author: LEMMON, Judge.

text:
    Noel J. RADA v. ADMINISTRATOR, DIVISION OF EMPLOYMENT SECURITY, STATE of Louisiana, DEPARTMENT OF LABOR.
    No. 6415.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 23, 1975.
    Rehearing Denied Oct. 9, 1975.
    Writ Refused Nov. 21, 1975.

      Wilmer Glauner Hinrichs, New Orleans, for plaintiff-appellee.
    Marion Weimer, James A. Piper and James A. McGraw, Marion Weimer, Baton Rouge, for defendant-appellant.
    Before LEMMON, GULOTTA and SCHOTT, JJ.
   LEMMON, Judge.

This is an appeal from a judgment awarding plaintiff unemployment compensation benefits. The sole issue is whether plaintiff’s employment was excluded from the coverage provided by R.S. 23:1471 et seq. the Louisiana Employment Security Law.

In 1966 plaintiff was appointed by the governor to the Board of Jury Commissioners, Parish of Orleans. Plaintiff’s W-2 forms showed the Parish of Orleans as his employer, although approximately 65% of the Board’s funds were derived from the State. Plaintiff was replaced in August, 1972 and then filed this claim for unemployment compensation.

Plaintiff’s claim was denied on the basis that his “(e)mployer is a political subdivision and therefore not subject to the Law.” The denial was affirmed by the Appeals Referee and then by the Board of Review. Upon judicial review, the Civil District Court awarded benefits, and the Administrator of the Division of Employment Security appealed.

To be eligible for benefits under the Employment Security Law an unemployed individual must have been paid certain wages during a base period for “insured work”. R.S. 23:1600(5). “Insured work” means “employment” (as defined by the Law) with an “employing unit” which qualifies as an “employer” and is thus subject to the Law.

The most extensive exclusion features are found in the definition of “employment”, R.S. 23:1472(12). See XIX La.L. Rev. 448, 455 (1959).

Prior to Act 136 of 1971, subparagraph (F) of Subsection (12) of R.S. 23:1472 listed specific exclusions, the one pertinent to this case being:

“(F) The term ‘employment’ shall not include:
“(VII) Service performed in the employ of this state, or of any political subdivision thereof, or of any instrumentality of this state or its political subdivisions; * * * ” (Emphasis supplied)

The Administrator argues that service performed for a political subdivision (such as a parish) was clearly excluded from the term “employment” prior to Act 136 of 1971, but that the 1971 legislature amended the Employment Security Law in numerous respects after Congressional enactment, of Public Law 91-373 in order to allow Louisiana employers to remain qualified for certain credits against Federal taxes. The Administrator further argues that because the Congressional act required coverage of employees of state hospitals and institutions of higher learning, the legislature decided by committee amendment of Act 136 to afford coverage to all state employees, except certain categories such as political appointees.

Pertinent to the Administrator’s argument is Act 136’s amendment and reenactment of Subsection (12) to provide in pertinent part as follows :

“ * * * F. I. Except as otherwise provided in Subparagraph (H) (VII) of this subsection the term ‘employment’ shall include service performed after December 31, 1970, by an individual in the employ of this state or any of its instru-mentalities (or in the employ of this state and one or more other states or their instrumentalities).
* * * * * *
“H. The term ‘employment’ shall not include:
* * * * * *
“VII. Service performed after December 31, 1970, by an individual in the employ of this state or any of its instrumentalities (or in the employ of this state and one or more other states or their instrumentalities) if:
“(a) such service is performed by an elected or appointed public official; * * * ” (Emphasis supplied)

In arguing for exclusion of plaintiff from coverage, the Administrator first takes the position that plaintiff was an appointed public official in the employ of a subdivision of the state and that the legislature unintentionally omitted the words “or of any political subdivision thereof” from the exclusion of political appointees in R.S. 23 :1472 (12) H VII.

As a judicial body, we can look to the overall legislative intention in construing an ambiguous statute. The statute under consideration, however, is not ambiguous in the respect urged. Subpara-graph H VII clearly excludes only appointed public officials in the employ of the state or any of its instrumentalities; nothing therein indicates or in any manner suggests that the exclusion applies to appointed public officials in the employ of a political subdivision of the state.

Furthermore, if, as the Administrator suggests, the legislature erred in expressing its intention, it is not the function of the judicial branch to correct such an error, unless the error creates an ambiguity. Such an error (if one occurred) should be corrected by the legislature.

The Administrator secondly points to R. S. 23:1575, a new section enacted in 1971 which gives hospitals and institutions of higher learning operated by political subdivisions the right to elect coverage, and argues that Section 1575 would have been unnecessary if the legislature had intended for all service in the employ of a political subdivision to fall within Section 1472’s definition of “employment”. The Administrator buttresses this argument by pointing out that Section 1472(12) F (as amended in 1971) specifically listed service in the employ of the state or any of its instru-mentalities as included in coverage, but did not mention service in the employ of a political subdivision.

The scheme of the Louisiana Employment Security Law is to provide benefits to otherwise qualified unemployed individuals who have worked in the employ of an “employing unit” which qualified as an “employer”, unless that individual’s “employment” was specifically excluded. A political subdivision of the state is an “employing unit” by the express terms of the Law, and nowhere in the definition of “employment” does the Law (as amended) exclude service performed in the employ of a political subdivision.

Reference to Section 1575 perhaps suggests that the legislature intended to exclude from “employment” service performed in the employ of a political subdivision (or perhaps that the legislature prepared Section 1575 to comply with the Congressional act before ultimately deciding to extend the proposed legislation to provide coverage to all state employees, except the few specifically excluded). We conclude, nevertheless, that the legislature, whether or not it intended to do so, did change the Law as to the previous exclusion from “employment” of service performed in the employ of a political subdivision.

Since neither plaintiff’s service performed as an appointed public official nor his service in the employ of a political subdivision were excluded from the definition of “employment” under the amended Law, we hold that benefits were properly awarded.

The judgment is affirmed.

Affirmed.

      . R.S. 23:1472(10) defines “Employing Unit” as “any individual or type of organization, including the State of Louisiana or subdivisions, or instrumentality thereof . . ..”
      R.S. 23:1472(11) defines “employer” as any “employing unit” which fulfills certain requirements, principally having paid a specifi-fied amount of wages or having employed a specified number of employees during a specified period.

      . Corrections were made by Acts 166 and 337 of 1972.

      . The Administrator, relying on an opinion issued by the Attorney General on April 18, 1972, construes the term “instrumentantes of the state” to mean state agencies, as opposed to local political subdivisions of the state.

      . Although plaintiff’s claim was denied in 1972, the legislature has not yet acted to correct the asserted error.

      .In this regard we note that the Congressional act not only requires states to cover employees of hospitals and institutions of higher education operated by the 8tate, but also requires states to extend to political subdivisions the right to cover employees of the hospitals and institutions of higher education operated by the subdivision (as was done in Section 1575).


source: Caselaw Access Project

author: MORIAL, Judge.

license: Public Domain

text:
    Edward J. CHAROULEAU v. CHARITY HOSPITAL OF LOUISIANA AT NEW ORLEANS et al.
    No. 6895.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 15, 1975.
    Rehearing Denied Oct. 9, 1975.
    Writ Refused Nov. 25, 1975.

      Levy & Smith, Adolph J. Levy, New Orleans, for plaintiff-appellant.
    H. M. Westholz, Jr., New Orleans, for defendants-appellees.
    Before GULOTTA, STOULIG, and MORIAL, JJ.
   MORIAL, Judge.

Plaintiff appeals the dismissal of his action for damages arising out of the suicidal death of his wife in the Charity Hospital of Louisiana at New Orleans (Hospital).

On April 5, 1966 at approximately 9:15 P.M., Mrs. Florence Charouleau arrived at the Hospital emergency room seeking treatment. She was seen by a staff physician (Dr. Youngblood) who requested that she be seen by a psychiatric resident, Dr. William G. Walters, because of the nature of the problem she described. Dr. Walters subsequently interviewed and examined Mrs. Charouleau on the first floor in the emergency room. During the course of this examination Mrs. Charouleau pulled a pistol from her purse and pointed it at Dr. Walters. He grabbed the gun from her and found it to be unloaded. He made no effort to ascertain if Mrs. Charouleau had any bullets for the gun. Thereafter “to establish a rapport” between them he returned the unloaded gun and continued with the interview. He learned from Mrs. Charouleau that she wanted to be admitted in order to break a drug habit (Doridin, a soporific sleeping tablet) and, had on occasion been seen by Dr. DiGiacomo, a doctor in the clinical services of the Hospital. She further stated that she had taken an overdose of Doridin on several previous occasions and this was one of the reasons why she sought help. Dr. Walters did not review the chart of Mrs. Charouleau which could have been obtained from the Hospital’s record room. It was not the usual procedure, in the absence of compelling circumstances, to review such charts upon routinely seeing a patient in the emergency room. Dr. Walters assured Mrs. Charou-leau that she would not be committed to an institution against her wishes. He then proceeded to write an explanatory note to the treating physician in full view of Mrs. Charouleau. The note read: “This lady I feel, would benefit from prolonged hospitalization such as commitment to Mande-ville.” He then escorted Mrs. Charouleau to the admission desk and instructed her to sit nearby and wait a few moments for the clerk. He placed the emergency room record, including the written remarks, on the admissions desk in front of Mrs. Charou-leau for the clerk’s attention. He left the patient and thereafter called her husband and informed him that she had the gun at Charity Hospital and that their car was parked on Tulane Avenue.

