text:
    Susan Kay DUNCAN v. L.H.H.R.A., DIVISION OF FAMILY SERVICES.
    No. 11023.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.
    Rehearing Denied Feb. 14, 1977.
    Writ Refused April 20, 1977.
    Robert N. Clarke, Metairie, for appellant Susan Kay Duncan.
    Charles F. Castille, Baton Rouge, for ap-pellee.

      Before LANDRY, COLE and CLAIBORNE, JJ.
   COLE, Judge.

Susan Kay Duncan appeals from a decision of the Louisiana Civil Service Commission sustaining an unsatisfactory rating given her while employed as a protective services worker for the Orleans Parish Family Services Division. We affirm.

Appellant was rated satisfactorily while working in the Service Maintenance Unit of the Family Services Division from April 9, 1973, to July 12, 1973, as a welfare visitor. On July 13, 1973, at her request she was transferred to the Protective Services Unit. She was working in this capacity at the time she received an unsatisfactory rating on April 25, 1974, for the period from July 13, 1973, through March 31, 1974. On May 31, 1974, she was transferred back to the Service Maintenance Unit as a welfare visitor.

After being notified of the unsatisfactory rating, at appellant’s request, an appeal hearing was held on July 16, 1974, before a review committee of the Division of Family Services. The appellant was notified by the Director of Family Services on July 31, 1974, that the committee upheld the rating given to her.

Appellant then petitioned for appeal to the Civil Service Commission on August 13, 1974. The appeal was based upon contentions that: (1) her rating was “non-objective and not based on fact,” and (2) she was “never advised that her performance was substandard in any way, nor was she ever given a supervisory plan by her supervisor” in violation of the departmental guidelines of the Director of the Family Services Division. Before the Civil Service hearing was held, the appellant moved for summary disposition, alleging that she was not advised in writing prior to her rating that her performance was substandard in violation of guidelines established by the Director of Family Services. At the hearing on the motion for summary disposition, counsel for appellant sought to argue an additional basis for summary disposition, which he orally styled as a “Peremptory Exception.” The factual basis for this so-called exception related to an allegation that the appellant did not receive written notification of her rating for more than thirty days from its effective date in violation of Civil Service Rule 10.3.

“(a) At any time after the docketing of an appeal a written request may be filed by an interested party for summary disposition thereof on any of the following grounds:
“1. That the Commission lacks jurisdiction of the subject matter, or of the person against whom relief is sought.
“2. That the appellant has no legal right to appeal.
“3. That the appeal has not been made in the required manner or within the prescribed period of delay.
“4. That the appeal has become moot.
“5. That an appellant has failed to appear at the time fixed for the hearing of his appeal, without having been granted a continuance.
“6. That the written notice expressing the cause for the action complained against is insufficient; or, that the cause as expressed does not constitute legal ground for the disciplinary action.
“7. That the disciplinary action was not taken by the proper appointing authority.”

Civil Service Rule 13.14(a) sets forth the requirement that a summary disposition must be sought by written request on one of several enumerated grounds. The appellant’s initial written request for summary disposition did not recite any of the enumerated grounds. While the appellant’s so-called “Peremptory Exception” was never keyed to any particular enumerated ground for summary disposition, the basis of the allegation is properly the subject for a summary disposition under Rule 13.-14(a)(6) dealing with insufficient notice. However, since it was not filed in writing before submission to the Commission, the denial of the summary disposition was proper. The appellant’s later attempt to correct the omission by filing a “Motion to Conform to Oral Argument” does not suffice to give adequate notice to the party opposing the request for summary disposition.

The denial of a request for summary disposition, however, does not preclude the reconsideration of the issue by the Commission before final disposition. Rule 13.14(c).

Appellant in this appeal urges as error the failure of the Commission to consider her “Peremptory Exception” raised in her “Motion to Conform to Oral Argument.” Appellant goes further by filing before this Court a peremptory exception under Louisiana Code of Civil Procedure Article 2163 based on the same alleged violation of Rule 10.3. It is briefed as one of prescription. It is evident to us that by means of these convoluted pleadings, appellant seeks, in effect, to amend the original petition for appeal to the Commission, which omitted the ground that the notice given to appellant was insufficient in that more than thirty days elapsed from the time of the rating to the written notice. Rule 10.3. Under Rule 13.11(d), the notice of appeal to the Commission must contain a clear and concise statement of the basis for appeal.

It is questionable whether an appeal to the Commission may be amended to raise an additional ground for appeal after the time for appeal has elapsed. See e. g., Bennett v. Division of Administration, 307 So.2d 118 (La.App. 1st Cir. 1974). However, we are cognizant of the general principle that appeals, including those before the Civil Service Commission, are favored and should be maintained when possible and not be dismissed for technicalities. Smith v. Board of Commissioners of Port of New Orleans, 262 La. 96, 262 So.2d 383 (1972).

It is also questionable whether the failure to timely object to the enumerated irregularities listed in Rule 13.14 amounts to a waiver of such objections. See e. g., Bonnette v. Louisiana State Penitentiary, 148 So.2d 92 (La.App. 1st Cir. 1962).

However, assuming that appellant’s contention that notice was insufficient was properly before the Commission, appellant’s specification is still without merit, because it is clear from the Commission’s written opinion that this contention was specified and noted by the Commission. While the Commission’s opinion does not address the resolution of this contention specifically, as we view the Commission’s opinion, all matters made issue were disposed of by the Commission when the appeal was heard on its merits. The opinion states:

“ * * * [T]he Commission could not find any evidence that would justify its overturn of the Unsatisfactory Service Rating. * * * ”

When the appeal came to the Commission on the merits, the parties stipulated to the introduction of the testimony adduced at the departmental hearing before the Family Services Division. Since the contention that appellant did not receive timely notice was not at that time at issue, there appears to have been little effort to elicit facts at the hearing bearing on this contention. However, there is adequate testimony in the record to support the conclusion that appellant’s supervisors gave her official notice within the required thirty days. Further, there appears to have been no prejudice caused to the appellant by the alleged delay in receiving notification.

Appellant’s only other contention on appeal is that the Division of Family Services violated its own guidelines in giving the appellant her unsatisfactory rating without giving her prior notice that her work had regressed to a substandard level. The departmental regulations or guidelines in question were not presented into evidence and do not form a part of the record. These guidelines are distinct from the Civil Service Rules, and accordingly, we may not take judicial notice of them. Therefore, the alleged violation of such guidelines is not a basis for appeal under the circumstances of this case.

For the foregoing reasons, the determination of the Civil Service Commission is affirmed, at appellant’s cost.

AFFIRMED.

      . Civil Service Rule 10.3 provides:
      “Within 30 days after the service rating has become official the employee shall be furnished written notification of his rating by his employing authority and a duplicate thereof shall be made a part of his personnel file maintained by the department employing him.”

      . Civil Service Rule 13.14(a) provides:


source: Caselaw Access Project

author: SARTAIN, Judge.

license: Public Domain

text:
    Jennings C. CAIN, Plaintiff-Appellee, v. WITCO CHEMICAL CORPORATION et al., Defendants-Appellants.
    No. 10861.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.
    Rehearing Denied Feb. 14, 1977.
    Writs Refused March 31, 1977.

      Mary Olive Pierson, Sheldon D. Beychock, Baton Rouge, of counsel for plaintiff-appel-lee, Jennings C. Cain.
    Ronald L. Ronzello, Louis M. Kiefer, Jr., New Orleans, of counsel for intervenor-ap-pellant, Employers Mutual of Wausau Ins. Co.
    Charles W. Franklin, Arthur H. Andrews, Baton Rouge, of counsel for defendants-appellants, Employers Mutual of Wausau Ins. Co., J. H. Hayes, J. D. Autrey and J. Rogers.
    William L. Wilson, Frank Middleton, III, Baton Rouge, of counsel for defendants-appellants, Travelers Ins. Co., Witco Chem. Corp., J. H. Waples, Ray Bellanger, M. B. Carbo, M. B. Ulmer, R. Haydel, P. Johnson, and Robert Bauer, Jr.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   SARTAIN, Judge.

This personal injury suit concerns an incident on December 21, 1971, in which Jennings C. Cain, a truck driver for Younger Brothers, Inc., sustained severe acid burns while on the premises of Witco Chemical Corporation in Gretna, Louisiana.

On that day, Cain was delivering a load of sulfuric acid, or oleum, to Witco and, upon arriving, found that the dock where such products were unloaded was already being used by another Younger Brothers truck driver, Paul F. Trabeau, who had not yet completed the discharge of his load. Cain then parked his truck outside the plant and joined Trabeau where he was sitting, which was some fifteen to twenty feet from the rear of the latter’s truck.

The acid was being pumped from the back of Trabeau’s truck through a coupling device and into a two inch pipe which was a standard, schedule 80 carbon steel pipe, installed there by Witco to receive that product. Without warning, the pipe suddenly burst, spraying acid in the direction of the two men; both ran immediately, however, Cain slipped and fell and was showered with the oleum which caused extensive burns over a large part of his body.

Alleging the failure of the Witco pipe, the plaintiff brought suit against that company and against four pipe manufacturers who were eventually dismissed on motions for summary judgment. Witco thereafter made third party demands against Younger Brothers and three of its executive officers. Plaintiffs thereupon, by supplemental and amending petitions, named as additional defendants these same executive officers of Younger Brothers and certain executive officers of Witco. Third party demands were made by each of these groups of executive officers against the other for indemnification and/or contribution from one another. Employers Mutual Insurance Company of Wisconsin, Younger Brothers’ workmen’s compensation carrier, also filed a claim for the benefits which it had paid, the amount of which was eventually stipulated by all parties hereto.

