court, that the phrase “arising out of and in the course of the employee’s employment” encompasses the activities of the deceased in the factual circumstances here presented. We reach this conclusion based upon our understanding of the common and usual significance of the words, Schwegmann Brothers Giant Supermarkets v. Underwriters at Lloyd’s London, 300 So.2d 865 (La.App. 4th Cir. 1974), writ denied, La., 303 So.2d 172.

The plaintiffs argue that since at the moment of the accident the decedent was not performing the job he was hired to do, he was, therefore, performing a non-occupational activity and accordingly they should recover under the policy.

This argument erroneously equates the phrase “arising out of and in the course of the employee’s employment” with physical activity only and overlooks the true nature of the job held by the decedent. Pursuant to Lorac’s contract with Digicon, Lorac hires radio operators to board Digicon’s ships and receive théir radio transmissions. While it is true that these operators are paid only for the periods of time they actually operate the radio, the nature of the work demands that they be on board Digi-con’s ship from the time it gets under way until it returns again to land.

Lorac, in order to insure the availability of its operators when they are required by Digicon, has no choice but to require those operators to board Digicon’s vessel as it leaves port and remain thereon until it returns. In effect, the round-trip presence of the operator is part and parcel of his employment contract with Lorac. Therefore, contrary to plaintiffs’ argument, the full course of his employment duties encompasses more than the mere operation of Lorac’s radio.

In return for his continued presence and availability and incidental to the contract between Lorac and Digicon, the operator receives his salary from Lorac and free meals and lodging during the entire trip.

The fact that the equipment failed is of no moment since obviously both employee and employer contemplated that in the event of such failure the employee would remain on board the vessel in response to Lorac’s obligations under the contract. The fact that decedent’s place of employment was at sea and the fact that he did remain on board the M/V Atlantic Seal for four days after the radio became nonoperational compels this conclusion.

From the circumstances presented, we think it is clear that the decedent drowned as a result of an accident which arose out of and occurred in the course of his employment within the meaning of the instant policy.

We are mindful that the issue presented herein is the interpretation of insurance policy language; however, similar results have been reached in other areas of the law when the same “arising out of and in the course of” language has been interpreted.

A seaman, because of similar inability to leave his ship during its voyage, is considered to be within the course of his employment for the purposes of the Jones Act, if injured while engaged in any activity incidental to and necessarily connected with his duties. It was determined in Sundberg v. Washington Fish and Oyster Company, 138 F.2d 801 (9th Cir. 1943), that an off-duty seaman’s mere presence on deck for the purpose of pointing out frolicking sea lions was held to fall within the course of his employment.

Similarly, an off-duty employee injured while being transported by her employer without charge from the place of work to the entrance to the plant, wherein the employees were not permitted to operate their own vehicles, was held to be within the exclusion of a similar group non-occupational health and accident insurance policy forcing her to seek her remedy under workmen’s compensation. In Morgan v. Equitable Life Assurance Society, 22 So.2d 595 (La.App. 2nd Cir. 1945), the Court, when faced with policy language very similar to that herein, said:

“ * * * The policy clearly contemplates that so long as an employee is in the discharge of the duties of his occupation or is engaged in some activity necessarily incidental thereto, in the furtherance of the employer’s business, the policy provisions would not apply. * * *” (22 So.2d at 598)

In Gage v. Connecticut General Life Insurance Company, 273 S.W.2d 761, 47 A.L.R.2d 1234 (Mo.App.1954), a Missouri Court of Appeals held that an off-duty injury sustained while on transportation furnished by an employer arose out of her employment, stating:

“ * * * [I]t was Mrs. Gage’s employment in Fairfax which directly caused her presence on the bus which was on the Intercity Viaduct at 7:15 A.M. on July 30, 1951; the trip was not only incidental to her job but indeed was necessary if she wanted to work. Such a transportation arrangement was beneficial to both the employee and the employer. Indeed is there any reason at all apart from her employment relationship which may account for her presence on this bus ? The admitted facts indicate that there is none.” (273 S.W.2d at 764, 47 A.L.R.2d at 1238)

The Court also concluded that the accident happened in the course of the employment, stating:

“ * * * The phrase [“in the course of”] invariably goes hand in hand with ‘out of’ and likewise has acquired an early and distinctive usage. In general, this refers to a time within the employee’s regular period of employment and at a likely place while engaged in matters which fairly may be said to be incidental to the employment relationship. Foster [Foster v. Aimes Farm Dairy Co., Mo., 263 S.W.2d 421] and Conyers [Conyers v. Krey Packing Co., Mo.App., 194 S.W.2d 749] cases, supra. Here the plaintiff’s use of the bus was obviously incidental to her TWA job when we recall that at that time the published departure and arrival schedule (Joint Exhibit'4) was the only way in which Greater Kansas City, Missouri, residents could get to the TWA Overhaul Base at Fairfax, Kansas.” (273 S.W.2d at 764, 47 A.L.R.2d at 1238)

Although we recognize that individually each of the cited cases is not controlling in the instant suit, we note that all of the factors utilized by those courts are present herein.

We have herein the inability to leave the place of employment as in Sundberg, the furtherance of the business objectives of the employer as in Morgan, and the necessity of being at the place where the accident occurred as in Gage.

For the foregoing reasons, the judgment of the trial court is affirmed, at appellants’ costs.

Affirmed.


author: COVINGTON, Judge.

text:
    Johnson L. HALE, Sr. v. Joseph R. GERACE, Administrator of the Division of Employment Security of the Department of Labor, State of Louisiana.
    No. 10481.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 24, 1975.
    Rehearing Denied Jan. 12, 1976.
    Writ Refused Feb. 17, 1976.

      Marion Weimer, Baton Rouge, for appellant.
    Douglas H. Greenburg, Houma, for ap-pellee.
    Before LANDRY, COVINGTON and BARNETTE, JJ.
   COVINGTON, Judge.

This proceeding was filed in the district court to review the decision of the Department of Employment Security which reduced the weekly benefits of unemployment compensation to the claimant, Johnson L. Hale, Sr. The said claimant-plaintiff was retired from Dresser Industries, Inc., his employer, upon his reaching the mandatory retirement age of 65 years on April 1, 1974. During his employment the claimant voluntarily contributed the sum of $6,100.-32 to the Dresser pension plan. Since April 1, 1974, the claimant has received, pursuant to the pension plan, a monthly sum of $305.44, and will continue to receive that amount as long as he lives. Under the plan, the contribution made by the claimant for the first three years of retirement is excluded from taxation at the time of its receipt by the claimant.

Following his retirement the plaintiff made application for unemployment compensation. The local agency first determined that he was entitled to receive compensation in the amount of $2,240.00 payable at the rate of $80.00 per week for the calendar year of September 1, 1974, through August 1, 1975. However, by notice of claim determination dated October 11, 1974, his weekly benefits were reduced by $70.25 per week. The claimant appealed from this determination to the Appeals Referee who upheld the Department in his decision of November 13, 1974, ordering that the determination of the Agency reducing claimant’s weekly benefits by “ . . . $70.00 (sic) per week be affirmed.”

Subsequently, the plaintiff appealed to the Board of Review, which affirmed the previous determination by its decision of February 14, 1975. Having exhausted his administrative remedies, the plaintiff filed suit in district court to review the decision of the Department of Employment Security. After a hearing based on the facts found administratively, the district court concluded that the Board of Review had committed an error of law in affirming the determination of the Department of Employment Security reducing the claimant’s weekly unemployment benefits; said court reversed that decision by its judgment dated May 28, 1975. The Department has appealed from this judgment.