The admission procedures of Charity Hospital, at that time, were the same for psychiatric and general patients. All patients, except those considered dangerous, were to go to the admission desk and fill out admission forms with the aid of an admission clerk. The clerk was then to call an aide to take the patient to the appropriate ward. Mrs. Charoleau never completed the admission procedures.

Mrs. Charouleau was found the following morning in one of the Hospital’s restrooms, dead, from a self-inflicted bullet wound from the pistol which Dr. Walters returned to her during the course of the examination. It was determined that Mrs. Charouleau had left the admission desk sometime after Dr. Walters had left her there, taking with her the admission note written by Dr. Walters. Until this time Mrs. Charouleau had not been admitted to Charity Hospital and according to hospital procedure was actually free to go. Dr. Walters had instructed no one to watch her or dissuade her from leaving should she attempt to do so.

Plaintiff sued Dr. Walters, his insurer and Charity Hospital. Plaintiff settled his claim against Dr. Walters for $5,000, reserving his right to proceed against the Hospital, Dr. Walters’ employer. The district court rendered judgment in favor of defendant. We affirm.

As the employer of the physician whose negligent treatment causes injury to a patient, a hospital can be held vicariously liable to a plaintiff under the doctrine of respondeat superior. LSA-R.C.C. Articles 2317, 2320; Wells v. Woman’s Hospital Foundation, 286 So.2d 439, 444 (La.App. 1 Cir. 1974). In the present case, however, the fact that the plaintiff released and compromised his claim with Dr. Walters is fatal to a cause of action based upon vicarious liability. This principle is set forth in Williams v. Marionneaux, 124 So.2d 919, 923 (1960), wherein the Supreme Court stated:

“This release, in our view, not only operated to discharge Blanchard [employee] as the party primarily responsible; it effected a complete release of Marionneaux, [employer] who was only secondarily liable. And this, despite the attempted reservation by plaintiff in the release of all of his rights against Mar-ionneaux and his liability insurer.
“There was but one cause of action which the law gave plaintiff in recompense for his injuries. That cause of action sounded exclusively in tort under article 2315 of the Civil Code. Under Article 2320 this same cause of action for Blanchard’s alleged tort was asserta-ble against Marionneaux but it was cognizable only because Blanchard was allegedly acting in his function as an employee of Marionneaux at the time Blanchard committed the negligencet [sic] act causing plaintiff’s injury. Now, when Blanchard compromised with plaintiff, he repaired his wrong and, therefore, was fully acquitted from further liability. This acquittance inured to the benefit of Marionneaux for the release of the tortfeasor must be held to release Marionneaux also from further responsibility, as his liability for the tor-tious act was vicarious in nature and derived solely from his legal relation to the wrongdoer.”

Accordingly, the hospital can now be held liable only if it can be shown to be independently negligent. In order to demonstrate such, plaintiff contends the Hospital was negligent because 1) it placed a psychiatric resident instead of a psychiatrist in charge of emergency admission of psychiatric patients; 2) it did not have a procedure for direct admission to a psychiatric care unit; 3) it allowed psychiatric patients to wander about the hospital at will before admission; 4) it did not prevent psychiatric patients from seeing their charts; and 5) it did not have a standard admission policy of reviewing the charts of psychiatric patients who were potentially suicidal. The Hospital contends it breached no legal duty which could amount to the proximate cause of the suicide.

Plaintiff attempted to show that the procedural standards of the Hospital were below those generally prevailing in the community. He based a considerable portion of his argument on the proposition that the Hospital’s procedures did not satisfy the requirements of the State of Louisiana’s publication entitled, “Rules, Regulations and Minimum Standards Governing Hospitals and The Hospital Licensing Law.” LSA R.S. 40:2109A specifies that those rules “shall have the effect of law, governing the operation and maintenance of hospitals.” Plaintiff considers in essence two sections of this publication to be pertinent to the present situation and indicative of the hospital’s negligence:

1. “The hospital shall establish safety policies and procedures for the care of patients who because of their condition are not responsible for their acts.” § 26.
2. “The layout, design of details, equipment and furnishings of a psychiatric unit shall be such that patients may be under close observation and will not be afforded opportunities for hiding, escape or injury to self or others.” § 70.

The trial judge found that Charity Hospital was not bound by these standards. This ruling is correct.

The Hospital was at the time of Mrs. Charouleau’s death under the exclusive management, administration and control of its Board of Administrators pursu- and to LSA-R.S. 46:753 et seq. Therefore, rules and regulations adopted by authority of the State Hospital Licensing Council (LSA-R.S. 40:2109) cannot guide the Hospital’s functions.

Conceding arguendo that the Hospital is governed by the “minimum standards,” we conclude that Section 70 is inapplicable because the Hospital is not a' “psychiatric unit” but a general hospital. With respect to Section 26, the Hospital did establish adequate safety precautions to care for those patients who “because of their condition were not responsible for their acts.” Dr. John Salatich, Director of the Hospital’s Emergency Room, testified that if a doctor desired a patient to remain under constant supervision, he could write this on the emergency room sheet and a nurse would carry out the order and remain with the patient. Apparently, Dr. Walters believed his patient did not require such treatment. He testified that she acted calmly. Surely no one on the emergency room staff could have concluded from outward appearances that the patient was contemplating suicide. It was the responsibility of the treating physician to notify the staff of her condition. He chose not to do so. Obviously his medical judgment was wrong; but the fact remains that adequately established precautionary procedures were available.

Under the circumstances of this case, where there was an absence of an outward manifestation of an emergency situation, the procedures employed by the Hospital were not negligent. Addressing himself to this issue, the learned district judge aptly stated:

“. . . The Court is unable to find any negligence, per se, which was committed by the hospital and which could have been the proximate cause of the decedent’s suicide.
“When a patient voluntarily presents herself (or himself) for admission for treatment, the consulting resident has no way of determining whether or not the appearing patient had been previously treated by the hospital. Hence, until the patient is actually admitted — or, unless so told by the patient, — the previous hospital records of the patient, if any, are not called for (at least, under the admittance practice of the hospital in April of 1966). To proceed otherwise would obviously create a considerably more extended delay that was then, or is now, experienced by patients seeking admission for any form of treatment. And, except in a case where it is evident that a patient may be obviously dangerous to himself (or herself), or to others, the hospital would have no right to detain or restrain that patient prior to actual ‘admittance.’
****** “The evidence, in the Court’s opinion, fails to establish any evidence which would indicate that the hospital’s methods of admittance procedure was other than that which is generally used by public hospitals of a character and size similar to that of Charity Hospital of Louisiana, or that such procedure — even if below any such standards set by the Community — was the proximate cause of decedent’s death.”

We find nothing in the record to cause us to disagree with these conclusions. See 60 ALR3d 880.

Plaintiff proffered the testimony of a non-local expert hospital administrator, Dr. Murray Diamond, in an attempt to establish that Charity’s admission procedures were clearly below community standards. The “locality rule” places upon a hospital the duty to exercise the degree of care, skill and diligence used by hospitals generally in that community. Lauro v. Travelers Insurance Company, 261 So.2d 261 (La.App. 4 Cir. 1972). In April of 1966 (the date of the suicide) Dr. Diamond did not reside in New Orleans nor was he practicing medicine in this area. Dr. Diamond was incompetent to testify as to local community hospital standards at the time of Mrs. Charouleau’s death. The trial judge’s refusal to admit his testimony was correct. Accordingly, we find no abuse of the trial court’s wide discretion to determine if a witness is qualified to give expert testimony. Bonilla v. Arrow Food Distributors, Inc., 202 So.2d 438 (La.App. 4 Cir. 1967).

For the foregoing reasons, the judgment is affirmed.

Affirmed.

      . Subsequently, Acts 1972, No. 253 transferred the powers and duties of the Board of Administrators of Charity Hospital of Louisiana at New Orleans to the Louisiana Health Social and Rehabilitation Services Administration. LSA-R.S. 46:1751, 46:1767. By virtue of this transfer the Charity Hospital of Louisiana at New Orleans is now regulated by rules and regulations promulgated pursuant to LSA-R.S. 40:2108, et seq.


author: BEER, Judge.

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. William J. GUSTE, Jr., et al.
    No. 6958.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 9, 1975.

      D. Ross Banister, William W. Irwin, Jr., Jerry F. Davis, Johnie E. Branch, Jr., Baton Rouge, for plaintiff-appellant.
    Guste, Barnett & Colomb, Dennis C. Strayhan, New Orleans, for defendants-ap-pellees.
    Before LEMMON, GULOTTA, and BEER, JJ.
   BEER, Judge.