In this posture, the case was tried to a jury for seven days. Judgment in the amount of $425,000.00 was rendered in favor of the plaintiff and against Witco and its executive officers, Messrs. Milton L. Ul-mer and Robert E. Bauer, Jr., and their insurer, The Travelers Insurance Company, and against the executive officers of Younger Brothers, Messrs. Jesse D. Autry, James H. Hayes, and J. H. Rogers, and their insurer, Employers Insurance of Wau-sau. The third party demands, above, for contribution were recognized. All defendants cast have appealed and plaintiff has answered the appeal seeking an increase in the award. We conclude that the judgment rendered in the trial court should be affirmed in part and reversed in part.

The jury received the case with a general verdict form and eight special interrogatories, one of which asked for their findings as to the contributory negligence of Jennings C. Cain. After some deliberation, the jury sent a note to the court asking, in effect, whether Cain would receive damages if they found that he had been contributorily negligent. The court then reread to them the portion of its charge pertinent to that issue.

After further deliberations, the jury returned its verdict which found, inter alia, that the plaintiff was guilty of contributory negligence but with a general verdict in favor of him in the amount of $425,000.00. The court then instructed them that there was a conflict between one of their special interrogatories and the general verdict and sent them back to resolve that conflict. The jury subsequently reversed its findings as to contributory negligence and allowed the general verdict to stand. The appellants maintained that the trial judge erred in not entering judgment based upon the jury’s original finding of contributory negligence.

Code of Civil Procedure Article 1812 provides:

“Art. 1812. General verdict accompanied by answer to interrogatories
“The court may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict. The court shall give such explanation or instruction as may be necessary to enable the jury both to make answers to the interrogatories and to render a general verdict, and the court shall direct the jury both to make written answers and to render a general verdict.
“When the general verdict and the answers are harmonious, the court shall direct the entry of the appropriate judgment upon the verdict and answers.
“When the answers are consistent with each other but one or more is inconsistent with the general verdict, the court may direct the entry of judgment in accordance with the answers, notwithstanding the general verdict, or may return the jury for further consideration of its answers and verdict, or may order a new trial.
“When the answers are inconsistent with each other and one or more is likewise inconsistent with the general verdict, the court shall not direct the entry of judgment but may return the jury for further consideration of its answers or may order a new trial.”

The decision of the trial court to return the jury for further consideration of the conflicting answers was entirely proper and specifically provided for by statute. We further note that the trial judge carefully refrained from pointing out the conflict or otherwise commenting on the dilemma to the jury. Consequently, we find no error in the actions of the court taken in that regard.

The facts surrounding this unfortunate incident are not seriously in conflict. Cain, a driver with tractor-trailer experience, was hired by Younger Brothers in April, 1971. He was trained and instructed for the hauling of acid by other Younger employees and drivers and was then assigned a three compartment truck for a “dedicated run” between Stauffer Chemical Company in Baton Rouge, Louisiana, and Witco. In addition to the operation of his truck, his training was concerned with the proper handling of this dangerous substance, as his “run” consisted of the delivery of two tanks of oleum to Witco and the loading there of one tank of sludge for delivery back to Stauf-fer. At Witco, he was to position his truck at the acid unloading dock, put on his full safety suit which had been provided for him by Younger Brothers, and then couple his discharge line to Witco’s pipe for unloading. During that process, the oleum was pumped into the pipe which failed here under air pressure. Upon completion, he was to uncouple the truck, load the sludge and depart. The drivers were required to wear their full safety suit during the coupling and uncoupling operation; however, that rule had been relaxed by Younger Brothers to the extent that a driver could remove his safety jacket while the truck was being unloaded if he moved around to the front of the truck.

The jury concluded that Witco and two of its executive officers, Messrs. Ulmer and Bauer, were guilty of actionable negligence. We find that decision to be correct except as to Bauer, against whom judgment should not have been rendered. It was conclusively proved at the trial that the Witco pipe ruptured due to acid corrosion of which that company should have been aware. More particularly, it was shown that pure oleum passing through such a pipe would have little corrosive effect upon it, but that when oleum is diluted by water, its ability to corrode the pipe is greatly increased; where the oleum is considerably diluted, the corrosion can be extensive immediately.

It was further established that, not only was this pipe allowed to lay directly on the ground so that rain water could seep into it, but that Witco had provided a water hose at that location which the truck drivers used to wash off their trucks, the immediate area, and the pipe itself after loading or unloading.

Robert C. Anderson, an expert metallurgist, testified that the pipe which failed here had been corroded paper thin, that there was no evidence of defective manufacturing of the pipe, and that this type of pipe was not strong enough for use under these circumstances. He also related at length the devastating effects of diluted sulfuric acid upon such a pipe.

It further appeared that key Witco employees were aware, before this accident occurred, that such corrosion was likely under the circumstances previously described. In summary, a clear and convincing case of negligence on the part of Witco as to the lack of proper maintenance and the creation of a hazardous situation on their premises was made out.

At the time of this accident, Milton L. Ulmer was supervisor of maintenance for Witco and Robert E. Bauer, Jr. was the assistant maintenance supervisor. The rules pertaining to executive officer liability were set out in Canter v. Koehring Company, 283 So.2d 716 (La.1973), to wit:

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

In his position, Ulmer was responsible for the maintenance of all pipes at the Witco plant which included the replacement of any defective sections. By his own admission, he had not delegated the responsibility of the acid receiving line to anyone. Therefore, under Canter, supra, only Ulmer and Witco would be liable in part and the judgment as to Bauer must be reversed. See Hornsby v. Ray, 327 So.2d 146 (3rd La.App., 1976) and Lyle v. National Surety Corp., 304 So.2d 743 (3rd La.App.1974), writs denied 309 So.2d 341.

The negligence of Messrs. Autry, Rogers and Hayes, executive officers of Younger Brothers, relates solely to their alleged failure to properly instruct Cain (and Trabeau) on the use of safety equipment which was furnished the drivers. When Cain was initially hired by Younger Brothers he was assigned to Trabeau for “checking out” and safety instructions. Both Cain and Trabeau testified that they were led to believe that full safety equipment was to be worn only when they were coupling or uncoupling their individual truck with or from Witco’s acid line. Particularly, that after the lines had been connected, the truck tank pressurized and unloading commenced, it was permissible to step back, remove their safety equipment and relax, visit, smoke, etc.

Hayes testified that he told both Cain and Trabeau that they could remove their safety equipment if they went around to the front of the truck. Yet, Hayes also testified:

“Q. Mr. Hayes, suppose that you and and I — I am now asking you about your instructions to the various truck drivers — suppose that you, as a truck driver, were unloading your truck and I, as another truck driver, were waiting and I walked up to pass the time of day with you, do you feel that I should have my safety equipment on at that time?
A. No.
Q. Then I take it that no such instructions have ever been given to any of the drivers, to December, 1971?
A. For that particular thing?
Q. Yes.
A. No.”

On the other hand, Autry and Rogers testified that the drivers should have been instructed to wear their full complement of safety gear whenever they were in close proximity to the commodity (acid), including the situation where they were sitting within twenty feet of the tanks and the rear of any truck that was being unloaded.

Mr. Autry, as executive vice-president of Younger Brothers, in charge of general overall operations of the company, stated it would have been against company policy for a supervisor not to have ridden with Cain within a reasonable period after the latter had received instructions from Tra-beau to see that he (Cain) had been properly trained. This was not done.

Based on these considerations, the jury found that Cain had not been properly instructed. Stated another way, these executive officers of Younger Brothers breached a duty, recognized by them, to properly and adequately train Cain as to the procedure he should follow to protect him against the type of injury he sustained. We do not find that the decision of the jury in this regard is manifestly erroneous. However, we do find that the jury committed error as a matter of law in finding all three of these executive officers liable.

As stated above, Autry was the executive vice president of Younger Brothers. The overall responsibility for safety was delegated to Rogers, that company’s director of personnel and safety. Rogers’ capabilities are not questioned. He devised the company’s safety program and made numerous trips to the Witco facility to assure himself that the rules were being followed. On occasion he personally conducted safety meetings.

The day-to-day responsibility for safety instruction rested with Hayes. He was the terminal manager. He readily admitted that if the jury found that Cain had not been properly instructed it would have been his (Hayes) responsibility. Further, that it was also his responsibility to see that Tra-beau was sufficiently informed so as to adequately train Cain. In addition, it was this officer’s responsibility to have a supervisor “check-ride” Cain. He also acknowledged that one of his instructions “might have been that he (Cain) need not wear safety equipment around anyone else’s truck, just his (Cain’s) own truck.”

We find no basis to hold that the delegation of this authority by Autry and Rogers to Hayes was unreasonable or wanting in that “degree of care required by ordinary prudence.” Judgment against Autry and Rogers should be reversed. Canter v. Koehring Co., above.

We now turn to the pivotal question of the plaintiff’s contributory negligence. That issue is not free from difficulty. We think, however, that the jury properly resolved it in favor of the plaintiff. The essence of the present inquiry is whether the plaintiff acted reasonably under the circumstances or whether he disregarded his own safety in placing himself in a position of known or foreseeable danger. Romano v. Bonstaff, 198 So.2d 499 (La.App. 4th Cir. 1967); Jordan v. Fidelity & Casualty Company of New York, 259 So.2d 442 (La.App. 3rd Cir. 1972); Lambert v. Padgett, 324 So.2d 512 (La.App. 1st Cir. 1975).

As we previously noted, Cain joined another driver; Trabeau, at a position already occupied and assumed safe. Trabeau was Cain’s safety instructor. This is, in itself, considerable proof of the reasonableness of Cain’s conduct.

Further, the record clearly indicates that the anticipated danger was an occasional, close proximity, spillage or drippage of the oleum from the coupling device and that the coupling and uncoupling was the critical safety period. Not to be expected was a full pressure blowout spraying acid in all directions for unusual distances.

It is argued that signs posted in the area requiring drivers to have their safety suits on were negligently disregarded by the plaintiff. However, Witco employees regularly walked around the discharging trucks at will without safety suits, at distances similar to those occupied by the two drivers here. When viewed as a whole, we conclude that Cain was not guilty of contributory negligence.