On appeal, the Department contends, as it has throughout these administrative and judicial proceedings, that the plaintiff’s weekly unemployment benefits must be reduced by the amount he receives from his pension because LSA-R.S. 23:1601 (7) (c-d) provides for a disqualification or reduction for any week during which the claimant receives remuneration in the form of payments under any private retirement or pension plan toward the cost of which the employer has contributed. The claimant’s position likewise has been consistent throughout, and it is that under the terms of his particular pension plan he only receives a reimbursement of his own money until all of the money which he contributed to the pension plan has been returned to him; hence plaintiff contends that LSA-R.S. 23:1601(7) (c-d) is inapplicable to his current situation.

As we review tbe matter, the broad purpose of the unemployment law (Louisiana Employment Security Law) is to provide a measure of economic security to workers who are unemployed merely because there are not enough jobs to go around; LSA-R.S. 23:1471; National Gypsum Co. v. Administrator, Dept. of Emp. S., 313 So.2d 230, 232 (La.1975); Parkerson, Unemployment Compensation in Louisiana (Comment), 19 La.L.Rev. 448, 454 (1959); 56 A.L.R.3d 520 (1974). In the National Gypsum Co. case, supra, the court, after setting forth this state’s declared public policy as a guide for interpreting the unemployment compensation law, said:

“Thus unemployment compensation is not paid primarily to reward the employee nor to punish the employer, but rather to protect the stability of the state and of the family, by relieving the family distress and the menace to the public welfare occasioned through unemployment of individual workers.”

To accomplish this avowed purpose, this state has included in its law various disqualification grounds; LSA-R.S. 23:1601. These disqualification grounds are intended to insure that unemployment compensation benefits will be received only by workers who are unemployed primarily because of economic causes. Stated another way, the purpose of the disqualification provisions are “to make sure that compensation is not paid to those who choose not to work, that the compensation law does not encourage idleness, and that it does not weaken the willingness of the individual to provide for himself through employment.” Algiers Homestead Association v. Brown, 246 La. 738, 167 So.2d 349, 351 (1964).

LSA-R.S. 23:1601, as amended, sets out the grounds for which a claimant is disqualified for benefits, and the apposite provision reads as follows:

“An individual shall be disqualified for benefits: . . .
“(7) For any week with respect to which he is receiving or has received remuneration in the form of: .
“(c) Payments under any private retirement or pension plan, system or policy toward the cost of which a base period employer is contributing or has contributed on behalf of the individual;

In view of the sound public policy of the law designed to provide some measure of economic security to unemployed workers, we think the more reasonable interpretation of the private pension plan remuneration disqualification is that this disqualification takes effect only after the claimant has been reimbursed for the money which he has put in the pension plan. In the instant case, the employer did not contribute any part of the money the claimant is presently receiving from the plan; the money that he is now receiving is his own money. Until such time as he has completely withdrawn his own funds set aside in the pension plan, the employer cannot be said to have contributed any money to the remuneration received by him. In other words, until the claimant has been repaid all of the money which he himself contributed to the pension plan, it cannot be said that he is receiving “. . . remuneration in the form of payments under any private retirement or pension plan, system or policy toward the cost of which a base period employer is contributing or has contributed on behalf of the individual.”

We believe that:

“Any other construction of the cited sections would be inconsistent with the well-established Louisiana rule that the Louisiana Employment Act is within the class of social and economic legislation which should be interpreted so as to extend its benefits as far as possible within the bounds imposed by the expressed legislative restriction,” Lambert v. Brown, 169 So.2d 4, 6 (La.App. 2nd Cir. 1964).

That is to say:

“(T)he provisions of this statute are to be construed liberally in favor of the unemployed worker.” Southern Hardware and Lumber Company v. Vesich, 250 So.2d 780, 784 (La.App. 4th Cir. 1971).

We are of the opinion that the interpretation of the Louisiana Employment Security Law advocated by the Department goes against the grain of the broad purpose of this law and is contrary to the liberal construction rule that is an integral part thereof.

We thus agree with the claimant’s position and the conclusion of the district court that the disqualification provision of LSA-R.S. 23:1601 (7) (c) is not applicable to the plaintiff herein, because the employer did not contribute any part of the remuneration which the claimant is now receiving.

As our learned brother below aptly stated in his excellent Reasons for Judgment:

“At this stage of retirement, Dresser has not contributed a penny toward the cost of a pension plan from which Mr. Hale is receiving any benefits. For that reason this court does not believe Mr. Hale should be deprived of unemployment benefits solely because at some later time he will be paid benefits from a retirement or pension plan the cost of which was paid by contributions from his base employer.
“This court does not believe the legislature intended by this provision to treat pensioners differently, that is to penalize a pensioner drawing his own money out of a plan and thereby treating him the same as a pensioner who has contributed nothing to his' pension plan and is drawing benefits created by contributions of his employer.”
“This court knows of no reason why Mr. Hale’s disqualification is clearly necessitated, and none has been pointed out to it. To the contrary, convincing argument and compelling reasons dictate that the statute is not applicable in a situation where claimant is only receiving in retirement his own money.”

The judgment of the district court is affirmed.

Affirmed.

      . The applicable statute provides that benefits are computed in multiples of one dollar; LSA-R.S. 23:1693; hence, the “rounding off” from $70.25 to $70.00.


author: LANDRY, Judge.

text:
    Kenneth W. MEYERS v. Barbara Lynn Duhe MEYERS.
    No. 10449.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 24, 1975.
    Rehearing Denied Jan. 12, 1976.
    Writ Refused March 12, 1976.
    Richard L. Muller, Covington, for appellant.
    Marion B. Farmer, Covington, for appel-lee.
    Before LANDRY, COVINGTON and BARNETTE, JJ.
   LANDRY, Judge.

Plaintiff, Kenneth W. Meyers (Appellant), appeals judgment awarding defendant, Barbara Lynn Duhe Meyers (Appel-lee), custody of the minor child, Karen Meyers, born November 5, 1969, issue of the marriage between these parties. The trial court based its decision on the premise that the mother, not having been shown to be unfit to have custody, was entitled to custody as a matter of law. We affirm.

On December 18, 1972, Appellant ob-táined a decree of separation from Appel-lee, which judgment made no award of custody of the Minor, Karen Meyers. At the time of the decree, the child, then slightly more than three years of age, resided with the mother. On or about January 1, 1974, Appellee voluntarily surrendered the child to Appellant, who retained custody until the trial court awarded custody to Appellee. At the close of the hearing, the trial court took the matter under advisement for a period of ninety days and, in open court, ordered an investigation made by the State Department of Welfare and a report thereof submitted to him. Neither Appellant nor Appellee objected to the investigation ordered by the trial court. On appeal, however, Appellant complains that the trial court considered a confidential Welfare Department report not made available to Appellant.

Subsequent to the separation between these parties, Appellee has lived in five or six different locations. When she surrendered the child to Appellant in January, 1974, Appellee was then living with her parents. Also since the separation, Appel-lee has held several different-jobs, primarily in restaurants or similar places of business. At the time of the custody hearing, Appel-lee rented and shared a three bedroom house with her married and divorced sister and the sister’s three year old daughter. Appellee is presently employed at a feed and seed store where she earns $100.00 weekly. Appellee testified she voluntarily surrendered Karen’s custody to Appellant because at that time, Appellee had been unemployed for about two months.

Since obtaining custody of Karen in January, 1974, Appellant has maintained a home for himself and the child in a two bedroom apartment which also has a kitchen, bath and small front porch. The front bedroom, formerly a living room which afforded entry to the apartment, was converted by Appellant into a bedroom for Karen. Appellant is employed by an establishment which sells automobile parts. He earns a salary of $125.00 per week.