This appeal arises from an expropriation suit filed under the authority of the “quick taking statute” (LSA-R.S. 48:441 et seq.) to acquire a 10.074 acre portion of a 300-acre tract of land for the construction of the overall I — 10 improvements in the Parish of St. John the Baptist near LaPlace, Louisiana.

The land involved is low in elevation and subject to some tidal overflow from nearby Lake Maurepas. In its present condition its value is primarily speculative and at the time of the taking the land was not susceptible to any immediate use except for the cutting of some small amount of timber. However, like most land in the general area, it could be vastly improved by the construction of levees and the bringing in of large amounts of fill both of which, in this instance, would be very costly but feasible.

The sole issue at the trial and in this appeal is the value of the property taken by plaintiff. Both parties introduced evidence of alleged “comparable” sales in the adjacent area and utilized the opinions of expert independent fee appraisers in an attempt to support a conclusion as to the value per acre of the property.

After trial the district court rendered judgment in which the property was valued at $375 per acre. In his reasons for judgment, the trial judge relies primarily upon the comparison of defendant’s land to a tract of land located in nearby St. Charles Parish known as Willowdale Estates and essentially disregards the other comparables introduced by the parties. We agree that the other comparable sales offer little assistance in making an evaluation. Those sales relied upon by plaintiff generally concern much larger tracts than the one in question and the defendant’s comparables, except for the Willowdale sale, deal with property that is considerably higher in elevation or with property sold after the taking.

Mr. Max Derbes and Mr. Chester Drig-gers, plaintiff’s witnesses, compared the property with tracts of land which were 18,565 acres; 15,634.64 acres; and 1,714.07 acres respectively. Mr. Derbes acknowledged that it was difficult to fairly compare sales when there is a great disparity in the size of the tracts involved. Mr. Driggers used the same comparables but did little to relate the characteristics of the compared tracts in order to substantiate his appraisal of the property. The defendant’s first witness, Mr. Irvington Eppling, compared property in St. John the Baptist Parish sold in September 1965 but acknowledged that this property had a higher elevation than the Guste property. The other sale that he used was after the expropriation. His final comparable was not a sale but only an offer for a sale and was correctly inadmissible. State, through Dept. of Highways v. McDuffie, 240 La. 378, 123 So.2d 93 (1960) and Tennessee Gas Transmission Company v. Violet Trapping Company, 200 So.2d 428 (La.App. 4th Cir. 1967), writs refused 251 La. 65, 203 So.2d 86.

Mr. Peter Talluto, defendant’s last expert, mentioned various sales of different tracts, but did not explain his reasons for valuation of the Guste property. He also acknowledged that the five of the six sales that he did utilize involved property that was higher in elevation than the Guste property.

Since substantial adjustments were required for every comparable used by every appraiser, we find no error in the method by which the trial court sought to resolve the valuation issue. However, a review of the record indicates that some mathematical adjustment is necessary in the per acre valuation made by the trial court.

The trial judge inadvertently made use of an incorrect figure in the valuation computation regarding the per acre price at Willowdale. Evidence adduced at trial (and referred to in both briefs) indicates the Willowdale price per acre was $316.87 and not $343 as noted by the trial court. Since the court’s decision was substantially based upon the per acre valuation of Wil-lowdale Estates, the $375 per acre figure is an unintentional overvaluation at least to the extent of the difference between $343 and $316.87. Accordingly, we feel required to initially reduce the trial court’s valuation of the Guste property from $375 to $348.87.

We agree with the trial court’s overall comparison of the two tracts of land. Willowdale is 1.24 miles from U. S. Highway 90 and approximately 16 miles from the City of New Orleans and the expropriated land is 1.4 miles from U. S. Highway 61 and approximately 17 miles from the City of New Orleans (or, at least, from New Orleans International Airport). We agree that the proximity of the Guste property to a major traffic artery and its relative closeness to the City of New Orleans are essential factors in computing the valuation of the 10.074 acres expropriated.

Taking these essential similarities into account, we note however, that the strip of land expropriated is located at the northernmost point of the overall tract, a distance of about one mile from the southern property line which adjoins a developing subdivision that fronts on U. S. Highway 61. Since the rear portion of the subject property is generally lower in elevation and further from present development and utilities than the front portion, we apply a further reduction using the methodology generally outlined by the Supreme Court of Louisiana in State of Louisiana through Dept, of Highways v. Crow, 286 So.2d 353 (1973); State of Louisiana throtigh Dept. of Highways v. Hoyt, 284 So.2d 763 (1972)

Using the basic figure of $348.87 per acre as the value of the entire subject property, and applying the consideration that the expropriated rear strip is less valuable than the front portion of the property, we deem the value of $250 per acre to be just and adequate compensation for the property taken.

Accordingly, the judgment of the trial court is amended only to the extent that the per acre valuation is changed from $375 to $250 and thus amended is affirmed. Each party is to bear its own costs.

Amended and affirmed.

      . While we believe the best evidence of the market value of expropriated property is recent sales of similar tracts in the same vicinity of the expropriated property, we do not feel that we should necessarily confine our review to sales that occurred before the taking. It seems logical to us that sales after the taking can be useful in confirming the value of the property and may be given weight accordingly. Subsequent sales unrelated to the expropriation are often indicative of the recent market trends and go towards establishing the market value at the time of the taking. State, Department of Highways v. DeRouen, 228 So.2d 659 (La.App. 3rd Cir. 1969), reversed on other grounds, 256 La. 947, 240 So.2d 717 (1970). Furthermore, since enhanced value after a taking has been considered when property not forseeably included within a project is subsequently taken after the original expropriation, we believe that some reason exists to consider the value of expropriated property as reflected in comparable sales affected after the taking although the weight accorded such evidence will depend on the particular facts involved. State through Dept, of Highways v. St. Tammany Homestead Association, 304 So.2d 765 (La.App. 1st Cir. 1974), writs refused January 31, 1975.

      . - Defendant’s expert acknowledged that rear lands were less valuable and used a forty percent deduction factor to adjust his comparable for this consideration.


author: SAMUEL, Judge. REDMANN, Judge LEMMON, Judge GAUTHIER, Judge FEDOROFF, Judge

text:
    STATE of Louisiana, In the Interest of Houston HOLIFIELD, Jr., a child under seventeen years of age.
    No. 5746.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 25, 1975.

      Norman J. Pitre, Luling, for State-appel-lee.
    Jerome Friedman, Metairie, for juvenile-appellant.
    Before SAMUEL, REDMANN, LEM-MON, GULOTTA, STOULIG, BOU-TALL, SCHOTT, MORIAL, GAUTHIER and FEDOROFF, JJ.
   SAMUEL, Judge.

This is an appeal from an adjudication of delinquency and an order of commitment to the Louisiana Department of Corrections.

The case was tried pursuant to R.S. 13:1570 subd. A(5), which provides for exclusive original juvenile court jurisdiction over a juvenile who violates any law or ordinance. The defendant juvenile was charged with violation of R.S. 14:62 which proscribes and defines the crime of simple burglary. Since there is no evidence in'the record to indicate Holifield entered the burglarized premises, the adjudication presumably was made pursuant to R.S. 14:24, which defines one who aids and abets the commission of a crime as a principal thereto.

The evidence shows Holifield was arrested at 3 a. m. while seated on the right front seat of an automobile which belonged to another principal and which was parked in front of the burglarized premises, a grocery establishment closed for the night. A search of the vehicle revealed it contained merchandise bearing the name tag of that grocery. The primary inculpatory evidence offered by the state was the confession of Holifield.. On the day of his arrest he signed a waiver of his rights at 7:20 a. m. and an inculpatory statement at approximately 7:25 a. m. He was not permitted to call his parent or to talk to an attorney prior to signing either the waiver or the inculpatory statement. The trial judge found Holifield’s waiver of his rights was knowingly made and that the inculpatory statement or confession was a voluntary one.

The defense called Mrs. Ethel Holifield, the juvenile’s mother. She testified he was fourteen years of age and in the ninth grade at the Helen Keller School for retarded children, a school designed to afford special education for slow learners. Her testimony, which is essentially unre-futed, is that her son functions on a third grade level and is unable to read. She also testified her son has been under the care of a psychologist at the East Jefferson Mental Health Clinic for approximately two years because of behavioral problems, which she characterized as his acting essentially like an eight year old child. When shown the confession, she stated without equivocation that many of the words contained therein were beyond the scope of her son’s vocabulary. Prior to Holifield’s attendance at the Helen Keller School, he attended Deckbar Special School and Kenner Junior High School, which has special education classes.

The defendant juvenile also was called to the witness stand. His testimony leaves considerable doubt regarding his capacity to understand the meaning of words used in the normal criminal process. For example, when asked to define the word “rights” the following colloquy resulted between him and his attorney:

“Q What are rights?
A Something you’re supposed to do with.
Q Rights are when you’re supposed to do right?
A Yes sir.”

When asked the meaning of the word "afford” he responded it meant “a Ford car.” He could not read the word “lawyer.” Moreover, he was asked to explain the meaning of the following right which the state contends he voluntarily waived:

“You have the right to talk to a lawyer for advice before we ask you any questions, to have him with you during the questioning.”