We are not unmindful of the fact that we have judged Cain’s conduct (on contributory negligence) somewhat differently than we have judged Hayes’ conduct (on negligence). The latter was experienced in all facets of acid transportation, loading, unloading, and storage. His superiors recognized the hazard of a possible rupture. Cain, because of his limited experience, did not. In considering the negligence and contributory negligence in a situation such as here presented, we are not bound to require identical conduct of the plaintiff and a defendant. “Varying factors affect what the standard of the reasonable man requires. For example, the defendant may have more information than the plaintiff as to the risk involved or by reason of the particular enterprise may be required to obtain this information. . . . These factors must be considered in measuring the reasonableness of each party’s conduct.” Prosser, Handbook of The Law of Torts, Ch. 11, p. 419 (4th ed. 1971); Hall v. Hartford Accident & Indemnity Company, 278 So.2d 795 (4th La. App., 1973), writs refused 281 So.2d 753.

Similarly, the argument raised by Witco that the plaintiff’s only recovery can be in workmen’s compensation must be rejected. The theory of this defense is that under the provisions of R.S. 23:1061, Witco was, under the circumstances of this case, a statutory employer, and thus Cain can not recover in tort against it. In support of this contention, they maintain that the work being done by Cain was part of the trade, business or occupation of Witco. The jury correctly rejected this defense.

The record clearly establishes that the hauling of acid was a function which Witco required for the successful operation of its business but was also one which they did not desire to become involved in. Mr. Anthony J. Zazzarino, the general traffic manager for Witco’s United States Division, testified at page 1001 of the transcript as follows:

“Q. All right. Does Witco Chemical Corporation haul any sulfuric acid at any places that use sulfuric acid?
A. In our own trucks?
Q. Right.
A. No, sir.”

And further, at page 1009 of the transcript:

“Q. Well, what was your statement?
A. I said that one of the reasons that we do not have private carriage at the Gretna location — I didn’t say that we didn’t have vehicles to transport sulfuric acid; I said one of the reasons that we are not involved in private carriage at the Gretna location.
Q. It’s because it’s the policy of Witco Chemical Corporation.
A. One of the reasons was that we have a policy not to be in the transportation business, yes.”

Therefore, that defense has no merit.

Inasmuch as we have concurred in the jury’s finding that Witco and an executive officer of Younger Brothers are joint tort feasors, it is not necessary that we address ourselves to the issue of prescription filed by the executive officers of these two companies.

We have no difficulty concluding that the quantum awarded by the jury should not be disturbed. Cain sustained burns over fifty percent of his body; their severity was well documented by the testimony of Dr. Charles H. Baughman, a surgeon and burn specialist who treated the plaintiff. The record reflects that an acid burn similar to that sustained by Cain, unlike other burns, continues to react on the body for seventy-two hours even though the wounds are thoroughly washed. The pain and suffering endured by Cain, particularly during the first few weeks, can only be depicted as indescribable. In addition to the intense discomfort, the scarring and the physical and emotional reactions accompanying this catastrophic injury plainly caused changes to his body and mind from which he would never recover. Likewise, the unfortunate death of the plaintiff some seven months after the trial herein can not serve as grounds for a reduction; the jury’s award is still appropriate in view of the four years of life endured by him under the conditions in which he found himself from the date of this accident.

As previously mentioned herein, at the beginning of the trial, all counsel stipulated that the workmen’s compensation insurer, Employers Mutual Insurance Company of Wisconsin, was entitled to recover its payments on behalf of Cain if recovery was had by the plaintiff. The judgment signed by the trial court specifically granted Employers Mutual Insurance Company of Wisconsin’s claim for reimbursement in the amounts of $8,771.00 for weekly compensation benefits and $24,088.78 for medical benefits. “Said judgment to be paid from the award of Jennings Cain with preference and priority.”

Employers Mutual has appealed contending that the judgment is erroneous in its failure to include reimbursement for additional medical expenses and weekly compensation payments paid subsequent to the date of trial. Of course, the amounts of any additional sums which may have been paid by the workmen’s compensation insurer are not contained in the record.

In Hall v. Hartford Accident & Indemnity Co., above, a similar situation was presented. There the court amended the judgment to allow a continuing credit against the judgment received by the plaintiff against the tort feasor to include the period of time that lapsed between the date of the trial and the conclusion of the matter on appeal. The same was done in Barrios v. Service Drayage Company, 250 So.2d 135 (4th La.App., 1971). The judgment in the instant matter should be similarly amended.

As noted above, Mr. Cain died subsequent to the date of the trial in the district court. On proper motion, Margaret Erdos Cain has been substituted as plaintiff in this cause, individually and as the provisional adminis-tratrix of the estate of Jennings C. Cain. Judgment in this cause should also be amended to reflect this substitution.

Accordingly, for the above reasons, the judgment of the district court is affirmed insofar as the same awards judgment in favor of Margaret Erdos Cain, individually and as provisional administratrix of the Estate of Jennings C. Cain, in the amount of FOUR HUNDRED TWENTY-FIVE THOUSAND AND 00/100 ($425,000.00) DOLLARS, and insofar as the same is against Witco Chemical Corporation, Milton L. Ulmer, The Travelers Indemnity Company, James H. Hayes, and Employers Insurance Company of Wausau, jointly, severally and in solido, with co-defendant, Employers Insurance Company of Wausau’s principal liability to be limited to the $100,000.00 limit of its policy, together with legal interest thereon from December 21, 1972, until paid. The judgment insofar as the same is against Robert Bauer, J. D. Autry, and James H. Rogers is reversed and set aside. The judgment insofar as the same relates to the workmen’s compensation insurer is amended and as amended is to read in its entirety:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of intervenor, Employers Insurance Company of Wausau, in the amount of EIGHT THOUSAND SEVEN HUNDRED SEVENTY-ONE AND 00/100 ($8,771.00) DOLLARS representing previously paid weekly workmen’s compensation benefits as well as TWENTY-FOUR THOUSAND EIGHTY-EIGHT AND 78/100 ($24,088.78) DOLLARS representing previously paid medical benefits, together with such additional amounts as it may be required to pay or has paid as workmen’s compensation benefits, together with legal interest thereon from date of judicial demand, until paid, said judgment to be paid out of the award to Margaret Erdos Cain, individually and as provisional administratrix of the Estate of Jennings C. Cain, with preference and priority.

The judgment with respect to third party plaintiffs, Witco Chemical Corporation, Milton L. Ulmer, Robert E. Bauer, Jr., and The Travelers Indemnity Company, against third party defendants, Jesse D. Autry, James H. Rogers and James H. Hayes, is reversed insofar as the same pertains to Robert E. Bauer, Jr., Jesse D. Autry and James H. Rogers. In all other respects this portion of the judgment is affirmed.

The judgment insofar as the same relates to third party plaintiffs, Jesse D. Autry, James H. Rogers, James H. Hayes, and Employers Insurance Company of Wausau, against Witco Chemical Corporation, Milton L. Ulmer, and The Travelers Indemnity Company, is reversed insofar as the same pertains to Jesse D. Autry and James H. Rogers; in all other respects this portion of the judgment is affirmed.

The judgment with respect to Witco Chemical Corporation’s third party demand against Younger Brothers for indemnity is affirmed.

The judgment insofar as the assessment of costs is amended to cast the defendants, The Travelers Indemnity Company, Milton L. Ulmer, Witco Chemical Corporation, James H. Hayes, and Employers Insurance Company of Wausau, in solido, for all costs of these proceedings.

In all other respects the judgment appealed is affirmed.

AFFIRMED IN PART, REVERSED IN PART, AMENDED IN PART, AND AS AMENDED AFFIRMED.


author: COVINGTON, Judge. SARTAIN, Judge

text:
    Nell Holden GOLSON v. James E. GOLSON.
    No. 10962.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.
    Rehearing Denied Feb. 14, 1977.
    Writ Granted April 22, 1977.

      Robert R. Rainer, Baton Rouge, for plaintiff-appellee.
    John R. Olds, Baton Rouge, for defendant-appellant.
    Before LANDRY, SARTAIN, COVING-TON, LOTTINGER and CHIASSON, JJ.
   COVINGTON, Judge.

This case involves the applicability of a rule of law referred to as the “divisible divorce” doctrine. The facts giving rise to its consideration are not in dispute.

James E. Golson (appellant) obtained a judgment of separation on his reconventional demand from Nell Holden Golson on the grounds of cruel treatment. In the judgment he was condemned to pay to his wife the monthly sum of $229.12 in cash and the monthly mortgage payment on the former matrimonial domicile of $70.88. Appellee was given the use of the home. This judgment was signed on April 15, 1975. On October 14, 1975, appellee caused a rule to issue for the purpose of obtaining an execu-tory judgment in the amount of the accumulated arrearage. Appellant, in response to the rule, filed an exception of no cause of action based on the fact that he had obtained a divorce judgment from appellee in Tennessee on August 5, 1975. The trial judge overruled the exception, fixed the arrearage in the amount of $916.48 and granted judgment in this amount in favor of appellee. It is from this judgment that appellant appeals. We reverse in part, amend and, as amended, affirm.

At the hearing on the rule all pertinent facts were stipulated: the judgment of separation, above; appellant’s payments thereunder through July, 1975; the Tennessee judgment, above; constructive service in Tennessee in accordance with Tennessee law by publishing notice of the proceedings in the local newspaper for a period of four weeks but without direct notice to or any knowledge thereof by appellee; judgment in Tennessee obtained by default; the decree being silent as to alimony pendente lite or any other type of maintenance and support obligation on the part of appellant.