In cases involving custody, especially custody of children of tender years, the mother is preferred and will be awarded custody unless she is shown to be morally unfit or otherwise unsuitable. Fulco v. Fulco, 259 La. 1122, 254 So.2d 603; Estes v. Estes, 261 La. 20, 258 So.2d 857; Malone v. Malone, La.App., 271 So.2d 598.

Notwithstanding the preference accorded the mother in custody cases, the paramount consideration in such matters is the best interest of the child or children concerned. Malone v. Malone, above; Gulino v. Gulino, La.App., 303 So.2d 299.

Custody is not to be denied a mother unless she has been shown to be morally unfit or otherwise unsuitable to have custody. A mother who has not been shown to be unfit may be deprived of her right to custody only in exceptional cases where it appears that the best interest of the child will otherwise be served. Gulino v. Gulino, above.

In custody cases, considerable discretion is vested in the trial court whose determination will not be disturbed except on a showing of manifest error. Fulco v. Fulco, above; Estes v. Estes, above.

The present record discloses evidence of indiscretions and immaturity on the part of both parents. Appellee has shown some degree of instability in that she has frequently changed residences and employment. Appellant introduced testimony of several witnesses who variously characterized Appellee as a careless or below average housekeeper from the standpoint of neatness and orderliness. Appellant also produced witnesses who attested to having been intimate with Appellee, and one witness who allegedly observed Appellee in a compromising situation with a third party. Appellee denied all such accusations. On the other hand, Appellee produced her parents, with whom Appellee and Karen lived for a time, and a disinterested third party acquaintance, all of whom attested to Appellee’s good morals, and also to the fact that Appellee was a good mother. The record shows that while Karen was in Appellee’s custody, the child regularly attended a reputable kindergarten during Appellee’s working hours, the kindergarten being the same one the child attended while in Appellant’s custody. We also note in the record some evidence of slight neglect on Appellee’s part of the child’s clothing and personal appearance on more or less isolated occasions.

Appellant, as did Appellee, professed his love for his child and desire for her permanent custody. Appellant concedes his friendship and intimacy with a divorcee who has three children, including a girl of the approximate age of Karen. Appellant also acknowledges his intent to marry this party when Appellant is ultimately free to remarry. Appellant’s fiancee attested her desire and willingness to rear Karen along with her own children. It was brought out, however, that in February, 1972, Appellant plead guilty to the offense of neglecting his said minor daughter by failing to support her despite her being in necessitous circumstances. In fairness, however, it must be noted that while Karen was in Appellant’s custody, he was indeed a faithful and devoted parent.

We agree with the trial court’s determination that Appellee has not been shown to be unfit to have custody of her minor daughter, and that neither do the circumstances otherwise dictate that the child’s best interests will be served by awarding custody to the father. We find the result reached to be well within the discretionary limits vested in the trial court in matters of this nature.

Appellant complains of the trial' court’s considering a report of the State Department of Welfare in determining the custody issue herein presented, which report was not made available to Appellant and which does not constitute part of the record herein.

Our courts have, on prior occasions, held such reports inadmissible as hearsay in custody proceedings when proper and timely objection is made thereto. See Murray v. Murray, La.App., 220 So.2d 790; LeBlanc v. LeBlanc, La.App., 194 So.2d 122; Lyckburg v. Lyckburg, La.App., 140 So.2d 487.

However, in this instance, the trial court made it clear that it would request and consider such a report prior to making its decision in this instance, and Appellant made no objection thereto. 'A litigant may not initially complain on appeal of an alleged trial court error in the absence of an objection thereto at trial level.

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

Affirmed.


author: BARNETTE, Judge.

text:
    Leon EDWARDS v. CONSOLIDATED UNDERWRITERS.
    No. 10456.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 24, 1975.
    Rehearing Denied Jan. 12, 1976.
    Writs Refused Feb. 17, March 9, 1976.

      Arthur H. Andrews, Baton Rouge, for appellant.
    Richard B. Nevils, Baton Rouge, for ap-pellee.
    Kleinpeter & Nevils, Richard B. Nevils, Baton Rouge, for plaintiff-appellee.
    Franklin, Moore & Walsh, Arthur H. Andrews, Baton Rouge, for defendant-appellant.
    Before LANDRY, COVINGTON and BARNETTE, JJ.
   BARNETTE, Judge.

This is an appeal of a judgment in the amount of $21,751.33 in favor of the plaintiff, appellee, for damage to a brick building owned by him in the City of Pontcha-toula. The defendant, appellant, has conceded liability from the beginning and the only issue is the quantum of damage. The plaintiff, appellee has not answered the appeal and is not seeking an increase. At the time of the accident the building was only partially utilized and there is no issue of consequential damage. The only issue is whether the judgment is excessive, and if so, what would be just compensation for the damage sustained. The damage occurred on October 17, 1970. The case did not come to trial until January 29, 1975. The District Court judgment was rendered and signed on April 14, 1975. Timely sus-pensive appeal was taken to this court.

A truck insured by defendant, Consolidated Underwriters, was negligently driven into a brick column supporting the roof projecting out from the main structure of plaintiff’s commercial building which originally was used to house an automobile garage, parts and sales agency. The overhanging roof supported by several brick columns provided a drivein area for servicing automobiles.

When the truck struck one of the columns, knocking it down, a major portion of the roof collapsed causing one or more other columns to fall and doing heavy damage to the front of plaintiff Edwards’ building. As stated above, the defendant and its insured have never denied their liability for the damage to the building.

Photographs were filed in evidence showing extensive damage, and giving a good indication of the appearance of the Edwards building before the damage. Other photographs depict the building after repair and reconstruction .of the front portion showing an entirely different type of construction with a marked change of appearance.

The only witnesses called to testify were Sam Mannino, who represented the contractor, Ragusa Brothers, Inc., who repaired the building, and Leon Edwards, the owner. Mr. Mannino qualified as an expert in building construction and appraisal of damage.

The. substance of the testimony is that Ragusa Brothers, Inc., was engaged to make immediate temporary repairs to shore up the remaining overhead structure to prevent further damage and possible injury. Mr. Mannino made an estimate of cost of $21,751.33 for restoration of the building to its former condition in structure and architectural design. This estimate took into account the use of such old material as could be salvaged economically.

The building was not restored to its original condition but was reconstructed by tearing away completely the damaged front section and covering the front wall of the principal building structure with a metal facia. To this was anchored an aluminum canopy which projected out from the main structure with no supporting columns.

The total cost to plaintiff for this reconstruction was $9,014.95. While this repair and reconstruction was underway, Mr. Edwards had the contractor to do some remod-elling of the interior of the building to accommodate a trade school for which purpose it had been leased. This additional construction cost was approximately $10,000 and should not be confused with the issue in this case.

Neither of the witnesses could testify as to the age of the building. Obviously it is many years old and defendant’s counsel has somehow arrived at an estimate of 40 years. There is no evidence to support this estimate, but it does not appear to be unreasonable. We do not know the age of the building and will not attempt an estimate. It was many years old.

There is no testimony that the building possessed any unique features or value from an historical or architectural viewpoint. As reconstructed, it appears to be a reasonably attractive modern building of functional design.

The trial judge assessed the damage at the exact figure submitted by Mr. Mannino as his estimate of cost to restore the structure to its prior condition. No allowance was made for depreciation of the old structure. Furthermore, it is significant we think, that the owner chose not to have the damaged portion of his building restored to its prior condition. There is no evidence in the record, and apparently no attempt was made, to show whether the repaired building with its change of design and material was of greater or less value than it was before the accident.

Assuming that after its repair and change in physical design, function and appearance it was of equal value to that before the damage, then the owner has been made whole again in the manner which he elected at his option. To then grant him recovery of further compensation of $12,736.38 (the difference between the estimate of cost of $21,751.33 and that actually incurred, $9,014.95) would be an unjust enrichment.