He responded that this sentence meant “If you want the lawyer to defend you you got to tell him what it’s about.” In addition, he denied knowing the meaning of the statement “If you cannot afford a lawyer one will be appointed for you before any questioning if you wish.”

While these and other portions of the juvenile’s testimony may have been suspect as self serving, they nevertheless raise substantial questions regarding his competence to waive his rights and sign a confession in view of his mother’s testimony and in view of the circumstances under which the waiver and confession were obtained.

A motion for new trial was filed by the defendant. It is based on evidence allegedly not available at the time of trial which was held on November 9. A medical report, also dated November 9, was attached to the motion for new trial. Counsel for defendant alleges the report was not received by him until November 14. In any event, the report purports to be made by Dr. Walter L. Prickett, the Psychiatric Director of the East Jefferson Mental Health Center. It states the defendant juvenile was mentally retarded with an I.Q. of 67. The trial court nevertheless denied the motion for new trial and' entered the commitment judgment.

As the report was dated the same day as the hearing in the trial court, there is little doubt counsel for defendant did not receive the report until after the hearing had been concluded. The content of the report, if substantiated at trial, shows the juvenile as a mental retardate requiring regular, daily supervision to survive in a manner acceptable to society. The indicated prognosis is quite poor since there is no known method of treatment which could result in raising a mentally retarded person to the average level of intellectual function. If the statements contained in this report are true, the juvenile obviously did not have the capacity either to waive his rights or to sign a voluntary confession. Under all of these circumstances we are of the opinion the adjudication and order of commitment must be set aside.

Having reached this conclusion, it is unnecessary to engage in a discussion of State v. Melanson, La.App., 259 So.2d 609, which held admissible a confession by a juvenile.

For the reasons assigned, the adjudication of delinquency and order of commitment appealed from are annulled and set aside and the matter is remanded to the trial court for further proceedings in accordance with law and with the views expressed in this opinion.

Annulled and set aside; remanded.

GAUTHIER, J., concurs.

REDMANN, LEMMON and FEDO-ROFF, JJ., concur with written reasons.

REDMANN, Judge

(concurring).

It appears to me that the majority reasoning takes for granted that this juvenile is mentally incapable of waiver and confession. If we make that factual determination, then I agree we can postpone our consideration of overruling Melanson and still accomplish justice in this particular case. But I cannot say that we expressly make that factual determination. I would therefore clarify our decree to instruct expressly that the confession not be admitted into evidence upon new trial, either on the factual grounds (as indicated by the majority) of mental incapacity or on the legal grounds (as set forth by Judge Fedoroff) of legal incapacity.

LEMMON, Judge

(concurring).

After the original hearing before a three-judge panel, I subscribed to the view expressed in Judge Federoff’s concurring opinion and proposed to overrule State v. Melanson, supra. I am now convinced that this position is wrong.

I do agree that in terms of logical priority, a minor child’s property rights are less important than his individual civil rights. This comparison, however, cannot be applied in the abstract.

Perhaps the minor who makes a credit purchase of an automobile, for example, and later defaults on the payments should be subject to suit and the fact of his minority admissible merely as one of the considerations in determining his capacity to contract. If this were the law, sellers and lenders would not deal with persons in a certain age bracket, fearing that collection suits arising from most such transactions would be contested on the basis of contractual incapacity. Thus, the absoluteness of the minor’s contractual incapacity established by C.C. art. 1785 is designed not only to protect minors, but also for the advantage of merchants and lenders.

Entirely different considerations exist as to the capacity of a juvenile to waive his right against self-incrimination. If one begins with the proposition that voluntary confessions are extremely important in the overall process of protecting society from criminals, then competing interests arise. On one hand, the ultimate goal of the criminal justice system is to protect society by separating criminals (including juveniles) from the other members of society; on the other hand, the privilege against self-incrimination and the zealous protection accorded the waiver of the privilege are designed to assure fairness in criminal proceedings to persons (including juveniles) accused of crime.

Fairness to juveniles, nevertheless, can be assured without absolutely excluding their confessions. In determining the vol-untariness of an inculpatory statement given by a juvenile without the opportunity of consultation with his parent or other person, the court must carefully scrutinize all of the circumstances surrounding the confession. Nevertheless, a juvenile’s confession should not be absolutely excluded simply because the juvenile was.one day short of the statutory age. Such an absolute rule, automatically releasing the juvenile (who may be a violent criminal) back into society in the absence of other sufficient evidence, is not fair to his next victim. The “totality of the circumstances”, including the fact of age, should be considered in determining the voluntariness and validity of every confession.

In the present case, since I agree that the application for rehearing warranted reopening the case, I concur in a remand for that purpose.

GAUTHIER, Judge

(concurring).

I respectfully concur.

FEDOROFF, Judge

(concurring).

I would have the Court take this opportunity to overrule State v. Melanson, 259 So.2d 609 (La.App. 4th Cir., 1972), which held admissible a juvenile’s confession obtained without the benefit of parental or other counseled advice. West v. United States, 399 F.2d 467 (5th Cir. 1968), cited as authority for this Court’s holding, was a Federal juvenile delinquency hearing arising in Florida. It held, as did M elans on, that juveniles have the legal capacity to waive their right to counsel and to remain silent, reducing to an issue of fact the question of whether the waivers were intelligently made. M elans on did not consider, other than by necessary implication, whether Louisiana ought to allow a minor to waive such rights without the benefit of responsible advice. I believe our courts should not permit such an uncounseled waiver.

As observed in Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), despite the paternalistic language of delinquency statutes, proceedings thereunder are essentially criminal in nature and may result in the deprivation of liberty and confinement in an institution. Recognizing this risk to freedom in delinquency hearings, the Supreme Court in Gault extended to juvenile proceedings the basic protections of the Fourteenth Amendment, theretofore guaranteed only in adult prosecutions. Included in these of course are the rights to counsel and to remain silent.

Adults may intellingently waive these rights. They may also contract, sell, mortgage, donate, and settle claims as they wish, even to their detriment. Minors may not. Civil Code art. 1785 interdicts the minor from binding himself in contract without parental consent. Code of Civil Procedure article 4501 prescribes the formal manner in which a minor’s property may be sold or mortgaged or his claim for damages settled, requiring at least parental, and often judicial, approval.

While these limitations are designed to protect only the minor’s property, they evidence a public policy to protect minors from the consequences of their immaturity. Surely this public policy should be no less concerned with the minor’s very liberty. If we recognize that the right to counsel, and to remain silent are still guaranteed by the Fourteenth Amendment, their current questionable popularity notwithstanding, I cannot fathom how a minor, who lacks the capacity to sell, mortgage, donate or release (who could not even contract with the lawyer whose services he waives) can be said to possess the capacity to waive constitutional privileges and lose his freedom as a consequence.

Should this brief analysis be unconvincing (as obviously it is) the reader is referred to Justice Fortas’ treatment of the problems involved in juvenile confessions in Application of Gault, supra, commencing at 387 U.S. 42, 87 S.Ct. 1428.

Rather than attempt the oftentimes impossible task of determining whether a minor “intelligently” waived his rights or whether that waiver was the product of ignorance or fear, I would set aside the adjudication of delinquency on a holding that a juvenile cannot waive his Fourteenth Amendment rights without the benefit of responsible advice and that the introduction of his confession necessarily constituted reversible error under State v. Thomas, 208 La. 548, 23 So.2d 212 (1945), and State v. Henry, 196 La. 217, 198 So. 910 (1940).

      . See Gallegos v. Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962), and Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948), in which the United States Supreme Court could have, but did not, proscribe use of confessions by minors, holding the particular confessions inadmissible under the “totality of circumstances”.


author: MILLER, Judge.

text:
    Joe GUILLORY, d/b/a Joe Guillory Realty, Plaintiff-Appellee, v. Edley HIXSON, Jr. and Magnolia Life Insurance Company, Defendants-Appellants.
    No. 5101.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 5, 1975.
    Rehearing Denied Oct. 1, 1975.

      Raggio, Farrar, Cappel & Chozen by Richard A. Chozen, Lake Charles, for defendant-appellant.
    J. Fred Patin, Lake Charles, for plaintiff-appellee.
    Before HOOD, CULPEPPER and MILLER, JJ.
   MILLER, Judge.

Defendants Edley Hixson, Jr. and Magnolia Life Insurance Company appeal the judgment awarding plaintiff Joe Guillory, d/b/a Joe Guillory Realty, fees totalling $12,919.09. We reverse.

During the summer of 1972, Lewis Wheeler was employed by the Paul Guillo-ry Agency as a real estate agent. Later that year he left Paul’s Agency and began work for plaintiff Joe Guillory Realty.

While employed by Paul, Wheeler and Hixson agreed that Wheeler would look for suitable farm properties for Hixson to. purchase. Wheeler showed the Shultz farm to Hixson and extensive negotiations were undertaken by Hixson leading to his June 1973 purchase of the property. Sales were perfected almost a year after Wheeler’s efforts terminated and after Wheeler left Paul to join Joe’s agency.

