author: BEER, Judge.

text:
    Thomas D. JENKINS v. J. J. KREBS & SONS, INC.
    No. 7072.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 11, 1975.
    Rehearing Denied Dec. 9, 1975.
    Writ Refused Jan. 30, 1976.

      Rene' A. Pastorek, Gretna, for plaintiff-appellee.
    Racivitch & Wegmann, William J. Weg-mann, New Orleans, for defendant-appellant.
    Before BOUTALL, MORIAL and BEER, JJ.
   BEER, Judge.

On January 27, 1971, defendant-appellant, J. J. Krebs & Sons, Inc. (hereafter, Krebs) was employed by plaintiff-appellee, Thomas Jenkins (hereafter, Jenkins), through his attorney, to “confirm” an earlier survey of a tract of land which he had agreed to purchase but had not yet acquired by act of sale. Jenkins did not specifically request an acreage computation in connection therewith but the earlier survey which was subsequently confirmed by Krebs included a written notation that the tract contained 13.16 acres. As a matter of fact, Krebs did not actually confirm the acreage figure but relied, for this information, upon the earlier survey of the tract which had been forwarded to him to confirm. Krebs (or his employee) simply assumed that the acreage figure on the earlier survey was correct since all the measurements of the boundary lines on the earlier survey were confirmed for accuracy when located and measured by Krebs. However, the original mathematical computation of the acreage figure had been incorrectly made.

The parties agree that, after the sale, a correct computation showed that the tract contained only 11.26 acres, not 13.16 acres as shown on the surveys — although the lines were all correctly measured in both surveys. Jenkins now contends that he has relied, to his detriment, on the acreage information confirmed by the Krebs’ survey since the sale by which he acquired the tract was based upon a dollar per acre price. He claims injury in the amount of $6,840, the alleged “overpayment” computed at $3,600 per acre.

In spite of the now acknowledged fact that the original acreage computation was mathematically in error, the size and configuration of the tract was correctly depicted on the earlier survey and on the confirmation survey submitted by Krebs. Thus, the mathematically incorrect computation made at the time of the earlier survey which was carried over onto the Krebs’ survey was the only inaccuracy on the work product submitted by Krebs to Jenkins.

Mr. Hugh McCurdy, an expert civil engineer and land surveyor called by Jenkins, testified that surveys involving this amount of acreage will, sometimes, include a figure showing the computation of the acreage even if not' specially requested. He further testified that it is not a usual practice to include such acreage figures without independently performing the calculation of same.

Krebs testified that he was never informed that the sale was “by the acre.” He was not asked to compute acreage but only to “certify the survey” referred to in the agreement to purchase. He stated that acreage figures on rural land are not usually computed unless requested although improvements and compass points are, as a practice, shown on the survey even if not specifically requested. He acknowledges that there is now a trend to include acreage calculations since land is now often sold on an acreage basis. He testified that he has, in past instances, relied on previous surveys for the acreage figures if all the other measurements check out as in this case. While not willing to call this reliance a “practice” on his part, he reiterated that the acreage figure is not usually re-computed if the measurements on the old and new surveys correspond in all respects as they did in the instant case.

Mr. Venance Lambert, one of the real estate brokers involved in this transaction, testified that the land was originally offered for sale on a price per acre basis. The parties to the transaction with which we are concerned then negotiated to a $3,600 per acre price which, when multiplied by 13.16 acres, produced a figure of $47,360 which was, in fact, the sale price. Lambert indicated that he utilized the acreage figure contained in the title extract which was attached to the purchase agreement although he acknowledges that another survey referred to as the “Stewart survey” indicated only 12.11 acres were contained within the boundaries of this particular tract. He also acknowledged that the purchase agreement did not contain specific reference to the sale price being based on the number of acres within the tract.

Mr. John Hutyra who represented the sellers of the tract in the negotiations testified that the sale price was negotiated on a dollar per acre basis, confirming the testimony of Jenkins in this regard.

Jenkins acknowledges that he did not have the benefit of the Krebs' survey when he made the offer to purchase, but does aver, nevertheless, that he secured same to confirm the fact that he was receiving 13.-16 acres. He acknowledges, however, that the only survey referred to in the act of sale is the earlier survey from which defendant copied the acreage figure.