Assuming that after reconstruction with the changes in design and material it is of less value than it was before being damaged, the just measure of damage would be the actual cost of repair plus the depreciation in value.

If the after reconstruction value is greater than the before damage value, the defendant cannot complain for it has been able to fully compensate the owner for less than it could have done if the owner had elected to have his building restored to its exact former condition. The option rests with the owner to elect the type of reconstruction, but he will not be permitted to enrich himself unjustly in doing so. He is entitled to be made whole, but no more.

Several cases in our jurisprudence have dealt with the problem of assessing damages in situations similar to that presently before us. In arriving at the amount of damages to property, our courts have in the past followed generally three approaches.

1. The cost of restoration, if the thing damaged can be adequately repaired.

2. The difference in value prior to the damage and the value following the damage.

3. If the value before and after the damage cannot be reasonably determined or if the cost of repairs exceed the value of the thing damaged, the measure of damages to the owner has been the cost of replacement new, less reasonable depreciation.

Peak v. Cantey, 302 So.2d 335 (La.App. 1st Cir. 1974); Aetna Insurance Company v. Palao, 263 So.2d 394 (La.App. 4th Cir. 1972); Granger v. Bouillion, 220 So.2d 764 (La.App. 1st Cir. 1969); Davis v. Roberts, 194 So.2d 772 (La.App. 1st Cir. 1967) and cases there cited.

The first approach would be applied if there had been an actual restoration, but that is not the case here because the owner has elected not to have his building restored to its former condition, but rather, according to substantial change in design and material.

If it were possible to do so upon the record before us on this appeal, we would apply the second approach to which we would add a clause to make that approach read as follows:

The difference in value prior to the damage and the value following the damage and restoration when the owner has elected to have the building restored according to significantly altered design and specifications.

The total absence of testimony as to value before and after damage and restoration precludes the application of this formula.

If the before and after value cannot reasonably be determined, we would resort to the application of the third approach. We do not know from the record before us whether the before and after value can or cannot reasonably be determined. There is no evidence whatever in the record on this question.

Under Article 2164 of the Code of Civil Procedure we should render judgment which we find to be just, legal and proper upon the record before us on this appeal. We do not think the judgment of the trial court is just, legal and proper, but we are unable to determine the proper final judgment from the record before us.

We have indicated above the factors which we think should be considered before attempting an application of either of the accepted approaches, particularly numbers 2 and 3. Until further testimony is taken to determine the before and after value of the building or that determination of that question cannot reasonably be made, a just decision is impossible. Furthermore, if the court finally comes to an application of the approach number 3, it would be of great benefit to have testimony touching upon the question of depreciation due to the age of the building.

The defendant has acknowledged liability to the extent of $5,437.88 and has deposited this amount in the registry of the court for disbursement to the plaintiff. This amount will not justly compensate for the damage for in any event the plaintiff is entitled to judgment in the minimum sum of $9,014.-95. To this amount should be added the additional sum representing the depreciation in value, if any, resulting from the altered reconstruction of the building. For the reasons stated above, namely the total absence of testimony on this question, we are unable from the record before us to determine that additional amount to which plaintiff may be entitled.

We will exercise our discretion under Article 2164 of the Code of Civil Procedure, to render the judgment which we think will more nearly be just, legal and proper upon the record before us. Accordingly, we will amend the judgment rendered by reducing it to $9,014.95 and will remand the case for further trial limited to the issue of depreciation in value of plaintiff’s building.

The judgment appealed is amended by reducing the award in favor of plaintiff, Leon Edwards, and against Consolidated Underwriters from $21,751.33 to $9,014.95 and reserving to plaintiff, Leon Edwards, the right to further proceed in this cause for recovery of such additional amount as may be found due for depreciation of the building in question, if any, as a result of the altered restoration, and for this limited purpose the case is remanded to the trial court for further proceedings consistent with the views herein expressed.

The appellee is cast for the costs of this appeal, all costs incurred at the trial level to date shall be paid by defendant, Consolidated Underwriters. All future costs shall be assessed in accordance with final judgment rendered.

Amended and affirmed in part and remanded for further proceedings.


author: COVINGTON, Judge:

text:
    Nathan T. STICKER v. GENERAL FOODS CORP. et al.
    No. 10452.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 24, 1975.
    Rehearing Denied Jan. 12, 1976.
    Writ Refused Feb. 17, 1976.

      L. Michael Cooper, Baton Rouge, for appellant.
    Ron S. Macalusa, Hammond, for appel-lees.
    Before LANDRY, COVINGTON and BARNETTE, JJ.
   COVINGTON, Judge:

This is a suit by Nathan T. Sticker to recover damages from General Foods Corporation, manufacturer of Sanka Coffee, and Ernest Steadman, d/b/a Steadman’s Grocery, seller of the jar of Sanka Coffee, which plaintiff alleged contained broken glass which caused him severe pain.

Defendant, Ernest Steadman, d/b/a Steadman’s Grocery, was dismissed from this suit by judgment signed on June 14, 1974, after a hearing on his motion for summary judgment. Therefore, this action was prosecuted against General Foods Corporation alone.

After trial on the merits, the trial judge rendered judgment in favor of plaintiff ordering defendant to pay to plaintiff the sum of $5,000.00 with legal interest thereon from the date of judicial demand until paid and for all costs of the proceedings. From that judgment, defendants have taken this appeal. The defendant-appellant contends that the trial judge erred in holding that plaintiff-appellee proved by a preponderance of the evidence that defendant General Foods Corporation was negligent, or guilty of any-other fault, and that the jar of Sanka Coffee contained glass at the time it left the possession of defendant. The appellant further contends that the trial judge erred in awarding damages in the amount of $5,000.00 when such an award, assuming liability, was grossly excessive considering the alleged injuries involved. The plaintiff-appellee has answered this appeal praying that the judgment of the trial court be affirmed and made the judgment of this court.

Appellant’s first specification of error on the part of the trial judge is to the issue of liability. Appellant, in brief, directs his attack upon the proof submitted by appellee at the trial of this matter as being less than that proof which is required by law. Appellant, in arguing the issue of liability, points out that assuming that glass was in the coffee container when purchased, appellee did not establish that the glass was present due to a manufacturing defect or from some other form of negligence on the part of the manufacturer.

In McCauley v. Manda Brothers Provisions Co., 202 So.2d 492 (La.App. 1st Cir., 1967), we held that:

“Louisiana cases relative to the liability of a manufacturer or processor of food products fall into a number of general categories. Probably the largest category of these cases cover food products which are sold in sealed containers, such as capped bottles or cans. Among those cases are . . . LeBlanc v. Louisiana Coca-Cola Bottling Co., 221 La. 919, 60 So.2d 873 (1952); Givens v. Baton Rouge Coca-Cola Bottling Co., 182 So.2d 532 (La.App. 1st Cir., 1966).”

The Supreme Court, in the LeBlanc case, supra, based the liability of the manufacturer in such cases on implied warranty rather than negligence and required a plaintiff to prove that he purchased the product in an apparently undisturbed container, that it contained a foreign substance, that the product was consumed and that an injury resulted therefrom. The practical effect of the above ruling is to impose strict liability on the manufacturer in such circumstances.

The test outlined above was approved by us in Reid v. Clearfield Cheese Company, Inc., 307 So.2d 115 (La.App. 1st Cir., 1974).

In this case appellee testified that his wife purchased the coffee in an apparently undisturbed container, that it contained a foreign substance, that the product was consumed and that an injury resulted therefrom. We concede, after careful examination of the record, that the appellee’s expert witness, Dr. Knesel, did not testify that the glass was in the coffee when purchased. This, it appears from appellant’s brief, is the main thrust as regards the question of liability. We note, however, that no proof was offered to refute the allegations that the glass was in the coffee when purchased or manufactured.