Wheeler told Hixson of his change in employment and continued to search for potential investment properties for Hixson. In April of 1973, Wheeler took Hixson to see the Carpenter farm in Allen Parish. An agreement to purchase was signed in which Carpenter agreed to pay all broker’s commissions. However, this contract was voided by agreement of both parties and a new contract was confected a day or two later with a $12,000 reduction in price. Prior to confecting the sale, Hixson notified the brokers that he had agreed to buy the property on new terms.

Wheeler’s suit against Hixson to recover a fee based on a percentage of the purchase price for the two sales was dismissed on an exception. That judgment became final without an appeal.

We do not reach several issues—the principal one being the credibility issue relating to the parties’ agreement or non-agreement to the percentage fee awarded by the trial court.

As to the commission awarded on the Shultz farm transaction, Hixson correctly points out that Joe Guillory is not the proper party. The contract was con-fected while Wheeler was employed by the Paul Guillory Agency and no effort was made to prove Paul transferred his rights to a commission to the Joe Guillory agency. Insofar as the Shultz sale is concerned, Wheeler was acting as agent for Paul in contracting with Hixson as a real estate sales agent. Although Wheeler did not inform his broker (Paul) of his agreement with Hixson, he and Hixson both testified Wheeler represented himself to Hix-son as an agent employed by Paul. Their transaction then was agency business belonging to Paul. The contract under which Hixon was shown the Shultz farm and which ultimately led to Hixson’s acquisition was a contract with the Paul Guillo-ry Agency.

We agree with the trial court’s statement that the rules of the Louisiana Real Estate textbook are not controlling, and that a commission is not “earned” until a sale is executed. These are only factors to aid in determining the party to whom the commission is due.

Through his agent Wheeler, Paul Guillory introduced parties who ultimately confected a sale. Even though the Wheeler-Paul agency relation terminated well before the sale, and the agent through whom the agreement was concluded had left Paul’s employment, Paul Guillory’s right to a commission was not affected. Once the contract of agency is established, even though it may terminate prior to execution of the sale, the broker is entitled to his commission where he was the procuring cause. Sleet v. Williams, 291 So.2d 495, 497 (La.App. 3 Cir. 1974); Munson v. Alello, 199 So.2d 577 (La.App. 1 Cir. 1967); Searcy v. Jacobs, 151 So.2d 166 (La.App. 4 Cir. 1963).

There is no evidence that Paul assigned or otherwise transferred his rights to plaintiff Joe Guillory. The fact that Wheeler’s employment with Paul terminated and he then went to work for Joe does not transfer Paul’s right to commissions contracted for while Wheeler was employed by Paul. The sales agent (Wheeler) has no independent contractual right. Bristol v. Korol, 295 So.2d 520 (La.App. 1 Cir. 1974). Joe could not obtain rights from Wheeler with respect to the sale of the Shultz farm.

Plaintiff’s claim for a commission based on the sale of the Shultz property cannot be sustained.

With respect to the Carpenter farm, the claim fails for the reason that all parties testified that Wheeler’s employer’s commission on the sale was to be obtained from Carpenter through Carpenter’s agent the Bob House Agency.

Although Carpenter and Hixson can-celled the specific agreement by which the House Agency and Wheeler’s employer were to be paid commissions, Hixson refused to purchase the property from Carpenter until the agents involved in the transaction were notified the parties had reached a new agreement.

On this record, the procuring cause of the sale by Carpenter to Hixson was established to be the efforts by House and Wheeler. The fact that the sale was con-fected a day or two after the parties can-celled their first agreement to buy and sell does not defeat the brokers’ rights to their fees. That fee may be due by Carpenter, but it is not due by defendants.

There is nothing in the record to indicate Hixson undertook to guarantee or otherwise be a surety with respect to the agency agreements with Carpenter, nor is there anything to suggest Hixson was substituted as the party who undertook to pay the agency commissions.

The trial court judgment is reversed and set aside, and plaintiff’s claim is dismissed. Costs of court at trial and on appeal are assessed to plaintiff.

Reversed and rendered.


text:
    Mrs. Rose Deckelman, wife of and Bernard E. DECKELMAN, Sr. v. Lucien C. LOUPE et al.
    No. 6943.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 9, 1975.
    Rehearing Denied Oct. 9, 1975.
    Writ Refused Nov. 18, 1975.
    Bryan & Caraway, John F. Caraway, New Orleans, for plaintiff-appellant.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, John C. Combe, Jr., New Orleans, for defendant-appellee The Travelers Ins. Co.
    David Gertler, New Orleans, for defendants-appellees, Lucien C. Loupe and Mrs. Gladys Clayton.
    Before LEMMON, GULOTTA, and BEER, JJ.
   BEER, Judge.

On January 3, 1973 at approximately 5:15 p. m., a collision occurred at the controlled intersection of Airline Highway and Turnbull Drive resulting in painful injuries to Mrs. Rose Deckelman and financial loss to her husband Bernard E. Deck-elman, Sr. who brought this action to recover damages.

Shortly following the accident (January 11, 1973) Mrs. Deckelman gave an account of her recollection of what had transpired to a claim representative of the defendant-appellee insurance company. Soon thereafter (January 30, 1973) Mrs. Deckel-man wrote a letter to the company’s representative stating that her recollection had become “hazy” as to the events that she had previously described with some particularity. Coincident with this development was the discovery of an alleged witness to the accident who answered a newspaper ad which appellants had placed in local newspapers but whose description of the accident varied from Mrs. Deckelman’s first account.

At the time of trial Mrs. Deckelman, consistent with her January 30 letter, testified that she no longer had any recollection whatsoever regarding the pertinent facts of the accident — even to the extent of no longer recalling the direction from which she approached the involved intersection.

Thus, the plaintiffs-appellants relied completely upon the testimony of the ad-answering witness, Mrs. Cross. But Mrs. Cross’ testimony was in obvious conflict with certain clearly established and uncontested physical facts not the least of which being that defendant driver’s vehicle was a dark blue (black roofed) Ford automobile and not a white van type truck as asserted by Mrs. Cross.

It would serve no useful purpose to detail the additional inconsistencies between the testimony of this witness and all others. Suffice it to say that the record furnishes adequate basis for the trial court’s rejection of Mrs. Cross’ testimony without which plaintiffs’ order of proof failed.

Furthermore, defendant-appellee’s version of what took place, in light of the known physical facts, is more consistent and probatively acceptable — particularly in view of the unexplained inconsistencies in plaintiff-appellants’ factual contentions.

Able counsel for each side had full opportunity to painstakingly develop their respective contentions after which the trial court made a credibility determination that “. . . plaintiffs have failed to establish by a preponderance of evidence that the accident, though regretfully causing much loss to plaintiffs, was the result of any negligence on the part of defendants.”

The trial court was not obliged to reach the point where it became necessary for it to resolve the basic issue of credibility between plaintiffs’ witness and the defendant driver. It made the primary deter'mination that the plaintiffs had not carried their burden of proof.

We find that no manifest error was committed on the part of the trial court in arriving at either its factual finding or its ultimate conclusion. The judgment is affirmed at appellants’ cost.

Affirmed.


author: PRICE, Judge.

text:
    Geraldine Brown PERRY, Plaintiff-Appellee, v. Irvin PERRY, Defendant-Appellant.
    No. 12684.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 3, 1975.
    En Banc.
    Rehearing Denied Oct. 1, 1975.
    Writ Refused Nov. 14, 1975.

      Holloway, Baker, Culpepper & Brun-son, Jonesboro, by D. G. Brunson, for defendant-appellant.
    Whitten & Blake, by Leon H. Whitten, Jonesboro, for plaintiff-appellee.
    Before PRICE, DENNIS and MARVIN, JJ.
   PRICE, Judge.

Defendant, Irvin Perry, has appealed from the judgment awarding his former wife, Geraldine Brown Perry, alimony of $30.00 per week.

Plaintiff obtained a divorce from defendant on grounds of adultery on May 24, 1974. Her request for alimony in that proceeding was abandoned in amended pleadings. The instant rule for alimony was filed on November 26, 1974, alleging plaintiff has become unemployed since the rendition of the divorce decree, leaving her without sufficient means for her maintenance.

The record shows that plaintiff was employed at the time of the divorce by Continental Can Company in Hodge, Louisiana, earning a net weekly income of $120.00 per week. Because of a cutback in production at the plant she was terminated on October 18, 1974, and since that time has had no income other than her unemployment benefits of $70.00 per week. According to plaintiff’s testimony her assets consist of an automobile received in the settlement of the community, a mobile home trailer and household furniture. She resides in the trailer which was purchased on terms of credit after the divorce and is obligated to pay monthly installments of $93.00 on the purchase price. To summarize plaintiff’s monthly financial status in accord with her testimony she has fixed monthly expenses of $250.00, leaving her the sum of $30.00 per month from her $280.00 unemployment benefits to purchase food and clothing for herself.

The thrust of defendant’s position on this appeal is that plaintiff is entitled to receive severance pay and to withdraw retirement benefits from Continental Can Company, which together total approximately $2,500.00, and these amounts when added to her other assets are sufficient for her maintenance. Defendant contends “maintenance” is limited to “food, shelter and clothing” and as several of the items of expenses claimed by plaintiff do not fall within this category, they should not be considered in deciding whether she is entitled to alimony under La.C.C. Art. 160.