The record supports the conclusion that Jenkins has acquired a lesser number of acres than he bargained for due, at least in part, to the overzealous but incorrect action of Krebs’ employee. Since the sellers of the tract are not before the court in any capacity, the issue here is obviously restricted to the liability vel non of Krebs. Furthermore, since the record is barren of any testimony or other evidence which might indicate any proposed method of measuring damages other than that which is proposed by Jenkins, we are constrained to hold that a finding of liability on the part of Krebs will require that the damage award be based upon the per acreage figure of $3,600 multiplied by the deficient acreage of 1.9 which equals $6,840. This has caused us much concern yet, from the state of the record, we can perceive no alternative method of calculating damages.

We do not find error in the trial court’s determination that Krebs is liable. The inclusion of the incorrect acreage figure may not, at its inception, have been anything more than a mistake of judgment on the part of Krebs’ employee. However it was ultimately transmitted, duly certified as correct, by J. J. Krebs & Sons, Inc. to Jenkins who, by reasonable reliance thereupon, incurred a loss. That loss can fairly be said to have directly resulted from a faulty and defective exercise of care and skill on the part of the professional surveyor. We believe that the rule which we announced in Maloney v. Oak Builders, Inc., 224 So.2d 161 (La.App. 4th Cir. 1969) is applicable here.

The fact that an acreage computation was not specifically requested can not be a basis for reversal of the trial court’s judgment. The failure of Krebs’ clerk to recompute the acreage figure before confirming it has .resulted in damage because of Jenkins’ reasonable reliance thereupon. Although the cases dealing with the so-called good Samaritan rule are not entirely on point, it is nevertheless clear that the technical data contained in a land survey must, within a test of reasonableness, be reliable regardless of whether or not a particular computation was specifically requested for inclusion with the ultimately transmitted professional work product or simply confirmed thereby. Krebs is as much professionally responsible for the direct results of the incorrect computation as he would be if it had been a part of the survey data because of routine and usual inclusion. It was confirmed by his office in the same degree as all other professionally determined data included therein.

Krebs timely filed an exception of prescription which, overruled by the trial court, is now also before us in this appeal. Krebs contends that Jenkins’ claim sounds in tort and, thus, has prescribed since the survey was completed and reported upon in February of 1971 and this suit filed only in January of 1974. Also of possible significance is the unrefuted contention by Jenkins that he discovered the discrepancy in May of 1973.

We do not find error in the trial court’s decision to overrule the exception. The relationship between Jenkins (through his attorney) and Krebs was contractual. For $480 Krebs agreed to survey the tract in question. That contract was breached in the manner previously described.

We are however, obliged to disagree with the trial court’s conclusion regarding payment for the survey.

The contract to confirm the earlier survey was carried out by Krebs. Jenkins derived certain benefits therefrom and we conclude that Krebs has a right to be paid for his services. Jenkins has not sought dissolution of the contract nor does he contend that any of the actual survey work performed by Krebs was faulty or inaccurate. At the very least Krebs would be entitled to quantum meruit for the work that was properly performed and, in the circumstances of this case, such a finding would support an award of the total contract price of the survey.

Accordingly, the judgment of the district court is amended so as to delete that portion which awards plaintiff $480 as return of the cost of the survey and must, therefore, be reduced to a total of $6,840. In all other respects the judgment is affirmed. Each party is to pay their own costs of this appeal.

Amended and affirmed.

      . The tract is described as Farm Lot 41 of Delacroix Plantation -which is located within Orleans Parish in the “lower coast” area of Algiers.


source: Caselaw Access Project

author: MORIAL, Judge. LEMMON, Judge

license: Public Domain

text:
    Dolores Narcisse, wife of Clarence LEWIS v. The INSURANCE COMPANY OF NORTH AMERICA.
    No. 7055.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 11, 1975.
    Rehearing Denied Dec. 9, 1975.
    Writ Refused Jan. 30, 1976.

      E. Howard McCaleb, III, New Orleans, for plaintiff-appellee.
    Robert J. Young, Jr., Michael K. Fitzpatrick, Edward L. Levert, Jr., New Orleans, for defendant-appellant.
    Before, SAMUEL, LEMMON and MORIAL, JJ.
   MORIAL, Judge.

Plaintiff, Dolores Narcisse, sued defendant in workmen’s compensation alleging that on August 17, 1973, while an employee of the Downtowner Motor Inn, she slipped on a piece of lettuce and injured her back. She claimed that as a result of this accident she is totally and permanently disabled. After trial on the merits, the district court found the plaintiff to be totally and permanently disabled and awarded her compensation in the amount of $54.60 per week for the continuation of her disability not to exceed 500 weeks with legal interest on each past due installment and medical expenses not to exceed $12,500.00, and all costs. Defendant appeals from this judgment. We affirm.