The trial judge heard the testimony, he observed the witnesses, and was in a good position to fairly evaluate what he saw and heard. The ruling of the trial court, regarding questions of facts, will not be disturbed on appeal in the absence of manifest error, and no such error is found herein; Jayco Sales and Service, Inc., v. Smith, 303 So.2d 554 (La.App. 1st Cir., 1974).

Appellant has alleged that the trial judge erred by awarding damages in the amount of $5,000.00 when such an award, assuming liability, was grossly excessive considering the injuries involved. We recognize the fact that a degree of uniformity of awards should be maintained; Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149. The amounts of awards granted or approved by the appellate courts are to be considered in light of prior cases which involve similar injuries; Kontomitras v. New Orleans Public Service, Inc., 314 So. 2d 441 (La.App. 4th Cir., 1975). We are mindful of our decision in Rodriguez v. Trebritz, 304 So.2d 396 (La.App. 1st Cir., 1974), wherein we held that prior awards are merely an indication of value, and are not necessarily binding.

The trial judge did not give written reasons for judgment; therefore, we cannot tell the amount awarded for mental anguish and the amount awarded for physical suffering. It appears that the award is for general damages and the trier of fact is granted much discretion in such awards; Anderson v. Welding Testing Laboratory, Inc., La., 304 So.2d 351 (1974).

However, taking cognizance of prior cases involving similar injuries we find: the plaintiff was awarded only $500.00 in Deris v. Finest Foods, Inc., d/b/a A & G Restaurants, 198 So.2d 412 (La.App. 4 Cir. 1967), although there w.as a period of considerable anxiety following the ingestion of a banana split containing pieces of glass; in Mushatt v. Page Milk Company, 262 So.2d 520 (La.App. 4 Cir. 1972), there was a $600.00 award for gastrointestinal disturbances which continued for several days after the plaintiff had consumed evaporated milk which contained solder pellets.

The testimony offered by the plaintiff is somewhat conflicting. However, viewing it most favorably to him, it shows that for the first two or three days of discomfort his diarrhea was rather mild. Then he began experiencing severe stomach cramps and a worsening of diarrhea. After about a week of this, on a Saturday, he first discovered rectal bleeding and on the next day his wife discovered the glass in the coffee.

A call was then made to the doctor, who requested that the plaintiff take an enema and report to the emergency room of the hospital, which plaintiff did, driving there alone and being there examined by a physician. The' doctor did not testify, but his report, offered in evidence, contained no evidence of rectal bleeding. The plaintiff was given a prescription and the doctor suggested that if relief was not obtained, he was to report back for X-ray. The plaintiff took the medicine and at the end of four days he was completely well.

The record also shows that the plaintiff lost no time from work. He testified that while he did report to work and lost no pay, he was nevertheless unable to perform his duties satisfactorily for approximately one week.

In view of the foregoing, we find that the award is manifestly excessive and reduce it to $1,500.00 for mental and physical suffering. Special damages of $9.39 were also incurred. Therefore, the judgment is amended to reduce the award, granting to the plaintiff-appellee the sum of $1,509.39, plus legal interest from date of judicial demand until paid and all costs incurred in the suit against the appellant.

Amended and, as amended, affirmed.


text:
    Mary Alice GUILBEAU et al. v. LIBERTY MUTUAL INSURANCE COMPANY et al.
    No. 10470.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 24, 1975.
    Rehearing Denied Jan. 12, 1976.
    Writs Granted Feb. 17, 1976.

      Joseph J. Picione, Lafayette, for plaintiffs.
    Taylor, Porter, Brooks & Phillips, Robert J. Vandaworker, Baton Rouge, for Liberty Mutual Ins. Co. and Gaines P. Wilson & Son, Inc.
    Porteous, Toledano, Hainkel & Johnson, Christopher E. Lawler, New Orleans, for Cottonbelt Ins. Co.
    Watson, Blanche, Wilson & Posner, David W. Robinson, Baton Rouge, for Continental Ins. Co. and E. A. Caldwell, Contractor.
    Before LANDRY, COVINGTON and BARNETTE, JJ.
   BARNETTE, Judge.

This wrongful death and survival action arises out of an accidental death that occurred on August 11, 1971 at a construction site on U. S. Highway 190 in West Baton Rouge Parish. The decedent, John Albert Guilbeau, was fatally injured when he was struck by a backing truck owned by J. B. Higgins while walking on the shoulder of the highway in the course and scope of his employment.

At the time of the accident the shoulder of the highway was being given an asphalt overlay under a contract between the Louisiana Department of Highways and Gaines P. Wilson & Son, Inc., the contractor. The work was being done by men and equipment furnished by both Gaines P. Wilson & Son, Inc. (Wilson) and E. A. Caldwell Contractor, Inc. (Caldwell), under an agreement made by them before Wilson’s bid was submitted. Before considering the liability aspect of the case, we must determine the nature of the contractual relationship between Wilson and Caldwell and the question of which one of them the decedent was actually an employee of, or if the job project was a joint venture between Caldwell and Wilson, making the decedent the employee of the joint venture.

The Continental Insurance Company and Liberty Mutual Insurance Company, the workmen’s compensation insurers_ of Caldwell and Wilson respectively, jointly paid and are paying all workmen’s compensation benefits Guilbeau’s dependents are entitled to under the law.

The plaintiff, Mary Alice Guilbeau, the surviving spouse of the decedent, individually and on behalf of her five minor children, is now suing for some $702,000.00, a figure which includes damages for pain and suffering to John Guilbeau prior to death, loss of support and wages, loss of. love, affection, and companionship for Mary Guilbeau and each of the five minor children, and funeral expenses not paid by the compensation insurers.

Continental and Liberty Mutual intervened in this suit to recover workmen’s compensation payments made in the event plaintiff is successful in establishing tort liability.

Named as defendants in this suit are Gaines P. Wilson & Sons, Inc., and its liability insurer, Liberty Mutual Insurance Company, E. A. Caldwell Construction, Inc., and The Continental Insurance Company, its liability insurer. Also named were J. B. Higgins, the owner of the 1966 Chevrolet dump truck that was involved, and his insurer, Cotton Belt Insurance Company, Inc.; the driver of the truck, Marion Lee Higgins, and several others.

The decedent, Guilbeau, was employed the day before the fatal accident by Tenis (sp. ?) Savoy, a crew foreman in the employ of E. A. Caldwell Contractor, Inc., to work on his crew as a mechanic. Savoy’s crew was primarily concerned with the operation of an asphalt spreading machine.

U. S. Highway 190 at the site of the accident is a major four lane east-west highway. The east and west bound lanes are divided by a very narrow median topped off by posts and a metal barrier rail. On each side of the highway there is an improved shoulder, level for a short distance from the road surface and then gradually sloping down. The outer lane of traffic of the two eastbound lanes was blocked to traffic by plastic cones for some distance to either side of the work area, to provide a traffic-free area in which workmen and equipment could move and work in safety.

Savoy’s crew was operating an asphalt spreading machine on the shoulder of the eastbound lane moving slowly eastward toward Baton Rouge on the day of the accident. In order to keep this machine in continuous operation, it was necessary to reload the hopper every five minutes or so with hot asphalt mix from dump trucks brought in from the asphalt plant some distance up the road, which was jointly owned by Caldwell and Wilson but operated by Wilson. At the time of the accident, the trucks were coming from the east down the westbound lane and turning left through the nearest break in the barrier dividing the highway. They would cross over the eastbound lane onto the shoulder and then proceed to back westward down the shoulder to the spreader.