Based on these facts, the trial judge in his written reasons for judgment stated:

“As argued by counsel for Mrs. Golson, there is and must be a divisible divorce doctrine. See the U.S. Supreme Court case of Estin v. Estin, 334 U.S. 541 [68 S.Ct. 1213], 92 L.Ed. 1561 and a companion case, Kreiger v. Kreiger, 334 U.S. 555 [68 S.Ct. 1221], 92 L.Ed. 1572 and the later case of Vanderbilt v. Vanderbilt, 354 U.S. 416, 1 L.Ed.2d 1456, 77 S.Ct. 1360, as cited. Otherwise, this husband would be permitted to terminate in an out-of-state court a vested right granted Mrs. Golson by valid judgment of a Louisiana court. Her right thus vested in Louisiana law could not have been terminated by a Louisiana court unless Mrs. Golson, herself, committed certain acts that would have rendered her further at fault in the premises. If Mrs. Golson had continued to live in Louisiana and committed no improper act, no Louisiana court could have divested her of the right once acquired in the judgment of separation. It follows as night the day that no court of a sister state should be able to do to a Louisiana citizen that which the court of her own domicile could not do. Therefore, Mrs. Golson’s right to alimony continues at least until such time as a valid Louisiana divorce decree could have been attained.
“This court recognizes the validity of the Tennessee divorce but denies any effects flowing from that judgment which would deprive the Louisiana wife of her vested right under the laws of this state.

Appellant argues that a prior judgment of separation and all incidents thereto, including alimony pendente lite and child support, are abated by a subsequent valid divorce. Thornton v. Floyd, 229 La. 237, 85 So.2d 499 (1956); White v. Morris, 236 La. 767, 109 So.2d 87 (1959); Kennedy v. Kennedy, 261 So.2d 657 (La.App. 4th Cir., 1972); Starkey v. Starkey, 209 So.2d 593 (La.App. 1st Cir., 1967); Hampson v. Hampson, 271 So.2d 898 (La.App. 2d Cir., 1972); Hill v. Hill, 304 So.2d 922 (La.App. 1st Cir., 1974); Webster v. Webster, 308 So.2d 302 (La.App. 1st Cir., 1975); Vetter v. Vetter, 299 So.2d 899 (La.App. 2d Cir., 1974); Broussard v. Menard, 316 So.2d 485 (La.App. 3rd Cir., 1975). Appellant particularly notes that the Starkey, Hampson, Hill and Webster cases, above, involved valid foreign ex parte divorce judgments. Accordingly, appellant submits that Louisiana has in the past and should in the instant matter give full faith and credit to the Tennessee judgment.

Appellee on the other hand contends that the rule set forth in Estin, Keiger and Vanderbilt, above, is applicable here. Further, that the effects of abatement pronounced in Thornton v. Floyd, above, were improperly applied in the Starkey, Hampson and Hill cases, above. In Thornton, the court stated: (85 So.2d 499, 501):

“It necessarily follows that a judgment decreeing a divorce between the spouses, with its attending finality and conclusiveness, generally abates all judgments of separation from bed and board, including all incidents flowing therefrom. A judgment of divorce becomes determinative of the rights of all parties. When such a decree incorporates matters dealing with the custody of children and rights to alimony for maintenance and support, those provisions are deemed not permanent but matters subject to judicial change or modification. However, when a definitive decree of divorce is silent as to the custody of children and of an award of alimony necessary for their maintenance and support, we are convinced that such a judgment, being final and conclusive, abates and renders ineffective a judgment of separation with all of its incidents and cannot be altered or modified by a summary proceeding seeking thereby to revive the incidents of the separation suit which have not been presented for adjudication in the divorce suit.”

However, appellant points out that in Thornton a foreign ex parte judgment was not involved. The husband, wife and children were all domiciled in Louisiana. The separation and divorce decrees were rendered by a Louisiana court which had jurisdiction over all of the parties. He submits that it was error for Starkey to say that it was controlled by Thornton when Mrs. Starkey had made no appearance in the Texas court which granted her husband his divorce and particularly when the court in Starkey said that Mrs. Starkey committed procedural error in attempting to modify the separation judgment following a judgment of divorce, and that her remedy was by a “direct and separate action.” In Starkey, this court sustained an exception filed by the husband and pretermitted any “consideration of the issues sought to be raised” by the “principles enunciated in the Vanderbilt and Estin cases, supra.” Therefore, appellee claims that the court in Hampson was in error when it stated that the principles set forth in Vanderbilt and Estin were rejected in Starkey. Appellee concludes by urging that neither Hampson nor Starkey should stand for the proposition that an ex parte foreign divorce decree, under any and all circumstances, abates alimony provisions contained in a Louisiana judgment of separation.

In Estin, the parties, while domiciled in New York, separated in 1942. In 1943, the wife sought and obtained a judgment of separate maintenance wherein the husband was ordered to pay her $180.00 per month as “permanent alimony.” In January of 1944 the husband moved to Nevada where he obtained a divorce in 1945 on the grounds of three years continual separation without cohabitation. The decree contained no provision for alimony and the husband discontinued his payments under the New York judgment. Thereupon, the wife sued in New York for a supplemental judgment for the amount of the arrearage. This latter controversy found its way to the U.S. Supreme Court. There the court noted that the courts of New York had found that its support judgment “survived” the Nevada decree and was therefore binding on the federal tribunal unless it was violative of the Full Faith and Credit Clause of the Federal Constitution.

The court reasoned that whereas each state must recognize and give full faith and credit to a judgment of a sister state, the requirement to do so is not without some limitation. It recognized that both Nevada and New York had legitimate interests in the premises. Nevada’s interest was in the determination of the marital status of its citizen. New York’s interest rested on the state’s natural concern lest one of its citizens become dependent upon it for maintenance and support. The New York judgment was declared to be a property interest of the wife. It was created by New York in a proceeding in which both parties were present and imposed obligations on the husband and vested certain rights in the wife. Any effort to adjudicate her rights in Nevada was declared to be an “attempt to exercise an in personam jurisdiction over a person not before the court.” Thus, the court stated, 334 U.S. 541, 68 S.Ct. 1213, 1218, 92 L.Ed. 1561:

“The result in this situation is to make the divorce divisible — to give effect to the Nevada decree insofar as it affects marital status and to make it ineffective on the issue of alimony. It accommodates the interests of both Nevada and New York in this broken marriage by restricting each State to the matters of her dominant concern.” (Emphasis ours)

The dissents were bottomed on the premise that alimony in New York is an obligation incidental to and growing out of the marriage and if New York is required to recognize the divorce which dissolves the marriage the consequence should be the termination of the obligation.

Vanderbilt went a step further. The husband and wife separated while living in California. In February of the next year the wife moved to New York where she resided thereafter. In March of that year the husband filed suit for divorce in Nevada where he was domiciled. The wife was not served with process in Nevada and did not appear before the divorce court. In June the Nevada court rendered a divorce judgment. In April of the next year the wife instituted an action in New York praying for separation and for alimony. Again, the New York court held that it was for that state to determine the alimony rights of the wife.

The United States Supreme Court said (at 354 U.S. 418, at 77 S.Ct. 1362, 1 L.Ed.2d 1459):

“Since the wife was not subject to its jurisdiction, the Nevada divorce court had no power to extinguish any right which she had under the law of New York to financial support from her husband.”

Thus, the constitutional rule is that a court can not adjudicate a personal claim or obligation unless it has jurisdiction over the person of the defendant. Vanderbilt v. Vanderbilt, above.

It will make for clarity to give a brief statement of the law concerning foreign divorces at this point. A valid foreign judgment of divorce is entitled to full faith and credit pursuant to the United States Constitution, Article IV, Section 1. Williams v. North Carolina (Williams II), 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577 (1945).

A foreign divorce judgment is valid and entitled to recognition where the court rendering the judgment had jurisdiction to grant the divorce by virtue of its having jurisdiction over the domicile of the party in whose favor the divorce was granted. Williams II, supra; and Williams v. North Carolina (Williams I), 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279 (1942).

The instant record reflects that the husband had established a good faith domicile in Tennessee, the state of rendition of the judgment of divorce, and the validity of the divorce judgment is not seriously questioned. Hence, the Tennessee divorce must be recognized in Louisiana. See Hill v. Hill, above.

The effect to be given a foreign divorce depends on whether the divorce was a contradictory proceeding or an ex parte proceeding. In general, a contradictory proceeding, where the divorce court had in personam jurisdiction, adjudicates all rights of the parties incidental to the divorce, while an ex parte divorce does not.

This effect of divorce judgments is illustrated by 24 Am.Jur.2d “Divorce and Separation,” sec. 992, p. 1128-1129, as follows:

“The divorce court must have jurisdiction of the wife in personam in order to adjudicate or cut off her right to alimony. While a court may gain jurisdiction to grant a divorce by constructive service upon a nonresident wife, such a service does not give it jurisdiction to adjudicate alimony rights, and so it is held that an ex parte divorce obtained by the husband cannot affect the right which the wife may have to alimony under the laws of another state, and any express or implied adjudication against her claim is void and will not be given effect by comity or under the full faith and credit clause.”

As an example of the effect to be given the ex parte divorce judgment, the United States Supreme Court in Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561 (1948), decided that a Nevada divorce court, which had no personal jurisdiction over the wife, had no power to terminate a husband’s obligation to pay alimony as required by a pre-existing New York separation judgment.

This effect is emphasized by the language of the United States Supreme Court in Vanderbilt v. Vanderbilt, above, as follows (354 U.S. at 418, 77 S.Ct. at 1362, 1 L.Ed.2d at 1459):

“It has long been the constitutional rule that a court cannot adjudicate a personal claim or obligation unless it has jurisdiction over the person of the defendant. Here, the Nevada divorce court was as powerless to cut off the wife’s support right as it would have been to order the husband to pay alimony if the wife had brought the divorce action and he had not been subject to the divorce court’s jurisdiction.”