Although plaintiff had not received the severance and retirement payment from her former employer at the time of trial of this matter, we do not-find the inclusion of this sum in a consideration of her assets would as a matter of law preclude her from being entitled to alimony under the prevailing jurisprudence.

In the decision of this court in Loe v. Loe, 131 So.2d 106 (La.App. 2nd Cir. 1961), a wife who had received $5,000.00 in settlement of the community and had an income of $216.00 per month was found entitled to permanent alimony. The court pointed out a wife is not required to deplete her entire funds on hand to be entitled to alimony, and that the real question is whether the sum on hand, together with the income is “sufficient for the wife’s maintenance:”

Nor is the jurisprudence in accord with the definition of “maintenance” urged by defendant as that term-is used in Article 160. In Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973), the Supreme Court defined “maintenance” to be much broader than merely food, clothing and shelter and gave this term a more realistic meaning to include the reasonable living and household expenses of the wife claiming alimony under Article 160. We find the expenses listed by plaintiff to have been properly considered by the trial judge in accord with the Bernhardt decision.

Defendant contends that plaintiff did not offer sufficient proof of her payment of these amounts by producing statements of account or receipts for the various items of recurring expenses claimed. This is a question relating to the sufficiency of the evidence. The trial judge found plaintiff’s testimony and sworn itemized schedule of expenditures which was introduced into evidence to be adequate proof under the circumstances of this case, and in the absence of some evidence to the contrary to cause this testimony to be suspect, we find no error in this regard.

The award of $30.00 per week appears to be in accord with plaintiff’s needs and defendant’s ability to pay. His gross salary is approximately $1,100 per month.

For the foregoing reasons the judgment appealed from is affirmed at appellant’s cost.


text:
    FRENCH QUARTER RESIDENTS ASSOCIATION et al. v. CITY OF NEW ORLEANS and Mayor Moon Landrieu, in his Capacity as Mayor of the City of New Orleans.
    No. 7147.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 9, 1975.

      Derbes & Derbes, James G. Derbes, New Orleans, for plaintiffs-appellants.
    David S. Cressy, Deputy City Atty., Thomas P. Anzelmo, Asst. City Atty., Blake G. Arata, City Atty., for defendants-appellees.
    Before LEMMON, GULOTTA and BEER, JJ.
   LEMMON, Judge.

Plaintiffs, who are associated and individual property owners and residents of the French Quarter, have appealed from a judgment dismissing their rule to halt defendants’ alleged violation of an injunction pertaining to the Sound and Light Project in Jackson Square. At issue is whether defendants’ actions constituted a violation.

In October, 1973 the City of New Orleans and the Mayor were permanently enjoined “from proceeding with the installation and operation of the Sound and Light ('Son et Lumiere’) project in the Jackson Square of the City of New Orleans until there has been full compliance with all legal requirements.” In the accompanying reasons for judgment the trial judge specifically noted the City had failed (1) to obtain approval of the project from the Vieux Carre Commission (V.C.C.), (2) to obtain approval by the City Council in a capital budget ordinance, (3) to hold public bidding on the contract to supply the equipment for the project, and (4) to obtain legislative authority to use Jackson Square for commercial purposes which exclude non-paying citizens. The court did not specifically rule on disputed issues as to zoning violations and nuisance.

On February 18, 1975, while the City’s appeal (subsequently abandoned in July) was still pending, plaintiffs filed the rule at issue herein. Plaintiffs alleged that the City had undertaken a site improvements plan for Jackson Square, which included installation of conduits designed for the Sound and Light project. The petition demanded that implementation of that portion of the improvement plan violative of the injunction be restrained.

At trial counsel stipulated that approximately 20 conduits, being installed around Jackson Square in connection with the extensive improvement program for the area, were installed to serve as the circuitry for the Sound and Light project, although the conduits had other potential uses consistent with good planning; that the landscape architect for the improvement program obtained his information regarding placement of the conduits from the principal contractors for the Sound and Light project; and that the conduits were neither requested nor designed by the utility companies serving the area, who anticipated and provided for the future electrical and telephone needs of the area without use of these conduits. The evidence further shows that the deficiencies specified in the reasons for judgment in the injunction ruling had not been satisfied as to the entire Sound and Light project, although the site improvement program (which included the conduits in question) had been approved by the V. C.C. and approved in the capital budget, and the contract for the improvement program had been awarded by public bidding.

The V.C.C. director testified that these particular conduits in terms of size and location were similar to those proposed in the preliminary specifications for the Sound and Light project, but that numerous conduits (perhaps amounting to $10,000.00 in cost) were included in the $1,000,000.00 project. The director further stated that installation of the disputed conduits at this time will prevent having to tear up the expensive flagstone in the future at an exorbitant cost, if the Sound and Light project becomes a reality or some other need for underground wiring occurs. He admitted that several of the conduits were to be capped in front of 522 St. Peters Street, which is the proposed location of the control room for the Sound and Light project.

The trial court ruled that the site improvement plan was not part of the Sound and Light project and thus not vio-lative of the existing injunction. We disagree.

In our opinion the installation of the conduits, admittedly intended for ultimate use in the Sound and Light project (although other non-specified future uses were possible), constituted a violation of the injunction. We thus reject the «City’s defense, which is based solely on the proposition that the injunction was not violated.

Perhaps the City could have instituted a rule of its own, alleging that the injunction should be modified (if necessary) on the grounds that any violations thereof were justified by the economics and other circumstances of the situation. But in such a rule the City would have the burden of proving facts in support of the request for modification.

With the case in its present posture, however, the City’s conclusional statement that inclusion of the conduit installation in the site improvement plan constituted good planning simply does not excuse violation of the injunction. By proper proceedings the City may perhaps prove facts which justify a modification of the injunction by the trial court; such a proceeding, however, is not now before us, and we cannot in the present case grant a modification without allowing plaintiffs to prepare and present their side of the case.

Accordingly, the judgment of the trial court is reversed, and it is now ordered that judgment be rendered ordering defendants to halt the installation of the conduits indicated on plaintiffs’ Exhibit No. 1, in violation of the injunction of October 24, 1973. Defendants’ rights are reserved to file appropriate proceedings and to attempt to obtain a modification of the injunction.

Reversed and rendered.


author: GULOTTA, Judge. BEER, Judge

text:
    Mark STIPKOVICH v. EMPIRE MENHADEN COMPANY, INC., and United States Fidelity and Guaranty Company.
    No. 6957.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 9, 1975.
    Cave, McKay & Poirier, Donald G. Cave, Baton Rouge, for plaintiff-appellee.
    Porteous, Toledano, Hainkel & Johnson, James L. Donovan, New Orleans, for defendants-appellants.
    Before LEMMON, GULOTTA and BEER, JJ.
   GULOTTA, Judge.

This is an appeal from a judgment awarding total and permanent workmen’s compensation benefits to an employee welder in the sum of $49.00 per week for a period of 500 weeks.

On February 23, 1972, while in the course of his employment, plaintiff injured his lower back when knocked against a metal valve. Defendants concede that plaintiff sustained an injury to his back which activated a pre-existing congenital abnormality. However, Empire claims the aggravated condition caused by the trauma was subsequently brought under control. According to defendants, plaintiff’s disability (if, indeed, a disability exists) results from the congenital abnormality and is not the result of an aggravation of the abnormality caused by trauma.

Finally, it is defendants’ claim that subsequent to the injury plaintiff became gainfully employed as a welder as well as in other physically demanding employment and carried out these jobs without suffering substantial pain.

We fail to find merit in either of defendants’ contentions. The record supports plaintiff’s claim that he was afflicted with a congenital abnormality of the spine, aggravated by the work-related trauma resulting in permanent and total disability. Also, the evidence clearly indicates that plaintiff is unable to engage in heavy lifting, which is one of the tasks required of a welder or of work of a similar character.

DISABILITY

Dr. Jack Wickstrom, an orthopedic surgeon, saw plaintiff on July 21, 1972, August 3, 1972 and August 24, 1972. On his initial visit, plaintiff complained of pain in the lower lumbar region. On a subsequent visit on August 3, 1972, he complained of pain in the back, thigh and buttocks. Dr. Wickstrom found no muscle spasm. He did find that plaintiff was suffering from a congenital spinal defect. Examination did not reveal a herniated disc nor impairment of the nerve function. It is Dr. Wickstrom’s opinion that the trauma aggravated the pre-existing congenital condition which had been asymptomatic. Based on the x-ray findings, Dr. Wickstrom stated that he would not recommend heavy type work which would include lifting because of the danger of re-injury. The doctor further stated that perhaps plaintiff could return to welding if he were not required to do any lifting.

Dr. Byron Unkauf, an orthopedic surgeon, saw plaintiff initially on December IS, 1972, and on approximately eight subsequent visits between the initial visit and plaintiff’s last visit on February 1, 1974. At the time that Dr. Unkauf saw Stipkov-ich, plaintiff was employed as a security guard. According to Dr. Unkauf, plaintiff, in his present condition, is unable to do any heavy labor requiring any lifting. It was the doctor’s opinion that plaintiff was unable to return to his former employment as a welder and had suffered a permanent, total disability. He further testified that persons afflicted as is plaintiff usually get along very well until an injury occurs; however, after such an injury, when they return to heavy work, they commence to have trouble. Dr. Unkauf recommended a spinal fusion.