On August 10, the day decedent was hired, it rained and he did not work. The next day, Guilbeau reported to work. He apparently lacked certain essential tools to perform his duties as a mechanic and thus was kept busy on various miscellaneous chores. Later in the day Guilbeau was sent to Opelousas to obtain an inspection sticker for one of the Caldwell service trucks. He was also given leave by his foreman, Savoy, to buy the personal tools his job required in Opelousas. Guilbeau stopped briefly at his home, and then returned to work in the early afternoon. He was then occupied with repositioning barricades and cones on the roadway, and shortly before his death, he was told to move a service truck further eastward up the road on the blocked off traffic lane to get it out of the vicinity of the spreader as it approached. It was after parking this service truck that the decedent was struck and killed as he was walking down the shoulder of the road back to the area of the spreader.

The decedent was killed almost instantly. A passing motorist was the only eyewitness to the actual striking of Guilbeau. His testimony indicates that the truck initially struck Guilbeau behind the left shoulder. There was a brief struggle, and the decedent was caught and pulled under the right rear dual wheel of the truck.

The truck that was involved in the accident was owned by J. B. Higgins and leased, along with a driver, to Gaines P. Wilson, Inc. to supplement the existing fleet of Wilson and Caldwell trucks available for the asphalting job.

We find it unnecessary to delve into the issue of negligence of the various parties. Under the facts before us in the record, as will be discussed more fully below, it is our finding that this is a joint venture and a borrowed servant situation and, under the existing law and jurisprudence, recovery in workmen’s compensation is the plaintiff’s exclusive remedy.

The contract with the Department of Highways was obtained by Gaines P. Wilson & Son, Inc. by the usual process of competitive bidding. Neither Caldwell nor his corporation was a party to the contract. Sometime prior to submission of a bid, E. A. Caldwell had gone to George H. Wilson, president of Gaines P. Wilson & Son, Inc., with the proposal that they bid the job together sharing equipment and participating in profits. There was an oral agreement consummated between the two and Wilson submitted a bid and was awarded the contract.

The pertinent elements of the oral agreement were as follows: Wilson was to take 4% of the gross income of the job in return for securing the construction bond, advance financing, and bookkeeping. A special account, the “Gaines P. Wilson & Son, Inc., Livonia Account,” was established for the job. Initial funds for this account came from Gaines P. Wilson & Son, and thereafter deposits were to be made with the progress payments from the Department of Highways as they accrued. All expenses and salaries were to be paid out of this account. After the job was finished, the funds, if any, remaining in the account were to be shared equally as profit by the two corporations. There was to be a joint control and supervision of the project.

Both corporations also agreed to furnish equal equipment, with rental payments paid to each based on 50 to 60 per cent of the “Green Book” value. This, along with the purchase of several new pieces of major equipment necessary for the job, was to be paid as expenses from the Livonia account. In their agreement it was understood that either party could buy any of this equipment from the job after completion, or if there was any disagreement on an individual item, it would be sold to a third party with the proceeds deposited in the Livonia account.

The manpower necessary to complete the job was handled similarly. Crews previously used by both firms were utilized. These, and any other personnel required to be hired for this specific job, were to be, and subsequently were, paid by checks written on the Livonia account. The expense of supervision was also paid out of this account.

Wilson employees were to handle all clerical work except for the payroll. The payroll information was maintained in Caldwell’s Baton Rouge office because Caldwell subscribed to a computer service. A computer printed the payroll checks and they were signed by a Caldwell secretary.

The right to control the job was vested in both of the corporate participants. The planning of the job was carried out jointly by E. A. Caldwell and John W. Calhoun, Wilson’s executive vice president. The job was executed by a superintendent, first Willie McDaniel, a Wilson employee and later, Billy Works, a Caldwell employee. McDaniel and Works alternatively supervised the Livonia project. As job superintendents they were both subject to supervision of and orders from'Caldwell, Wilson and John W. Calhoun, Wilson’s vice president, all three of whom took an active part in planning the project and its execution. Works was acting in the position of job superintendent at the time of the accident. Savoy, the foreman in charge of the asphalting crew, which included Guilbeau was, on the day of the accident, directly responsible to Works. The asphalt spreading machine was Qwned and furnished for the Livonia job by Caldwell. Savoy and his crew went with the asphalt spreader assigned to the Livonia project. The Savoy crew customarily worked together as a unit. They had worked as a crew on other jobs for Caldwell and for Wilson and for a contracting firm identified as Barber Brothers.

Clearly, as a matter of law, the above circumstances constitute a joint venture, and all employees engaged in the performance of the joint undertaking were employees of the joint venture.

Whether or not an agreement to cooperate in the execution of a particular work project constitutes a “joint venture” in the legal significance of that term is determined by the circumstances and all aspects of the agreement of the parties and not by any label which the parties themselves may place upon their agreement.

Mr. Wilson was asked specifically if he understood the term “joint venture” and testified:

“Q You used the term in your testimony, ‘joint venture.’ Do you know what a j oint venture is ?
“A No, sir. I’ve had quite a bit of debate on that.
“Q Did you use those words as terms of art as we lawyers say, meaning a particular kind of thing or were you just talking as a layman not knowing exactly what a joint venture is?
“A I really don’t know the legal term. I’ve had it described to me several times and frankly I don’t know. I know we worked together.
“Q You have described the facts of how the Caldwell corporation and the Wilson corporation worked together and whatever kind of arrangement that was in law, you don’t intend to put a label on it?
“A No, sir.”

The question is the intent of the parties and that is determined by their agreement either express or implied. Hero & Company v. Farnsworth & Chambers Co., 236 La. 306, 107 So.2d 650 (1958); Daspit v. Sinclair Refining Company, 199 La. 441, 6 So.2d 341 (1942). In the Hero case the Supreme Court said:

“There are no hard and fast legal rules fixing the requisites for a joint venture; each case must be considered sui generis and care must be exercised that consideration is given to the usages and practices characteristic of the particular commercial undertaking sought to be labeled a ‘joint-adventure’. To satisfy the requirements by a showing that a joint profit is sought by one or more parties would be to put the ‘joint venture’ label on almost every commercial venture requiring the cooperation of two or more parties.” (Emphasis in the original)

Being cognizant of this admonition of caution we have looked beyond the aspect of sharing of profits and find in addition to that aspect of their agreement Caldwell and Wilson also agreed to, and did in fact, share a proprietary interest and control, and agreed to share any losses which might be incurred. These additional features of their agreement met the requirement which the Supreme Court found wanting in Hauth v. Iacoponelli, 251 La. 410, 204 So.2d 767 (1967). The facts established in this case meet all the requirements which the Courts of Appeal found wanting in Roberson v. Maris, 266 So.2d 488 (La.App. 4th Cir. 1972); and in Suckle v. Hartford Accident and Indemnity Company, 163 So.2d 564 (La.App. 2nd Cir. 1964), writ refused 246 La. 582, 165 So.2d 481 (1964); and in Walker v. Simmons, 155 So.2d 234 (La.App. 3rd Cir. 1963).

In Babineaux v. Southeastern Drilling Corporation, 170 So.2d 518 (La. App. 3rd Cir. 1965), writs refused 247 La. 613, 172 So.2d 700 (1965), the court considered the liability of the several parties to a joint venture for workmen’s compensation to an injured employee. The court said:

“Where ‘the employee is subject to the joint control of several employers at the same time and for the same work, he is entitled, if injured, to subject them all to his compensation claim. * * * If the wo'rk being done at the time of the accident was in furtherance of a joint enterprise shared by all employers, so that each of them had a direct financial interest in the entire job, we are presented with a case of partnership or joint enterprise liability. * * * It is not necessary, that each partner or joint venturer personally control the work of the injured employee. It is sufficient that they are engaged in a common enterprise that contemplates the employment and control of the claimant by one of the interested parties for the benefit of all. * * * ’ Malone, Louisiana Workmen’s Compensation Law (1951), Section 58, pp. 66-67.”