This is where the doctrine of “divisible divorce” comes in. This doctrine is rooted in a conception of marriage as a “bundle of incidents,” some of which survive an ex parte divorce.

A reasonable basis for recognizing the doctrine of “divisible divorce” has been stated:

“And although the ex parte divorce must be given sufficient recognition to permit remarriage and the raising of a family, there is no compelling reason why it should also terminate the wife’s support rights. Furthermore, the state in which the wife lives and in which family property may be located does have an interest in preserving such incidents of marriage as the support obligation.” Comment, Divisible Divorce, 76 Harv.L.Rev. 1239 (1963).

We now turn to our own law relative to the rights and responsibilities of wives and husbands in Louisiana. The basics are: Each owes to the other the mutual obligation of support and assistance. C.C. Art. 119. If the wife does not have sufficient income for her maintenance, the husband is obliged to support her in proportion to her needs and his means. C.C. Art. 148. This obligation continues throughout the existence of the marriage, even though the wife has been deemed guilty of fault. Hillard v. Hillard, 225 La. 507, 73 So.2d 442; and Boucvalt v. Boucvalt, 235 La. 421, 104 So.2d 157. Following the judgment of divorce a wife who is without fault is entitled to alimony. C.C. Art. 160.

Now, with respect to domiciliaries, that is, where both husband and wife are residents of Louisiana at the time of the judgment of separation and of the divorce, it would appear that a policy of strict abatement should follow and the latter judgment should terminate all incidental payments, alimony pendente lite, custody and child support contained in the former judgment. Thornton v. Floyd, above. Both parties are personally subject to the jurisdiction of the court. Each has the opportunity to see that his (her) rights are fully protected. The legitimate interests of the state sought to be protected by the “divisible divorce” doctrine, which limits the impact of the Full Faith and Credit Clause, are secure until in personam jurisdiction is had on all parties.

We note that our Supreme Court has not expressed itself as to what effect it would give to a foreign ex parte divorce decree vis a vis the incidental aspects of a judgment of separation of one of our own courts. The issue was not presented in Thornton and White, above. Although it can be reasonably argued that the result reached in Starkey was tantamount to a rejection of the principles announced in Estin and Vanderbilt, above, the decision in Starkey was limited to the situation that where a wife seeks alimony and/or support award after divorce, she must do so by an independent proceeding and not in the prior separation proceeding.

We understand and interpret Estin, Kreiger and Vanderbilt to mean that a court of the state of domicile of the wife can refuse to recognize or give full faith and credit to a foreign divorce judgment as it affects alimony being received by the wife, where there was no in personam jurisdiction over the wife, and which judgment would in all actuality terminate the alimony the wife was receiving under a separation judgment rendered by the domicile state having in personam jurisdiction over both parties. Stated another way, this court can refuse to give recognition and full faith and credit to a foreign divorce judgment, as it affects alimony, which would terminate the alimony the wife was receiving from a separation decree if the foreign court had no personal jurisdiction over the wife.

While some may want to draw a distinction between a wife at fault in a separation proceeding and one not at fault, we can see no distinction for the purpose of recognizing or giving full faith and credit to a foreign divorce judgment as it affects alimony being received by the wife. We are convinced that for a divorce judgment to be effective in terminating the alimony the wife is receiving from the separation judgment, there must be personal jurisdiction over the wife. Starkey, by this court, presents no problem, for it dealt with the manner in which one should proceed in Louisiana to receive alimony and support after a divorce. This did nothing more than follow Thornton and make a procedural rule consistent regardless of which court rendered the divorce judgment. However, once a wife is receiving alimony, the rules to be applied in terminating that alimony should have as their basis personal jurisdiction.

Although the Supreme Court has not been confronted with the proposition before us, we deem that the proper position for the courts of this state to take is that until a divorce is rendered by a court with in personam jurisdiction over the wife, or the foreign divorce judgment is recognized and given full faith and credit by a court of competent jurisdiction in this state, which would have personal jurisdiction over the wife, the right to alimony pendente lite granted the wife by C.C. Art. 148 cannot be terminated. We further believe, however, that in the interest of all parties, the effective date of the recognition of the foreign divorce judgment should be that date it is presented to a Louisiana court for recognition, either in a proceeding to do so or in any other proceeding.

The trial judge recognized and gave full fáith and credit to the foreign divorce judgment, but ruled that it did not terminate the alimony award, and thus awarded ap-pellee judgment for alimony pendente lite for the months of August, September, October and November, 1975, computed at the rate of $229.12 per month. The appellant having presented his foreign divorce judgment for recognition to the trial court on October 21, 1975, he owes alimony only for the months of August, September and the first 21 days of October, 1975, or a total of $613.45.

Therefore, for the above and foregoing reasons the judgment of the trial court is reversed insofar as the same failed to recognize that appellant’s divorce decree terminated appellee’s right to alimony effective October 21, 1975; it is amended by reducing the judgment therein granted from $916.48 to the sum of $613.45; and, as amended, it is affirmed. All costs of these proceedings are assessed equally between the parties.

REVERSED IN PART, AMENDED AND AS AMENDED AFFIRMED.

SARTAIN, Judge

(concurring in part, dissenting in part).

I fully agree with the majority’s decision relative to the application of the “divisible divorce” doctrine. However, I do not agree with the extent to which this doctrine is applied in the instant matter. For convenience, I quote the following language from the majority opinion:

“We now turn to our own law relative to the rights and responsibilities of wives and husbands in Louisiana. The basics are: Each owes to the other the mutual obligation of support and assistance. C.C. Art. 119. If the wife does not have sufficient income for her maintenance, the husband is obliged to support her in proportion to her needs and his means. C.C. Art. 148. This obligation continues throughout the existence of the marriage, even though the wife has been deemed guilty of fault. Hillard v. Hillard, 225 La. 507, 73 So.2d 442; and Boucvalt v. Bouevalt, 235 La. 421, 104 So.2d 157. Following the judgment of divorce a wife who is without fault is entitled to alimony. C.C. Art. 160.”

While the above is a correct statement of our law, I think it should go one step further. In Louisiana, unlike many common law jurisdictions, a wife is entitled to alimony following a divorce. C.C. Art. 160. However, this right is conditioned upon a finding of fact of an absence of fault on the part of the wife. If fault has been determined in the proceedings decreeing a prior obtained judicial separation (as here) it is not necessary for the fault issue to be retried. Fulmer v. Fulmer, 301 So.2d 622 (La.1974).

The majority has concluded that the alimony pendente lite rendered during the judgment of separation (albeit on the wife’s fault) continues in effect until such time as the husband files a suit in this state to terminate his obligation under C.C. Art. 148.

It is a policy decision for the courts of this state to determine the effects to be given an ex parte foreign divorce judgment. The majority would have the husband either in response to a rule to accumulate arrearages or in a separate proceeding go to the expenses of returning to the state to seek relief from ‘a judgment where he would not have to do so had the judgment of divorce been obtained in Louisiana.

Prom a pure policy standpoint I see no practical reason to inflict this requirement upon the husband or to require the wife to seek legal advice as to her rights when placed in a position of having to make a choice of defending her husband’s action or permitting it to go by default. Under the facts of this case any effort on her part to continue receiving alimony would have been vain and useless. Fulmer v. Fulmer, above. The dockets of our courts are already crowded and should not be further cluttered where the result is evident.

On the other hand, a husband who obtains a foreign ex parte divorce following a judgment of separation where fault has not been determined continues at his peril. Under the divisible divorce doctrine the judgment of alimony in the separation proceedings would continue until such time as he seeks relief by putting fault at issue.

Accordingly, I would have given the wife in the instant cause the alimony due her on August 1,1975 and would not have awarded her alimony for any payment due after her husband received his judgment of divorce on August 5, 1975.

      . Which in effect overrules this court’s decision in Starkey v. Starkey, 209 So.2d 593 (1967), if the same is construed to be a rejection of the holdings in the Kreiger, Estin and Vanderbilt cases. It also overrules this court’s previous decision in the Hill and Webster cases and puts us at odds with the decision of the Second Circuit in the Hampson case, (citations contained in the original opinion).


author: LOTTINGER, Judge.

text:
    Donald James MASHBURN, d/b/a Maison de Mashburn v. Richard H. COLLIN et al.
    No. 11027.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.
    Rehearing Denied Feb. 14, 1977.
    Writ Granted March 31, 1977.

      Carl W. Cleveland, New Orleans, for Donald James Mashburn dba Maison de Mashburn, plaintiff-appellant.
    Garic Kenneth Barranger, Covington, for Richard H. Collin, defendant-appellee.
    Rutledge C. Clement, Jr., New Orleans, for The States Item and The Times-Picayune Publishing Corp., defendants-appel-lees.
    Before LANDRY, SARTAIN and LOT-TINGER, JJ.
   LOTTINGER, Judge.

This is a proceeding for defamation in which Donald James Mashburn, doing business as Maison de Mashburn, contends that his restaurant business near Hammond, was seriously damaged by defamatory statements by Richard H. Collin, known as The Underground Gourmet, which were published in an article in the New Orleans States Item on Saturday, June 22, 1974. The Times-Picayune Publishing Corporation, the publisher of the New Orleans States Item, originally named as a defendant, settled its claim with the plaintiff and was dismissed. The Trial Judge granted a motion for summary, judgment filed by defendant, Richard H. Collin, and plaintiff has appealed.

In oral reasons for judgment, the Trial Judge stated:

“It is the opinion of this Court that the Firestone case did not have the effect of eliminating the New York Time’s doctrine in a factual situation such as is presented to this Court in this particular case. That is, that a person who operates a public restaurant, who advertises it to the public, is subject to fair criticism in the absence of a showing of actual malice, and it is a requirement that it was published with actual knowledge of its falsity or reckless disregard as to its truth or falsity.”