Plaintiff is a middle aged female who weighs approximately 250 pounds. She had been employed as a cook at the Down-towner for nearly 7i/¿ years at the time of the accident. Her base pay was $84.00 per week.

We deem it unnecessary in this case to set forth in elaborate detail the medical testimony. Plaintiff was examined by two general surgeons and two orthopedic surgeons. All noted that she had a degenerative osteoarthritic condition which was most likely dormant before the accident. After examination one general and one orthopedic surgeon concluded that the plaintiff was physically able to return to work. The other physicians found that the fall probably “triggered” the plaintiff’s existing arthritic condition and that she was now unable to perform the requisite duties of her former occupation without substantial pain.

Seven lay witnesses, two of whom are cooks testified. Each had observed the plaintiff before her August 17 fall and stated she had always been fully mobile. After the fall, they all noted that she could no longer lift heavy objects, stoop, bend or do strenuous housework. The cooks testified that cooks are often required to lift heavy pots and stoop. Clearly, this lay testimony is to be given consideration. Only recently in Tontillo v. Liberty Mutual Insurance Company, 315 So.2d 743, 749 (1975) our Supreme Court stated:

“ * * * 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.”

The lay testimony is unequivocal that plaintiff continues to suffer pain and remains unable to execute the physical functions required to pursue her regular employment without pain. The trial judge furnished us with no written reasons for judgment. Apparently, he correctly concluded that the totality of the evidence, medical and lay, supported a finding that the plaintiff either incurred a disabling injury from the fall or that her degenerative osteoarthritic condition was sufficiently aggravated thereby to result in her permanent disability. It is well settled that a work related accident which aggravates a preexisting condition resulting in disability is compensible under the Louisiana Workmen’s Compensation Act. Jones v. Douglas Public Service, 264 So.2d 267 (La.App. 4 Cir. 1972).

In an effort to defeat plaintiff’s claim for permanent and total disability, defendant attempts to make much of the fact that plaintiff is tremendously overweight and has not only ignored her doctors’ requests to reduce but has actually gained weight. The gist of the medical testimony most favorable to defendant indicates that the plaintiff’s disability will not improve unless she reduces her weight by at least 100 pounds.

We recognize the well settled rule so aptly stated in Blanchard v. Delta Marine Engineering, Inc., 252 So.2d 695, 696 (La.App. 1 Cir. 1971), that “An [a] injured employee cannot, willingly and unreasonably, refuse to submit to treatment, or to a program of rehabilitation. His compensation benefits can be discontinued if he is suffering from a disability which can be remedied by treatment in which he refuses to cooperate. * * *” (Citations omitted). However, that rule is inapplicable to the facts of this case. It is true that plaintiff was advised by all doctors to lose weight, yet no physician ever placed her upon a prescribed weight reducing regimen from which she voluntarily deviated. Accordingly, we do not consider her actions to be a refusal “to submit to treatment, or to a program of rehabilitation.” Furthermore, the record does not disclose that treatment which would require the plaintiff to lose 100 pounds is reasonable. Defendant has failed to prove by clear, convincing and conclusive evidence that a failure on the part of the plaintiff to cooperate with any prescribed treatment, or that her willful misconduct is the cause of her continued disability. Thomas v. Crown-Zellerbach Corporation, 101 So. 2d 478 (La.App. 1 Cir. 1958).

A consideration of the medical and lay testimony brings us to the conclusion that the plaintiff suffered total and permanent disability and is now unable to perform all the functions required of a cook.

For the reasons assigned the judgment of the district court is affirmed.

Affirmed.

LEMMON, J., concurs with written reasons.

LEMMON, Judge

(concurring).

The record definitely supports a finding of total disability at time of trial, and I therefore concur in affirming the judgment. I am concerned, however, as to the proof that plaintiff was permanently disabled.

Even the medical testimony most favorable to plaintiff conceded that she obtained recovery from the muscular sprain in several months and that recovery from any aggravation of her preexistent (but previously dormant) arthritic condition was difficult to achieve without a significant weight loss. Furthermore, the record revealed no medical cause underlying plaintiff’s obesity and no medical reason why she can’t lose weight. Finally, the record established that plaintiff’s gross obesity would necessarily have aggravated her congenital spinal defect at an early age.