Clearly, therefore, both Caldwell and Wilson and their respective compensation insurers are obligated for the payment of compensation in accordance with the Workmen’s Compensation Law. They have recognized this obligation and are complying with the statute by making the payments according to law. It therefore follows that they have no liability to plaintiffs in this tort action. The exclusive remedy of the decedent’s widow and children is in workmen’s compensation benefits, as to which there is no issue. La.R.S. 23:1032. This section provides as follows:

“The rights and remedies herein granted to an employee or his dependent on account of a personal injury for which he is entitled to compensation under this Chapter shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations.”

No statutory declaration could be more clear and unequivocal. There have been numerous cases in our appellate courts in which this section has been applied. In none of them has there been any question of the intent of the law. It would serve no useful purpose to burden this opinion with the numerous citations. For this reason, if for no other, the plaintiffs’ demands against Caldwell and Wilson and their respective liability insurers, for damages in tort must be denied.

We will now address ourselves to the issue of liability of the defendant, J. B. Higgins, owner and lessor of the dump truck and his liability insurer, Cotton Belt Insurance Company, Inc. This issue in a similar factual situation was presented in Brown v. B & G Crane Service, Inc., 194 So.2d 746 (La.App. 4th Cir. 1966), writs refused 250 La. 534, 197 So.2d 79 (1967), and 250 La. 535, 197 So.2d 80 (1967). In that case two workmen on a construction job were injured by the alleged negligence of a crane operator in causing a structural steel member to break a supporting- cable resulting in the collapse of structural steel frame work on which the workmen were perched. They were injured in the fall. The court there applied the “control” test and reached the conclusion that the crane operator was the borrowed servant of the general contractor and therefore the exclusive remedy of the injured workmen was in workmen’s compensation. The decision in that case is dispositive of the issue here.

The dump truck which backed over and fatally injured the workman was at the time of the accident in the service of Caldwell and Wilson on the Livonia project. The truck and driver were leased to the general contractors for service on this particular job project, just as was the crane and its operator in Brown v. B & G Crane Service, supra. In this case, as in Brown v. B & G, the leased equipment (dump truck) and its operator were under the control and direction of the general contractors, their job supervisors and employees. All the truck drivers hauling asphalt mix from the asphalt plant to the asphalt spreader on the job-site were told when to haul the asphalt mix, when, where and how to dump it into the spreader hopper. The driver of the Higgins truck had to take and did take his orders from the Caldwell and Wilson employees. He was in no sense whatever under the control and direction of the owner and lessor of the truck insofar as his employment on the Livonia project was concerned. Clearly he was the borrowed servant of the general contractors, Caldwell and Wilson, and there can be no recovery of damages in tort against the owner-lessor of the truck and his liability insurer. The right of recovery in Workmen’s Compensation is exclusive of all other remedies for the reason above stated. Brown v. B & G Crane Service, Inc., supra.

Our Supreme Court made an exhaustive examination of the authorities on the subject of borrowed servant in Benoit v. Hunt Tool Co., 219 La. 280, 53 So.2d 137 (1951) and found under the facts of that case that the negligent welder was not the borrowed servant of the general contractor. But in the later case of B & G Crane Service v. Thomas W. Hooley & Sons, 227 La. 677, 80 So.2d 369 (1955), under a different set of facts found that the negligent crane operator was a borrowed servant. The test which was used in the Hooley case, as in Truitt v. B & G Crane Service, Inc., 165 So.2d 874 (La.App. 4th Cir. 1964) and Brown when applied to the factual situation here can lead to no other conclusion than that which we have reached.

Several later cases involving the borrowed servant doctrine have been before our appellate courts. In all of them the tests adopted and applied by our Supreme Court in Hunt and Hooley were applied. Only in those where the facts failed to meet the test have the workmen been found not to be borrowed servants. Lambert v. James A. Teague Rental Equipment, Inc., 278 So.2d 544 (La.App. 1st Cir. 1973) writ refused 281 So.2d 750 (La.1973); Universal Engineers & Builders, Inc. v. Lafayette Steel Erector Corporation, 235 So.2d 612 (La.App. 3rd Cir. 1970) writs refused 256 La. 854, 239 So.2d 358 (1970), and 256 La. 855, 239 So.2d 358 (1970); Kezerle v. Hardware Mutual Casualty Company, 198 So.2d 119 (La.App. 3rd Cir. 1967), writ refused 250 La. 918, 199 So.2d 921 (1967).

The trial judge said in his written “Reasons for Judgment:” •

“The Court is of the definite opinion that deceased, John A. Guilbeau, was at least guilty of contributory negligence which was a proximate cause of the accident causing his death and therefore the plaintiff widow and heirs of decedent cannot recover. No negligence was shown by either Gaines P. Wilson and Son, Inc. or E. A. Caldwell, Inc. who were engaged in a joint venture which joint venture was the employer of decedent, Guilbeau at the time of the accident.”

The issue of negligence as it relates to the joint venture employers, E. A. Caldwell Contractor, Inc. and Gaines P. Wilson and Son, Inc. and to J. B. Higgins, owner and lessor of the dump truck, will not be considered for the reasons above stated.

The plaintiffs seek recovery of damages in tort additionally against Marion Lee Higgins, driver of the dump truck, based on his alleged negligence. Marion Lee Higgins was not served with citation and is not before the court.

Also named as defendants and charged with negligence were Morris Brown and Alex Manuel, fellow workmen, and Billy Works, job superintendent for E. A. Caldwell Company, Inc., and “X, Y and Z officers, directors, stockholders, and all safety officers” of both E. A. Caldwell Construction Company, Inc., and Gaines P. Wilson and Sons, Inc.

We have made a careful examination of the record and fail to find where either of these named individuals was served with citation. No answers were filed in their personal behalf. No issue was joined with them and no judgment can be rendered against either of them personally. However, the plaintiffs have alleged that the respective insurers of the Caldwell and Wilson companies are liable as insurers for the negligence of these named individual employees and executive officers by reason of their coverage in the insurance policies issued respectively to the Caldwell and Wilson companies. Since the alleged liability insurers are before the court, and are alleged to be liable for the negligence of the named individuals we find it necessary to determine if there is an insurance coverage of the named individual employees and executive officers as alleged, and if so, then the issue of their liability

On careful examination of the record before us we find that certain policies of liability insurance were filed in evidence. They were issued by Liberty Mutual and Continental, respectively to the Gaines and Caldwell Companies, but they are simply automobile liability insurance policies and make no provision for coverage of any persons individually except in the use of company owned and insured automobiles. They have no application to the alleged negligence of the corporate employees and executives named in this case.

Furthermore, both defendant insurance companies expressly denied the allegations of insurance coverage of the named individual defendants and not one word of testimony was offered to contradict their denial. The plaintiffs have therefore failed to discharge this essential burden of proof, and their action against Liberty Mutual and Continental on this alleged liability must be dismissed.

It is therefore unnecessary for us to discuss the alleged negligence of the named fellow employees and executive officers, or their alleged legal liability under any theory of tort law.

We have quoted above from the trial judge’s written reasons for judgment from which it appears that his reasons for denying recovery to the plaintiffs are two-fold, namely, (1) the legal relationship of the parties and (2) the decedent’s contributory negligence.

For the foregoing reasons it is unnecessary for us to discuss the issue of negligence of the truck driver and the decedent’s alleged contributory negligence which the trial judge found adversely to plaintiffs. We prefer to rest our judgment on the rationale discussed above rather than the issue of contributory negligence which we specifically pretermit.

The judgment rejecting the plaintiffs’ demands and dismissing their suit as against all defendants is affirmed at appellant’s cost.