The plaintiff-appellant contends the Trial Judge erred:

1. In considering the defendant’s untimely motion for summary judgment filed long after all pleading deadlines had elapsed at a time when it was difficult for plaintiff to respond effectively to the motion for summary judgment due to preparation of the case for trial;
2. In holding that pursuant to the First Amendment to the United States Constitution Donald James Mashburn was a “public figure” who must prove “actual malice” in order to recover for defamatory utterances made by the defendant;
3. In holding by implication that a food critic enjoys an absolute privilege incapable of abuse which shields him from suit for his defamatory utterances; and
4. In granting a motion for summary judgment despite the existence of serious controverted factual issues, especially with respect to Mr. Collin’s malice and whether Mashburn was a “public figure”.

As to the plaintiff-appellant’s first specification of error, we need only point out that LSA-C.C.P. Art. 966 provides that a motion for summary judgment by the defendant may be made at any time. Thus, there was no error on the part of the Trial Judge in considering the motion for summary judgment on the day the case was fixed for trial on the merits.

The second specification of error involves the constitutional question of whether Mr. Mashburn, as a restaurant operator, is a public figure under the First Amendment of the United States Constitution as the term public figure is defined by the United States Supreme Court. The term public figure requires definition because if Mr. Mashburn is a public figure, then the First Amendment of the Constitution and' the jurisprudence impose upon state law a requirement that actual malice be demonstrated in order for plaintiff to recover. A reading of the recent case of Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976) and the case of Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) brings us to the conclusion that the Supreme Court has held that unless a person thrusts himself to the forefront of a particular public controversy in an effort to influence the resolution of the issues involved in the controversy or assumes a role of especial prominence in the affairs of society, he is not considered a public figure. The fact that Mr. Mashburn ran a restaurant open to the public and advertised his restaurant publicly does not make him a public figure within our appreciation of the United States Supreme Court definition thereof. Mr. Mash-burn has in no way attempted to influence society by the act of operating a restaurant business. Therefore, it is not necessary that a showing of actual malice be made before plaintiff can recover, and thus, the Trial Judge was in error in his interpretation and application of the Supreme Court decisions in holding Mr. Mashburn a public figure.

We are of the opinion that any expressions by the Trial Judge in his written reasons for judgments which would give the impression that he was holding that a food critic enjoys an absolute privilege in Louisiana were based entirely on his misinterpretation and misapplication of the United States Supreme Court decisions. There are no reported cases in Louisiana dealing with a food critic. At present, this Court is not called upon to determine if such a privilege should exist in Louisiana, and if so, under what conditions, and therefore, we pretermit any discussion thereon.

In Louisiana the elements necessary to make defamatory words actionable are (1) publication, (2) falsity, (3) malice, either actual or implied, and (4) resulting injury. We have reviewed the record in this proceeding and find it impossible to state that, “there is no genuine issue of material fact,” as provided by LSA-C.C.P. Art. 966 dealing with summary judgment, so as to entitle the defendant to a motion for summary judgment in his favor.

Therefore, for the above and foregoing reasons the judgment of the Trial Court is reversed, and this matter is remanded to the Trial Court for further proceedings in accordance with law and the views expressed herein. All costs of this proceeding are to be paid by defendant-appellee.

REVERSED AND REMANDED.


text:
    GENERAL CREDIT PLAN, INC., Plaintiff-Appellant, v. Thomas E. PEARSON et al., Defendants-Appellees.
    No. 11028.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.
    Rehearing Denied Feb. 14, 1977.
    Writ Refused March 25, 1977.

      George R. Covert, Baton Rouge, for plaintiff-appellant General Credit Plan, Inc.
    Ben L. Day, Baton Rouge, for intervenor Walter Morton.
    John R. Sheppard, Baton Rouge, for defendant-appellee City of Baton Rouge.
    Ralph L. Roy, Bryan E. Bush, Jr., Asst. Dist. Attys., Baton Rouge, for defendant-appellee Ossie B. Brown, District Atty. for the Parish of East Baton Rouge, State of La.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   SARTAIN, Judge.

The legal issues presented in this litigation arise out of an armed robbery of unmounted diamonds and their recovery by the authorities. During the interim period they were first pledged to a police informant and later mortgaged.

The participants are: Walter Morton, the victim of the robbery; Thomas E. Pearson, an accomplice in the robbery; Marion Ales-si, a police informant; representatives of the Police Department of the City of Baton Rouge and the District Attorney’s office for the Parish of East Baton Rouge; and, General Credit Plan, Inc., through its manager, Orville Howes.

The following events are not disputed. In April of 1972, during the course of an armed robbery a certain quantity of unmounted diamonds were stolen from Walter Morton.

Approximately a year later, Pearson approached Alessi seeking a loan of $10,000.00 for a period of ninety days. The diamonds were to be pledged or pawned to Alessi as security for the loan. Alessi informed Detectives Alford and Rogillio of the Baton Rouge Police Department of Pearson’s request. Ultimately, the loan was made and Alessi was given the diamonds. He placed them in a safety deposit box at the Fidelity National Bank of Baton Rouge.

Deputy Alford examined the diamonds at the bank and it was determined that they were in fact the diamonds that had been stolen from Morton. Whereupon, a plan was devised to apprehend Pearson when he attempted to redeem the diamonds from Alessi. Because Alessi was apprehensive about dealing with Pearson a second (unidentified) undercover agent was used.

Pearson owned and operated a jewelry store in downtown Baton Rouge.

Orville Howes, as the sole owner, operated and managed General Credit Plan, Inc. His principal office is also located in Baton Rouge. Howes had known Pearson for five or six years and they frequently met for coffee. Several months prior to the instant transaction, Pearson borrowed $1400.00 from Howes and gave several diamond rings as security. The loan was timely paid. During the course of later visits Pearson asked Howes if he would lend him $10,000.00 to be secured by unmounted diamonds. Howes agreed. On April 26, 1973, appropriate instruments were drafted and executed and the money was advanced Pearson.

The second undercover agent was then called to Pearson’s place of business. He had the diamonds with him and turned them over to Pearson. For some reason, not explained in the record, Pearson took half of the diamonds and gave them to Howes. When Pearson returned to his place of business, the agent left with the $10,000.00. As he left he signaled Deputies Alford and Rogillio who were waiting nearby and Pearson was arrested. Pearson, along with the remaining half of the diamonds and the $10,000.00, was taken to Police Headquarters.

Alessi was called. He came to the interrogation room and took “his” $10,000.00 and left. Pearson, of course, was incarcerated.

The transaction between Howes and Pearson occurred at approximately 3:30 p. m. or after banking hours. Howes kept the diamonds with him overnight and the next morning he placed them in his safety deposit box at another bank. He was unaware of Pearson’s arrest the previous afternoon until a mutual friend asked “if he had read the morning paper.” That afternoon, Howes (suspecting that his security was involved) and his attorney went to the District Attorney’s office and advised the latter of the loan and the diamonds. The District Attorney, thinking that the $10,-000.00 was being held as evidence, indicated it was “just a matter of filing some legal forms” to get the money released. Subsequent events disclosed that the diamonds were stolen and that the $10,000.00 had been released to Alessi.

Appellant contends that the City of Baton Rouge and the District Attorney for the Nineteenth Judicial District (East Baton Rouge Parish) are liable to him for the failure of their respective employees to adhere to the requirements of R.S. 15:41 and C.Cr.P. Art. 167, relating to the disposal of property held as evidence in a criminal proceeding; and alternatively, that these same employers are liable for actionable negligence on the part of their respective employees for permitting the release of the funds without first ascertaining the origin and rightful ownership thereof. The failure of the trial judge to impose liability on these named defendants for these same reasons is also cited as error here on appeal.

The misconduct alleged to have been committed by the officers is, as stated above, their failure to comply with R.S. 15:41 and C.Cr.P. Art. 167. The risk encountered is that their failure to do so permitted the money to fall into the hands of a third party (Alessi) before appellant could assert his right to the same.

When liability is sought to be imposed for the breach of a duty allegedly imposed by statute, it is necessary to determine if the risk and harm “encountered by the plaintiff fall within the scope of the protection of the statute.” Dixie Drive It Yourself System v. American Beverage Company, 242 La. 471, 137 So.2d 298, 304 (1962). More particularly, inquiry is made to determine whether the plaintiff falls within that class of persons sought to be protected by the statute. We do not find that R.S. 15:41, relied upon by appellant, imposes any duty on these officers that inures to the benefit of or was designed to protect plaintiff.

The statute refers to the “owner” of “property seized” in connection with a criminal proceeding. Plaintiff was not the owner of the property ($10,000.00), Pearson was the owner. Howes gave the money to Pearson, Pearson gave it to the undercover agent. Howes does not claim that he was the owner of the property after he gave it to Pearson. His complaint is that the money was released before he could assert a claim against Pearson. Howes is in no better position than any other creditor of Pearson. He readily testified that he knew and had done business with Pearson. He made the loan to him because “I trusted the man.” The legal relation between appellant and Pearson is that of creditor-debtor. The statute is designed to afford the owner of property seized in a criminal proceeding a means by which that owner can effectuate the release of his property where the same is not needed for evidence. It is not designed to protect a general creditor of the owner.

We apply the same reasoning above with respect to appellant’s contention that these officers negligently permitted the conversion of $10,000.00 i. e., that they permitted the money to be taken by Alessi. However, we go one step further: In Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620, 623, in considering the extent to which legal consequences flow after an alleged act of negligence, the court stated: “. . . The same policy considerations

which would motivate a legislative body to impose duties to protect from certain risks are applied by the court in making its determination. ‘All rules of conduct, irrespective of whether they are the product of a legislature or are a part of the fabric of the court-made law of negligence, exist for purposes. They are designed to protect some persons under some circumstances against some risks. Seldom does a rule protect every victim against every risk that may befall him, merely because it is shown that the violation of the rule played a part in producing the injury. The task of defining the proper reach or thrust of a rule in its policy aspects is one that must be undertaken by the court in each case as it arises. How appropriate is the rule to the facts of this controversy? This is a question that the court cannot escape.’ Malone, Ruminations on Cause-In-Fact, 9 Stanford L.Rev. 60, 73 (1956).”