Thus, the case presents issues not only as to whether plaintiff failed to submit to reasonable medical treatment, but also as to whether she continued to be disabled because of the work-related injury.

As to any failure to submit to treatment by means of weight reduction, the majority opinion points out two problems. First, no treating physician prescribed a specific weight reducing program, and second, the recommended treatment may not be reasonable.

Certainly, any competent physician will prescribe a weight reduction program, and I believe plaintiff must request and attempt such a program in order to be entitled to continuing compensation benefits. Nevertheless, since the recommended treatment involved a huge weight loss, we cannot determine reasonableness without evidence as to a specific program of treatment.

Every case involving an issue of failure to submit to medical treatment raises questions of degree and of reasonableness of effort. I simply don’t believe plaintiff can decline to make any effort whatsoever toward recovery and collect maximum benefits based on permanent disability.

I am impressed that plaintiff submitted to surgery for a preexistent hernia in order to be able to wear a relief-producing orthopedic corset which would otherwise have aggravated the hernia. I also recognize that plaintiff did obtain medication for weight reduction from Charity Hospital and took this medicine until the prescription was terminated because of side effects. However, we have now found defendant liable for all medical expenses during the duration of plaintiff’s disability, and I believe plaintiff must now make some reasonable attempt at weight reduction and ultimate recovery in order to remain eligible for compensation benefits.

      . A judgment finding permanent disability is subject to modification if the claimant recovers. Likewise, a judgment finding temporary disability is subject to modification if the disability becomes permanent. R.S. 23:1331. Therefore, the only difference in result from a practical standpoint is the ' question of which party must seek the modification.


author: BOUTALL, Judge.

text:
    LYKES BROS. STEAMSHIP CO., INC. v. F. C. DOYAL, Jr., Administrator of the Department of Employment Security and Melford Swain, Jr.
    No. 7041.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 11, 1975.
    Rehearing Denied Dec. 9, 1975.
    Charles F. Lozes and Andrew T. Martinez, Terriberry, Carroll, Yancey & Farrell, New Orleans, for Lykes Bros. Steamship Co., Inc., for plaintiff-appellee.
    Marion Weimer, James A. Piper and James A. McGraw, Baton Rouge, for defendants-appellants.
    Before STOULIG, BOUTALL and BEER, JJ.
   BOUTALL, Judge.

This appeal involves the issue of entitlement to unemployment benefits. After remand, the district court found in favor of the employer, Lykes Bros. Steamship Co., Inc., holding the employee not entitled to benefits. The Administrator appeals.

This case has a rather complicated history. An employee of Lykes Bros, applied for unemployment benefits. The local administrative office for the Division of Employment Security held that the claimant was eligible for benefits. The Appeals Tribunal disqualified the claimant from benefits and the Board of Review reversed that determination. After exhausting its administrative remedies, Lykes Bros, sought judicial review to the district court wherein the Board of Review’s decision was reversed. An appeal to this court was taken and we decided that the claimant was not disqualified from receiving benefits under R.S. 23:1601(1) but remanded to the Board of Review for factual evidence and determination of the question whether the claimant was “available for work” within the meaning of R.S. 23:1600(3). See Lykes Bros. Steamship Co. Inc. v. Doyal, 299 So.2d 477 (La.App. 4th Cir. 1974). The Board of Review took additional evidence and found claimant entitled to benefits. Again the district court reversed that decision and the case is back before us.

The issue now before this court is whether the claimant was “available for work” within the meaning of R.S. 23:1600(3).

The basic facts of the case are set out in our earlier decision, Lykes Bros. Steamship Co. Inc. v. Doyal, supra. On remand the following facts were brought out at the hearing: The claimant, Melford Swain, Jr., signed up for unemployment benefits after his 60 days of paid vacation were over. During the period that claimant alleges he was available for work he held a reship letter and later utilized that privilege to rejoin the SS Joseph Lykes. An excerpt from the National Shipping Rules (section D, subsection c) relating to reship privileges was introduced. The pertinent part of these rules state, “During any period that a seaman is registered to reship he may not compete for any other job.” The testimony further showed that any seaman holding a reship letter can make himself available for work by unilaterally giving up his reship privilege and seeking employment on the “open board”. Claimant testified that he did not do this because he wished to remain a member of the crew of the SS Joseph Lykes. Lykes Bros, introduced documentary evidence which shows that during the period claimant alleges he was unemployed and available for work there were some seven jobs filled by men with similar job classifications and less seniority. It is not contested that had claimant renounced his reship privileges and sought employment at his union hall he would have been hired.