Affirmed.

      . Service was not obtained on Marion Lee Higgins and consequently he is .not a party to this suit.

      . Billy Works, the alleged general supervisor of the construction, Alex Manuel, Jr., Morris Brown, fellow workmen, and X, Y and Z, officers, directors, stockholders, and/or safety officers of Wilson and Caldwell.


text:
    Marie M. WEST and Milton G. West v. STATE of Louisiana, Through STATE SUPERINTENDENT OF PUBLIC EDUCATION, etc.
    No. 10457.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 24, 1975.
    Rehearing Denied Jan. 12, 1976.

      Michael R. Connelly, Baton Rouge, for appellants.
    Cormack M. Blackmon, Special Counsel, Baton Rouge, for appellee.
    Before LANDRY, COVINGTON and BARNETTE, JJ.
   LANDRY, Judge.

Plaintiffs, Marie M. and Milton G. West (Appellants), appeal from judgment dismissing their suit against defendant, State of Louisiana, Through the State Superintendent of Public Education (Appellee), for unpaid wages, statutory penalties and attorney’s fees claimed under the Wage and Hour Provisions of the Federal Fair Labor Standards Act of 1938, on Appel-lee’s exception of no cause of action. We reverse and remand this matter for further proceedings.

Appellants (Husband and Wife) brought this action pursuant to the provisions of 29 U.S.C. § 216(b). The petition alleges that Mrs. West was employed by Appellee from February 1, 1971 to June 30, 1973, as a “cottage parent” at the New Friends House, located in Baton Rouge, Louisiana, which institution is commonly known as a “half-way house”. Mrs. West’s salary is alleged to have been from $350.00 to $420.-00 per month, based on a 40 hour work week. It is also alleged that Mrs. West was required to file a monthly time record. It is further alleged that Mrs. West was required to work seven days per week,, including holidays, and that she was on call 24 hours daily. It is additionally alleged that Mrs. West worked far in excess of the 40 hour week for which she was paid, but that she was not permitted to file reports showing the overtime worked and that she was never paid for overtime worked.

Mr. West asserts that under the terms of his wife’s employment contract, he was required to live on the premises with Mrs. West and assist her in the performance of her duties. He also alleges he was required to work the same hours as Mrs. West and has been paid no compensation.

Mrs. West seeks overtime compensation as provided for by 29 U.S.C. § 207, together with statutory penalties and attorney’s fees pursuant to 29 U.S.C. § 216(b). Mr. West prays for recognition as an employee of Appellee having worked the same hours and due the same compensation as Mrs. West, plus statutory penalties and attorney’s fees.

Appellant filed peremptory exceptions of no,cause and no right of action. The exception of no cause of action is predicated upon Appellant’s alleged sovereign immunity from suit and Appellee’s failure to aver legislative waiver thereof. The exception of no right of action is predicated upon Appellants’ failure to aver facts sufficient to place Appellants within the coverage of the Fair Labor Standards Act.

In the trial court and in this court as well, Appellants contend this action is in contract, and that the doctrine of sovereign immunity is unavailable to Appellee in a suit in contract, as expressly provided by La.Const. 1921, Article XIX, Section 26. Alternatively, Appellants urge that if constitutional immunity exists in favor of Ap-pellee under state law, such immunity has been removed by recent (1974) amendments to 29 U.S.C. § 216(b).

The lower court sustained Appellee’s exception of no cause of action based on sovereign. immunity upon finding that La. Const. Article XIX, Section 26 does not contain a waiver of Appellee’s sovereign immunity in cases in contract. We conclude the lower court erred in so holding.

In pertinent part La.Const. 1921, Article XIX, Section 26, provides as follows:

“The following named commissions, boards, bodies or municipal corporations are and shall be considered special agencies of the State of Louisiana:
(5) The State Board of Education,
(9) The State Superintendent of Public Education in his capacity as such as well as in the capacity of ex-officio secretary of the State Board of Education, and
(10) The State Department of Education.
The consent of the State of Louisiana to suits or legal proceedings against any of the above listed special agencies, (however heretofore given) is hereby expressly withdrawn and no such suit or proceeding shall be permitted except as provided in this section. . . . There is expressly excepted from the foregoing, suits for the enforcement of contracts entered into by any of the special agencies or for the recovery of damages for the breach thereof. .
This Section shall be self-operative and shall supersede any other portion of this Constitution or any statutes or regulations in conflict herewith.”

The foregoing constitutional provision clearly and expressly waives the sovereign immunity otherwise enjoyed by Ap-pellee in suits against Appellee for the enforcement of contracts as well as actions for damages for breach of contracts entered into by Appellee. The Article in question has been previously so interpreted in Hill v. North-Central Area Vocational Technical School, La., 310 So.2d 104.

We deem it elementary that the relationship of employer-employee is contractual in nature. Consequently, if Appellants allege an employer-employee relationship as the basis for their claims, they have alleged a cause of action in contract, LSA-C.C. art. 2675.

Pertinent herein is the principle that laws in existence when a contract is confected become part of the agreement and are incorporated therein as though expressly forming part of the covenant. LSA-C.C. art. 1903; Velasquez v. Custom Built Homes, Inc., La.App., 246 So.2d 699. More specifically, our Supreme Court has expressly held that when an agreement of employment exists or comes into being, the Federal Wage and Hour law becomes part of the contract as fully as if the provisions of the law are incorporated therein by the parties. Johnson v. Anderson-Dunham Concrete Co., 212 La. 276, 31 So.2d 797.

There can be no question but that the petition herein alleges an express contract of employment between Mrs. West and Appellee, and that pursuant thereto Mrs. West is entitled to certain unpaid wages, penalties and attorney’s fees. We find it equally clear that the petition alleges an implied contract of employment between Mr. West and Appellee pursuant to which services were rendered 'by Mr. West and no payment whatsoever was made by Appellee. For purposes of disposing of an exception of no cause of action, all well pleaded allegations of plaintiff’s petition must be accepted as true. Barnett v. Develle, La.1974, 289 So.2d 129.

Accepting Appellants’ allegations as true, we find that both Mr. and Mrs. West have stated a cause of action under the Wages and Hours Provisions of the Federal Fair Labor Standards Act, that is, a claim for overtime for which payment has not been made. It is well settled that if a petition states a cause of action on any ground whatsoever, it is not vulnerable to an exception of no cause of action. Louisiana & Arkansas Railway Company v. Goslin, 258 La. 530, 246 So.2d 852.

Having found that state immunity from suit has been constitutionally waived in this instance, it is unnecessary that we consider whether state sovereign immunity has been removed in this area by the effect of federal law.

Appellee’s exception of no right of action is based on the premise that the petition does not allege facts which bring Appellants within the ambit of the Fair Labor Standards Act. It is contended that the facts alleged do not place Appellants in any category of employees covered by the federal statute. As noted, the trial court referred Appellee’s exception of no right of action to the merits.

Appellee reurges its exception of no right of action on appeal; however, we note than an exception of no right of action is triable as an issue of fact with the admission of evidence, and that recent jurisprudence sanctions the referring of exceptions to the merits within the discretion of the trial court. Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 262 So.2d 328; La.Code Civ.P. art. 929, comment (b). Therefore, under the circumstances, we find no abuse of the trial court’s discretion in referring the exception of no right of action to the merits.

The judgment of the trial court sustaining Appellee’s exception of no cause of action predicated upon Appellee’s alleged sovereign immunity is reversed, annulled and set aside and this matter remanded to the lower court for trial. All costs of this appeal, for which the State of Louisiana, through the State Superintendent of Public Education and the State Board of Education may be cast, shall be paid 'by said Ap-pellees.

Reversed and remanded.