We do not find that the officers in the instant case could or should have anticipated that the money given to the undercover agent was in fact obtained from appellant. To the contrary, they had every reason to believe that it was Pearson’s money and that Pearson fully intended to give it to Alessi. The record is devoid of any evidence to the contrary. For an excellent discussion of duty-risk analysis, see: Robertson: Reason Versus Rule in Louisiana Tort Law, Etc., 34 L.L.Rev. 1 (1973).

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

AFFIRMED.

      . This case was originally consolidated with Walter Morton v. General Credit Plan, Inc., brought by Walter Morton seeking the possession of the stolen diamonds. However, at the time of trial it was stipulated that only the instant matter would be litigated.

      . If there is a specific statute concerning the disposition of the seized property, the property shall be disposed of in accordance with the provisions thereof.
      If there is no such specific statute, the following governs the disposition of property seized in connection with a criminal proceeding, which is not to be used as evidence or is no longer needed as evidence:
      * * jfc * if:
      Where the release of seized property is sought by a person claiming to be the owner, it shall be released only upon motion contradictorily with the clerk of court. In all other cases the court may either render an ex parte order for the disposition of the property as herein provided on motion of any interested person, or on its own motion, or the court may require a motion contradictorily with the apparent owner or the person in possession of the property at the time of the seizure.

      . When property is seized pursuant to a search warrant, it shall be retained under the direction of the judge. If seized property is not to be used as evidence or is no longer needed as evidence, it shall be disposed of according to law, under the direction of the judge.


text:
    Herbert KOPPENOL et al., Plaintiffs-Appellants, v. ST. TAMMANY PARISH HOSPITAL et al., Defendants-Appellees.
    No. 11033.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.
    Rehearing Denied Feb. 14, 1977.
    Writ Refused March 31, 1977.
    Garic K. Barranger, Covington, for plaintiffs-appellants.
    Dermot S. McGlinchey, Frederick B. Alexius, New Orleans, for St. Tammany Parish Hospital.
    William S. Penick, New Orleans, for New Orleans Blood Bank, Inc.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   SARTAIN, Judge.

It is alleged that Gail Koppenol contracted serum hepatitis as a result of a blood transfusion administered to her on March 15,1974, during the course of surgery. She, together with her husband, instituted the present action for special and general damages against St. Tammany Hospital, their liability insurer, Argonaut Insurance Company, and New Orleans Blood Bank, Inc., the supplier of the whole blood (defendants).

Plaintiffs’ suit is couched in terms of strict liability and traditional negligence. The issue as to the latter grounds are not before us. The applicability of the doctrine of strict liability was raised via a motion for partial summary judgment filed by the defendants, who contend that C.C. Art. 1764(B), infra, precludes any recovery by plaintiffs “under any implied warranty incidental to the transfusion of human or blood plasma by defendant(s).” The trial judge agreed and rendered judgment dismissing plaintiffs’ petition insofar as it seeks relief under the theory of express or implied warranty, strict liability, or any legal theory other than negligence. It is from this judgment that plaintiffs have appealed. We affirm.

At the outset we should note the significance of the application of strict liability vis a vis negligence.

“The invocation of strict liability brings with it a corresponding change in the conventional rights and responsibilities of the parties in a delictual action. In essence, it is liability without proof of specific substandard conduct. All that is required is that the plaintiff prove a defect in the product; that at the time of its failure it was in normal use; that it was unreasonably dangerous in that use; and that the injuries were caused by the defect. The defenses in such an action are the negative of any of the above plus the assumption of risk as distinguished from contributory negligence. Hastings v. Dis Tran Products, Inc., 389 F.2d 1352 (W.D.La.1975); and Langlois v. Allied Chemical Corporation, above.”
Jim Dixon, Jr. v. J. E. Gutnecht, et al., 339 So.2d 1285 (1st La.App., 1976).

C.C. Art. 1764 was amended by Act 301 of 1968 by adding in pertinent part Section B thereof which reads as follows:

“Notwithstanding the provisions of Section A.2. of this Article, the implied warranties of merchantability and fitness shall not be applicable to a contract for the sale of human blood, blood plasma or other human tissue or organs from a blood bank or reservoir of such other tissues or organs. Such blood, blood plasma or tissue or organs shall not for the purposes of this Article be considered commodities subject to sale or barter but shall be considered as medical services.”

Plaintiffs frankly submit that their allegations in support of strict liability “are made in the teeth of” the aforementioned amendment to C.C. Art. 1764. However, they contend that the amendment itself is violative of the due process clause of the Louisiana Constitution of 1974 (Art. 1, Sec. 2) by depriving them of “property, life and the right to pursue happy and healthy life . ” “The essence of the argument being made here is that an unfair discrimination has been exercised by the Legislature against a minority group which was at the time of the passage of the said law unidentifiable.” Their position is that the enactment of the amendment constitute an invidious discrimination against a class of persons who “were unidentifiable both singly and as a group . . ., a class whose constitution was unknown to the individual members thereof at the time of the passage of that law which bound them into a group of scapegoats, to be driven into jaundiced sands of hepatitis to languish and perish that the remaining happy blood recipients might thrive and flourish.”

The rationale supportive of the imposition of strict liability in defective products cases is that “public policy demands that the burden of accidental injuries caused by products ... be placed upon those who market them, and be treated as a cost of production against which liability insurance can be obtained; . . . the consumer ... is entitled to the maximum of protection at the hands of someone, and the proper persons to afford it are those who market the products.” Restatement (Second) of Torts, § 402 A (1965), Comment c. For an excellent discussion on products liability in Louisiana, its jurisprudential history and current status, see Robinson, Manufacturers’ Liability for Defective Products in Louisiana Law, 50 Tul.L.R. 50 (1975).

Thus the question posed here is whether the amendment to C.C. Art. 1764, above, represents a valid and justified exercise of the legislative power for it does in fact purport to restrict the application of strict liability by denying certain substantive rights in delictual actions to those persons sustaining injuries from transfusions of whole blood or blood plasma. Two Louisiana cases, one state and the other federal, have held in the affirmative, thereby upholding the constitutionality of the act. Juneau v. Interstate Blood Bank, Inc. of Louisiana, 333 So.2d 354 (3rd La.App., 1976), writs refused, 337 So.2d 220 (La.1976); Heirs of Fruge v. Blood Services, 365 F.Supp. 1344 (W.D.La.1973); affirmed, 506 F.2d 841 (5th Cir. 1975).

In Juneau, the court stated:

“If legislatures are to be allowed to single out groups and activities for regulation, based on sound societal needs, the legislative activity in this field is steeped in constitutionality. The need for blood and its components is essential in today’s medical science. The need for protection of these supplies is dictated by these societal needs. The legislature, in acting to meet these needs, was fulfilling its duties to the people of this state.
Plaintiffs further contend that their access to the courts is eliminated. Article 1764 B of the Louisiana Civil Code does not totally immunize suppliers of blood from liability. Where the suppliers have been negligent in failing to meet the standard of care imposed by their duty owed to blood recipients, recovery will be allowed. This case does not fall within the ambits of that rule, for no negligence has been demonstrated.
Over 40 state legislatures have seen fit to afford similar protection by statutes such as Article 1764 B of the Louisiana Civil Code. The statutes, to date, have withstood constitutional attacks. cf. McDaniel v. Baptist Memorial Hospital, 469 F.2d 230, 235 (6th Cir. 1972).” 333 So.2d 354, 357

In Heirs of Fruge, the court in addressing itself to the constitutionality of the amendment reasoned:

“The plaintiffs-appellants challenge not only the construction of Article 1764, but also its state constitutionality. They contend that Article 1764 violates the guarantee of due process, provided for by Article 1, § 2 of the Louisiana Constitution, and the prohibition against the legislative creation of an exclusive right or immunity to an individual in Article 4, § 4. The argument, in essence, is twofold: that 1) the legislature may not, acting consistently with limitations imposed by the state constitution, eliminate causes of action already provided by the positive law announced in the Code, 2) for the benefit of a specific individual or organization.
We are unable to accept this reasoning. For over 50 years, the Louisiana courts have recognized the validity of legislative regulation of causes of action, including replacement and even extinction, that one person may have against another for personal injuries. Colorado v. Johnson Iron Works, 146 La. 68, 83 So. 381 (1919). The entire scheme of workmen’s compensation is grounded on the acknowledgment of this power. Id. Other state courts have repeated this acknowledgment over the years in other areas. See, e. g., Paul v. Nolen, 166 So. 509, 511 (La.App.1936).
This article is no less valid because it is explicitly directed at the suppliers of blood and blood components. Article 4, § 4 of the Louisiana Constitution prohibits the granting of special immunity for ‘any corporation, association or individual.’ The article has been narrowly construed by the Louisiana courts, which have held that ‘A statute which is applicable to all persons under like circumstances and does not subject any individual to an arbitrary exercise of power does not violate the due process or equal protection clauses of the state and federal constitutions.’ Standard Homestead Ass’n v. Horvath, 205 La. 520, 17 So.2d 811, 813 (1944). Thus, as long as a privilege or immunity ‘operates equally and fairly to those who engage in like transactions’ and ‘affects alike all persons pursuing the same business under the same conditions,’ the Louisiana Constitution is satisfied. Id. at 814. See, also, Succession of Vincent, 229 So.2d 449 (La.App.1969). In the case before us, ‘[t]he law in question involves all within the class of selling or distributing blood or plasma equally and . . . [tjhere appears to be no discrimination in the law favoring the [defendant] per se . . .,’ McDaniel v. Baptist Memorial Hospital, supra, 469 F.2d at 235. Because the article applies with such generality to all those who provide the vital medical service of supplying blood and blood components— such as blood banks, hospitals and the like — it easily satisfies the well-established tests of constitutionality as a valid exercise of legislative authority.
In conclusion, the only cause of action available to the plaintiffs in this case is negligence, and because the trial court did not pass on the issue and because it is clear that the defendants are no longer immune from liability in negligence, the case is remanded to the trial court for further proceedings on that issue.” 506 F.2d 841, 848, 849

As of this date some forty-seven states have adopted statutes similar to the article under attack here. In each instance where the statute has been questioned, its constitutionality has been upheld. Counsel in the instant case agree that there is no satisfactory method by which a given unit of blood can be tested against viral hepatitis contamination. We must conclude that the legislature has considered and weighed the necessity and need for available blood and blood plasma against the risk of transfusion-associated hepatitis and has concluded that the need warrants the risk. Accordingly, it has seen fit to exclude this type of injury from the application of warranty (implied or express) and strict liability theories. Causes of action sounding in negligence are uneffective. In McDaniel v. Baptist Memorial Hospital, above, the court noted:

“The fact that the important service of blood transfusions has been singled out for legislative treatment, and immunity to some degree is bestowed, does not, in and of itself, make it unlawful or unconstitutional . . . The question is whether the classification is so arbitrary and capricious as to constitute denial of equal protection.”