Dr. Stuart Phillips, also an orthopedic surgeon, saw plaintiff on October 30, 1972. He testified that from plaintiff’s history, Stipkovich had suffered no back aches prior to the injury. He found no muscle spasms, but he recognized, as did the other medical experts, that plaintiff suffered a spina bifida occulta. Plaintiff was again seen by Dr. Phillips on January 29, 1973. Dr. Phillips stated that plaintiff’s pain was subjective, however, this particular type of condition is not one uncommonly associated with back pain after a trauma. It is Dr. Phillips’ opinion that plaintiff’s back problems should respond to conservative treatment. He indicated that if pain persists, perhaps a fusion might be necessary. Dr. Phillips was of the opinion that plaintiff should not return to work which required heavy lifting or repetitive type stooping or bending. The doctor felt that plaintiff suffered a 25% disability which is due to the congenital abnormality and his predisposition to further injury. He stated that the disability was predicated on the defect and the presupposition of future injury. It was his opinion that if plaintiff did not limit his activities, he would have further trouble.

The testimony of Dr. Blaise Salatich, orthopedist, substantially corroborated the testimony of Dr. Unkauf with the exception that Dr. Salatich found muscle spasm in November, 1973. Neither Dr. Unkauf nor the other doctors who examined plaintiff found a spasm.

Dr. Edward S. Connolly, a neurosurgeon, found no nerve compression signs in September, 1972, and did not feel that anything was required in the neurological field. It was Dr. Connolly’s opinion that plaintiff could perform the duties of a welder. Dr. Connolly did state that it was possible that symptoms when a traumatic injury occurred, such as that suffered by plaintiff, could cause some aggravation of the congenital abnormality which, by itself, does not normally produce symptoms. It was his opinion that if anyone hurt his back and then resorted to heavy work, there would exist a potential for aggravation of the back symptoms.

Stipkovich testified that prior to the injury, he had no complaints of any back pain. Plaintiff stated that after the February, 1972 injury, he began having problems with his back. Stipkovich’s complaints were of pain in the lower back and middle spine radiating into the leg. It is plaintiff’s testimony that because of the continued pain, he was compelled to terminate his employment with the defendant company approximately four months after the injury. He further indicated that he suffered pain when doing heavy lifting or when engaging in hard work. He stated that he attempted to pursue various types of employment, but he was unable to continue in any work which required physical labor because of the continuous pain suffered in the lower back.

Significantly, no indication exists from any of the doctors that plaintiff’s complaints were anything other than truthful. The trial judge, in his reasons for judgment, stated:

“The Court believes the testimony of the Plaintiff, Mark Stipkovich. This is only a matter of credibility, and the Court finds the plaintiff credible.
“The Court finds that the Plaintiff cannot do heavy work of the type he was doing at the time of the accident.”

Firmly engrained in our jurisprudence is the rule that great weight must be given to the findings of fact of the trial judge, especially when those findings pertain to the credibility of witnesses.

We are in agreement with the trial judge that the record supports a finding that plaintiff cannot do heavy work, including lifting, which, according to plaintiff, is an integral part of the duties of a welder.

TRAUMA RELATED AGGRAVATION OF PRE-EXISTING ABNORMALITY

It is defendants’ position that the record does not contain any medical evidence that the disability was not the result of the congenital spinal abnormality. Defendants claim that plaintiff failed to carry his burden of proof of showing that the disability was caused from the aggravation of a pre-existing abnormality caused by trauma and not by the pre-existing congenital abnormality alone. We do not agree. A consideration of plaintiff’s pre-injury work history compared with his post-injury work efforts leads to a different conclusion.

Prior to the accident, Stipkovich maintained a steady employment pattern. Plaintiff had been apparently free from any physical impairment which might have prevented him from performing his duties. He worked for Empire Menhaden as a welder from February, 1968 until September, 1968. From October, 1968 through May, 1969, Stipkovich worked as a welder for Quinn Menhaden Fisheries. From June, 1969 through February, 1970, plaintiff was employed as a hot shot truck driver for Mon-Arc Welding Supply, Inc. From February, 1970 through July, 1971, claimant was an inspector for the Pla-quemines Parish Highway Department. Finally, in July, 1971, plaintiff was re-employed by Empire.

Immediately following the accident, plaintiff told his foreman that he did not think the injury was bad enough to go to the doctor, and he continued to work. However, approximately three weeks thereafter, Stipkovich saw the company doctor because the pain had gradually increased. Upon his return to work, Stip-kovich experienced pain when lifting. Fifty-five working days after the injury, claimant terminated his employment as a result of back trouble. Immediately thereafter plaintiff became employed as a welder with Fairchild Construction Company. Continued pain forced Stipkovich to discontinue welding; however, he was permitted by Fairchild to work as a laborer, bulldozer operator and crew boat operator. According to plaintiff, he was terminated by Fairchild on July 22, 1972 because of persistent pain.

Thereafter and until April, 1973, Stip-kovich drew unemployment benefits and supplemented these benefits with income from part-time employment as a security guard. Plaintiff also worked as a school bus washer and as a service station attendant. He was forced to leave his job as a service station attendant as a result of back pain. Pain in the legs caused plaintiff to cease working as a security guard.

After April, 1973, plaintiff began working as a bulldozer operator for Jefferson Disposal Company and discontinued work at this job after only three weeks because he continued to suffer back pain. Plaintiff then returned as a full-time security guard but terminated this employment after approximately five months, again because of leg pain. Subsequently, plaintiff worked for short periods of time as a truck driver for Black Equipment Company and for Gay, Inc. He worked for D. L. Brundage as a carpenter’s helper. Stipkovich was forced to terminate his employment with Brundage because of pain in the lower back, spine and legs.

In Odom v. Kaiser Aluminum & Chemical Corporation, 282 So.2d 580 (La.App., 4th Cir. 1973), we were presented with a problem similar to the one in the instant case. The claimed disability in Odom resulted from an aggravation of a pre-exist-ing congenital defect of the back. In that case, we stated:

“Our law is well settled that under workmen’s compensation the employer takes the employee as he finds him and that an employee disabled by an accident is not to be denied compensation merely because he was already afflicted with a disease which, in its ordinary progress, might eventually have caused disability without any accident, and the accident merely induced disability. * * *”

In determining whether a claimant’s disability is causally related to an accident, great weight attaches to the fact of a sudden change from a condition of health or ablebodiedness prior to an accident to one of disability immediately following thereafter. Ardoin v. Houston Fire and Casualty Insurance Co., 235 So.2d 426 (La.App., 3d Cir. 1970).

Plaintiff’s medical history and work record prior to the injury indicate that the congenital abnormality, alone, was not an impediment to his ability to weld and do heavy lifting. We are convinced that plaintiff’s history and record subsequent to the injury support the conclusion that the injury caused the aggravation of the congenital spinal abnormality. As a result, Stipkovich is unable to do heavy lifting and return to his occupation as a welder.

Accordingly, we conclude plaintiff is totally and permanently disabled. We affirm.

Affirmed.

BEER, J., dissents with written reasons.

BEER, Judge

(dissenting).

Plaintiff-appellee’s counsel states in his brief that “the real issue in this appeal is whether the medical evidence supports the disability finding” and I agree.

However, I am not able to conclude that the medical evidence does support the disability finding and, therefore, must respectfully dissent.

As I understand the medical testimony the plaintiff had and continues to have a congenital deficiency in that there is not a complete closure of his spinal canal but this defect is not accompanied by any hernial protrusion of the membrane covering the spinal cord. Also, he has a second congenital condition that is best described in layman’s terms as vertebral stiffness. The first noted deficiency is usually susceptible to diagnosis and confirmation by x-ray but may not cause any particular physical or mechanical abnormality or difficulty.

The existence of the second noted deficiency may possibly cause some limitation of motion which could increase the time normally required to recover from trauma to the back. But neither of the congenital conditions are — themselves—necessarily changed from chronic to acute status by trauma. Most important, in my view, is the insufficient showing that the plaintiff’s present alleged disability results from anything other than his generally unchanged preexisting back condition, though, perhaps, now more susceptible to accurate description since his congenital deficiences have been diagnosed.

I believe that this case is governed by the holding of our brothers in the First Circuit in Monistere v. Louisiana Dept. of Hospitals, 273 So.2d 594 (La.App. 1st Cir. 1973) in which they reversed the trial court’s award of permanent and total disability and dismissed plaintiff-appellee’s suit.

It is quite true that insofar as our workmen’s compensation statutes are concerned an employer takes his employees as he finds them and is, therefore, responsible when a dormant preexisting condition, however insignificant, is aggravated in a work connected accident to the extent of causing disability or pain. But that settled jurisprudence has, I believe; come more and more to be treated as a hard-to-rebut presumption of liability in cases involving congenital defects. The unsatisfactory result in these instances has been to effectively eliminate the requirement that the plaintiff fully carry the burden of proof. For all practical purposes, there has been a shifting of the burden of proof to the defendant to prove that the allegedly injured worker’s congenital condition has stabilized at the same level existent prior to injury. This is, from a practical medical standpoint, almost impossible. Furthermore, it results in creation of a burden of proof situation that is not consistent with the rule announced by the Supreme Court of Louisiana in Hebert v. Your Food Processing & Warehouse, Inc., 248 La. 197, 177 So.2d 286 (1965).

Accordingly, I respectfully dissent.

      . Spina bifida occulta is defined in the record as a congenital defect of the spine where there exists a lack of union or fusion of the vertebrae resulting in a space between the vertebrae.


author: GULOTTA, Judge.

text:
    Leila MAGEE et al. v. T. SMITH & SON, INC., et al.
    No. 6954.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 9, 1975.
    Sanford Krasnoff, Michael S. Guillory, New Orleans, for plaintiffs-appellants.
    Phelps, Dunbar, Marks, Claverie & Sims, Eugene R. Preaus, New Orleans, for defendant-appellee, Hibernia National Bank in New Orleans.
    Before LEMMON, GULOTTA and BEER, JJ.
   GULOTTA, Judge.

This is an appeal from a judgment maintaining an exception of no cause or right of action. For purpose of clarity, it is necessary that some background factual information be considered.

According to the petition, Ray Magee, an employee of T. Smith & Son, Inc., was injured on December 5, 1968, while in the course of his employment. A compromise agreement was entered into by Magee with defendants, T. Smith & Son, Inc., and its insurer, Employers Commercial Union Insurance Company, in the sum of $12,500.00.

Thereafter, a check was drawn on the First National Bank of Commerce, dated August 4, 1971, payable to Magee and his attorney, in the amount of the compromise. The check was endorsed by the attorney on his own behalf and as agent for Magee in accordance with a power of attorney held by the attorney. The check was then deposited on August 13, 1971, in the attorney’s bank account in the Hibernia National Bank in New Orleans.

On July 24, 1971, before the check was deposited, Ray Magee died. Upon learning that the endorsement was made subsequent to Magee’s death, defendants, T. S'mith & Son, Inc., and its insurer, concluded the transaction was not valid. As a result of defendants’ position, the drawee bank (First National Bank of Commerce) made a demand upon Hibernia National Bank (the paying bank) for return of the $12,500.00 amount. Hibernia debited the attorney’s account but refused to surrender the amount to the drawee bank, National Bank of Commerce. The funds at this time remain in the possession of the Hibernia National Bank. Multiple litigation followed, including the instant suit filed by the heirs of decedent to enforce the compromise agreement.

The demand against Hibernia in the instant suit is for the funds deposited on behalf of decedent, together with accumulated interest and damages. Hibernia National Bank filed an exception of no cause or right of action based on the theory that since the bank was not a party to the original compromise sued upon, no relationship existed between plaintiffs (decedent’s heirs) and defendant, Hibernia National Bank. The exceptions were maintained and this appeal followed.

Plaintiffs’ claim against Hibernia is predicated on the assumption that the check was properly endorsed in accordance with a valid power of attorney in possession of decedent’s agent, the attorney. Assuming (but not holding) the validity of the power of attorney and the endorsement as claimed by plaintiffs, we find no merit to plaintiffs’ theory that any third party (Hibernia National Bank) having custody of a principal’s property (heirs’ money) when placed in the bank’s care by the agent (the attorney) is likewise liable to the principal (heirs.)

We fail to find validity in plaintiffs’ reliance on LSA-R.S. 10:4 — 201; Interstate Electric Co. v. Frank Adam Electric Co., 173 La. 103, 136 So.2d 283 (1931); Destrehan v. Louisiana Cypress Lumber Co., 45 La.Ann. 920, 13 So. 230 (1893); Succession of Onorato, 219 La. 1, 51 So.2d 804 (1951), in support of their contention. The above cited cases are not authority for the rule of law advanced by plaintiffs. Interstate Electric stands for the basic agency rule (with which we have no quarrel) that when the agent’s apparent authority is different from his actual authority, the principal is not relieved of responsibility for acts of the agent when dealing with third parties. Destrehan merely states that knowledge of the agent is knowledge of the principal. Onorato is concerned with the burden of proof required when fraud was involved in the comingling of funds by an agent. Clearly LSA-R.S. 10:4-201 is not applicable. This is a substantive statute adopted by the legislature in 1974, effective January 1, 1975, and has no retroactive or retrospective effect on transactions, such as the instant one, entered into prior to the effective date of the statute. See State ex rel. Howard Kenyon Dredging Co. v. Miller Gravity Drainage Dist. No. 3, 193 La. 915, 192 So. 529 (1939); State ex rel. Spann v. Board of Tr. of Police Pen. F., 283 So.2d 294 (La.App., 4th Cir. 1973).

We further find no merit to plaintiffs’ contention that the bank is liable .to them for any damages caused by its wrongful dishonor of payment of the check or by the unlawful conversion of the funds on deposit. The petition might very well state a cause of action against the defendant bank; however, the heirs are not the rightful parties to assert a claim against the bank for recovery of the funds on deposit in the attorney’s account. Our problem is not one of no cause of action but of no right of action. See Bielkiewicz v. Rudisill, 201 So.2d 136 (La.App., 3d Cir. 1967) and Alside Supply Company v. Ramsey, 306 So.2d 762 (La.App., 4th Cir. 1975) for a discussion of the exception of no right of action. In this connection it is important to ascertain the relationship of the bank to the attorney, its depositor.

It is well settled in our jurisprudence that such a relationship is that of a debtor-creditor. The depositor is a creditor of the debtor bank. Andrews v. Marion State Bank, 286 So.2d 375 (La.App., 2d Cir. 1973), writ refused, 287 So.2d 189 (1974); Allen v. Cochran, 160 La. 425, 107 So. 292 (1926); Hibernia Nat. Bank v. National Bank of Commerce, 204 La. 777, 16 So.2d 352 (1943). As such, it is arguable that the attorney might be the rightful party to assert a cause of action against the bank for return of the funds. However, no relationship nor privity exists between the bank and the heirs which would allow a right to be asserted by the heirs against the bank. If we assume the power of attorney is valid (although executed after the death of decedent, but according to the allegations in the petition the attorney was not aware of decedent’s death. See LSA-R.C.C. art. 3027 and LSA-R.C.C. art. 3032, ) then the endorsement by the attorney of the check made payable to himself and to decedent is valid.

However, ownership in the decedent of the check is divested by the endorsement and the deposit. The check (after endorsement and deposit) is not owned by the depositor, i.e., the attorney or the decedent, but becomes the property of the bank. The money paid into the bank ceases to be the money of the depositor and becomes the money of the bank, which it may use, returning an equivalent when demanded, by paying a similar sum to depositor. See the time-honored old case of Planters’ Bank v. Union Bank, 83 U.S. 483, 16 Wall. 483, 21 L.Ed. 473 (1872) where the court gave expression to this rule. A different result might be reached if a particular object belonging to a third party were placed for safekeeping in a safety deposit box of a bank by the owner of the box. Because the ownership of the particular object has not been divested by placing it in the safety deposit box, the owner of the object might have a cause of action against the bank, or against the bank and the owner of the box. This is not the situation in the instant case.

Having concluded decedent and, therefore, his heirs were divested of ownership of the check, and having found that decedent and the heirs had no relationship or privity with the defendant bank, we hold the heirs are not the proper parties to assert a claim against the bank (Hibernia National Bank in New Orleans) for the return of the funds on deposit, interest or damages. The exception of no right of action was properly maintained. The judgment dismissing defendant, Hibernia National Bank in New Orleans, is affirmed.

Affirmed.

      . First National Bank of Commerce filed suit against Hibernia to recover the $12,500.-00. Hibernia filed third party complaint against decedent’s attorney alleging that if they were cast in judgment, they were entitled to recover against decedent’s attorney. A second suit was filed in the United States District Court by decedent’s attorney for damages against Hibernia National Bank in New Orleans, First National Bank of Commerce and others.

      . Plaintiffs set forth in brief that since the filing of this appeal, decedent’s attorney has confirmed the original settlement entered into with the original defendants, T. Smith & Son, Inc., and Employers Commercial Union Insurance Company and executed a partial dismissal of this suit in their favor.

      . LSA-R.C.C. art. 3027 reads as follows:
      “The procuration expires:
      “By the revocation of the attorney.
      “By the attorney’s renunciation of the power.
      “By the change of condition of the principal.
      “By the death, seclusion, interdiction or failure of the agent or principal.
      “But the powers of attorney by public act or by writings under private signature, or by letter, to transfer on the books of stock corporations, bonds or shares of stock in said corporations, shall be irrevocable, and shall uot expire by the death, seclusion, interdiction or failure of the principals, where the said bonds or shares of stock have been previously sold to the persons holding the said powers of attorney, for value received, and said facts are set forth in such powers of attorney.”

      . LSA-R.C.C. art. 3032 reads as follows:
      “If the attorney, being ignorant of the death or of the cessation of the rights of his principal, should continue under his power of attorney, the transactions done by him, during this state of ignorance, are considered as valid.”