We do not find that C.C. Art. 1764 B is so arbitrary or capricious as to be constitutionally infirm and must therefore affirm.

All costs of these proceedings relating to the instant motion are assessed against appellants. All other costs are to await a final determination on the merits.

AFFIRMED.


text:
    Charles LOYD, Plaintiff-Appellant, v. ATLAS CONSTRUCTION COMPANY and Highlands Insurance Company, Defendants-Appellees.
    No. 11036.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.
    Rehearing Denied Feb. 14, 1977.
    Writ Refused April 6, 1977.

      William P. Brumfield, Baton Rouge, for plaintiff-appellant.
    C. T. Williams, Jr., New Orleans, for defendants-appellees.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   SARTAIN, Judge.

Plaintiff appeals from a judgment of the district court denying him workmen’s compensation benefits for total permanent disability. The hazardous nature of his employment, the accident, and plaintiff’s initial injuries are not contested. What is at issue here involves a consideration of the injuries and its effect upon a pre-existing degenerative disc condition. Plaintiff claims that he is unable to perform his regular work as a result of the injuries. Defendants contend that as of the date workmen’s compensation benefits were terminated plaintiff’s condition had reverted to its pre-accident status. The trial judge agreed with defendants’ position and rejected plaintiff’s demands. We affirm.

Plaintiff is an operator of heavy construction equipment. On June 28, 1974, just before he was finishing his duties for the day, he heard a “popping sound” in his back while driving a grader over numerous ruts in the road surface. He claims that his injury was caused by the swaying and rocking motion of the grader over the uneven surface of the roadbed. He was initially seen by Dr. Jacob Harold Kety, a family practitioner, and subsequently, by Dr. Daryl S. Sinclair, an orthopedic surgeon. Both of these physicians reside in Covington, Louisiana. The major portion of plaintiff’s treatment was administered by Dr. Sinclair.

Dr. Kety saw plaintiff on June 29, 1974. Plaintiff was complaining of low back pain radiating down the leg. He was hospitalized, placed in traction, and administered muscle relaxants. Dr. Kety diagnosed his injury as an acute lumbo-sacral strain. He was discharged from the hospital on July 4, 1974. When his complaints persisted Dr. Kety referred him to Dr. Sinclair.

Plaintiff remained under Dr. Sinclair’s treatment until July 4, 1975. On this date Dr. Sinclair advised plaintiff’s employer’s insurer that plaintiff’s condition had returned to its pre-accident status and weekly payments were terminated.

The pre-existing degenerative disc condition was medically described by Dr. Kety as lumbar scoliosis, mild senile osteoporosis. The latter term is a disc disease occasioned by the thinning of the bone structure of the vertebrae. This condition is, of course, in no way related to the accident and is not unusual in persons plaintiff’s age (62).

Both of these doctors were very definite in their respective opinions that plaintiff’s continued complaints of low back pain are occasioned by this pre-existing degenerative condition and are in no way related to the initial injury. The doctors are further in agreement that plaintiff could not have worked prior to the accident without incurring discomfort and pain. They recommended that he not return to the strenuous work that he claimed to be performing pri- or to the accident. As a matter of fact, they were of the opinion that plaintiff should not have been doing that type of work even before the accident.

The aforementioned testimony of the doctors relative to pre-accident back complaints is in direct conflict with the testimony of the plaintiff and plaintiff’s wife. Plaintiff stated that he had never previously experienced low back pain and that his pre-existing condition never interfered with his work. His wife testified that plaintiff never complained of back discomfort. To the contrary, she said that he was a very active man both with respect to his work and his activities around the home.

In cases involving aggravation to a pre-existing condition, our law is well settled. A worker who is normally susceptible to disability from an accident is entitled to workmen compensation benefits even though the same accident or injury would have caused little or no harm to a healthy worker. Roberson v. Liberty Mutual Insurance Company, 316 So.2d 22 (3rd La.App., 1975); Kennedy v. Calcasieu Paper Co., 262 So.2d 800 (3rd La.App., 1972); Marcotte v. Atlas Construction Co., et al., 340 So.2d 341 (1st La.App., 1976). An employer takes an employee as he finds him. Bordelon v. Tulane Industrial Laundry, Inc., 275 So.2d 878 (4th La.App., 1973).

R.S. 23:1221(2) defines permanent and total disability as “disability to do work of any reasonable character.” An injured employee is deemed totally and permanently disabled whenever he is unable to perform work of the same or similar description to that which he performed before the accident. Futrell v. Hartford Accident & Indemnity Co., 276 So.2d 271 (La.1973). He is not required to return to his regular work if he is unable to perform that work without substantial pain. Clement v. Fidelity & Casualty Co. of New York, 220 So.2d 575 (3rd La.App., 1969). The plaintiff, however, bears the burden of establishing a causal relation between the accident and the disability complained of. Francis v. Gerlach Meat Company, Inc., 319 So.2d 534 (2nd La.App., 1975), writs denied 322 So.2d 776 (La.).

With these principles in mind, we turn to the proof of causation. Professor Malone notes:

“Particularly all difficulties with reference to proof of causation of back injuries arise only in cases where the employer contends that the disability was a result of some pre-existing disease rather than accidentally hurt on the job. So long as it is conceded that the worker was healthy at the time of the accident, proof of causation is relatively simple.’’ Malone, Louisiana Workmen’s Compensation Law and Practice, Sec. 254. (Emphasis ours).

Prior to Tantillo v. Liberty Mutual Insurance Co. et al., 315 So.2d 743 (La.1975), plaintiff’s and his wife’s lay testimony as to his alleged current physical disability would not have been admissible as there is no conflict in the medical testimony on this issue. In overruling a long line of cases, beginning with Maricelli v. Standard Accident Insurance Company et al., 57 So.2d 926 (2nd La.App.1972), on this rule of evidence, the court in Tantillo stated: 315 So.2d 743, 748, 749:

“It is generally true that medical testimony which is not in conflict cannot be overcome by lay testimony. Nevertheless, in every case it is the totality of the evidence, medical and lay, which must be examined by the court in making its determination of whether to grant an award for disability. Great weight, almost to the point of exclusion of other evidence, is given to uncontradicted medical evidence which is directed toward a complex scientific question. However, in all cases, it is the judge’s function to determine the weight which is to be accorded the medical testimony as well as the lay testimony. Lay testimony has great probative value in establishing certain facts, such as the existence and location of pain and the actual ability or inability of a claimant to perform certain physical functions or to pursue his regular employment. See Larson, supra, at § 79.53. We conclude that lay evidence must be weighed with consideration for the medical fact to be established, of the conclusiveness and validity of the medical evidence and the materiality, relevance and reliability of the particular lay evidence, according to its focus, foundation and its source.”

We are also cognizant of the rule relative to the activation of a dormant pre-existing condition set forth in Peppers v. Toye Brothers Yellow Cab Company, 198 So. 177, 182 (Orls.App., 1940):

“It will be seen that the holdings in the foregoing decisions are based upon possibilities and that the courts have adopted the view that, where a person who enjoys good health suffers an accident and within a short time thereafter a dormant preexisting illness or old injury disconnected with the accident flares up or becomes active, it will be presumed that the flare up was not a coincidence and that it was set in motion as a direct result of the accident. And it is sufficient for the plaintiff, in order to cast the burden of proof upon the defendant, to show by medical testimony that there is a reasonable possibility that the result claimed for did happen.”

Thus, it is essential to plaintiff’s cause that he show to a reasonable certainty that the degenerative disc condition of his back was asymptomatic at the time of the accident. Stated another way, that he was free from pain, was able to and was performing his work without substantial pain before the accident giving rise to this litigation. The resolution of this issue, because of the conflict between his and the doctors’ testimony, addresses itself essentially to a question of credibility.

Defendants contend (and the trial judge apparently agreed) that plaintiff’s testimony in this regard was seriously impeached. Plaintiff was administered the “toe test” by Dr. Kety. This type of examination is given to ascertain the objectivity of back complaints and to evaluate the reliability of the complaint. The patient is placed on his back on an examination table and the big toe of one foot or the other is depressed and/or flexed. The patient is asked to indicate at what point in the movement of the toe pain in the back is felt. Since there is absolutely no medical relationship between the toe and the back, a patient who, as did plaintiff, signifies pain in the back on the movement of the toe is obviously exaggerating.

The record satisfies us that the trier of fact applied the rule announced in Tantillo, above, and found plaintiff wanting in satisfying his burden of proof. We do not find this conclusion either unreasonable or manifestly erroneous and therefore affirm.

All costs of these proceedings are assessed against appellant.

AFFIRMED.