We find that claimant was not “available for work” because he held reship privileges. The National Shipping Rules, § D, subsection c., clearly states that he cannot obtain another berth as long as he continues to hold this privilege. The claimant had an opportunity to make himself available by renouncing his reship privileges and chose not to do so.

Availability has been described as a passive rather than an active concept. Smith v. Administrator, Division of Employment Security, 95 So.2d 349 (La.App. 2nd Cir. 1957). However, as the court in Raborn v. Heard, 87 So.2d 146 (La.App. 1st Cir. 1956) stated:

“Of course, for purposes of drawing >-unemployment compensation employees ■ cannot arbitrarily remove themselves from availability for work by restricting their willingness to work to certain hours, types of work, or conditions, not usual or customary in the occupation, trade, or industry, * * * * ” (Citations omitted.)

In this case he voluntarily restricted himself to a particular berth on a particular ship.

For the above reasons we affirm the judgment of the district court. Appellant to pay all costs.

Affirmed.


text:
    Alice Shepeard, wife of and Willie SHEPEARD v. BAGGETT TRANSPORTATION COMPANY. Lonnie JENKINS, Individually and as Administrator of the Estate of his minor daughter, Lydia C. Jenkins v. BAGGETT TRANSPORTATION COMPANY.
    Nos. 7050, 7051.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 11, 1975.
    Rehearing Denied Dec. 9, 1975.
    Writ Refused Jan. 30, 1976.

      Rene' A. Pastorek, Gretna, for plaintiffs-appellees, Alice Shepeard, wife of/and Willie Shepeard.
    Edgar N. Quillin, Arabi, for plaintiffs-appellees, Lonnie Jenkins, Individually and as Administrator of the Estate of his minor daughter Lydia C. Jenkins.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Claude D. Vasser, New Orleans, for defendant-appellant.
    Before STOULIG, BOUTALL and BEER, JJ.
   BEER, Judge.

Plaintiffs-appellees, Alice Shepeard, wife of/and Willie Shepeard (hereafter, Shep-eard) and Lonnie Jenkins, individually and as administrator of the estate of his minor daughter, Lydia C. Jenkins (hereafter, Jenkins) seek damages against defendant-appellant Baggett Transportation Company (hereafter, Baggett) alleging that the vehicle in which they were passengers was struck by a Baggett truck on the Westbank Expressway at its approach to the Greater New Orleans Mississippi River Bridge on April' 14, 1972, causing injury to each of them.

Baggett denies the occurrence of the accident — or the involvement of its truck if the accident did occur — and also filed a third party demand against the driver of the plaintiff vehicle.

After trial on the merits, the court, without written reasons, entered judgment in favor of both plaintiffs.

Baggett suspensively appeals to this court. We reverse and render.

Plaintiffs allege that they were guest passengers in an automobile driven by one Julia Murray. They contend that the automobile was in the left-hand lane near a cement divider when a Baggett truck, proceeding in the right lane, pulled over and struck their vehicle forcing their car into the cement divider. They claim that the truck kept going across the bridge, but that they were able to get its license number and the name of the company shown on the truck.

No report was made to the police; therefore no police investigation took place. However, some unidentified person apparently made a telephone call to Bag-gett’s office sometime on the day of the accident stating that one of its trucks had been involved in an accident. Andrew Zetch, the driver of a Baggett truck on the day of the alleged accident testified that he was not involved in an accident on April 14, 1972. He testified that he had made a delivery to the Southern Pacific Railroad at Avondale, Louisiana, on that date from Baggett’s yard on the eastbank. He does not deny the possibility that he could have used the Greater New Orleans Mississippi River bridge on the day in question.

No details as to where the alleged accident supposedly occurred were given in the anonymous telephone call to Baggett’s office therefore no details could be checked with Zetch, except to inspect his truck to determine if any damage or paint scrapes were present to indicate that the truck had struck something without the driver’s knowledge. The inspection revealed no evidence of the truck having been involved in an accident.

Before the driver, Zetch, had taken the witness stand, Shepeard testified that she had observed the face of the driver of the Baggett truck prior to the occurrence of the accident and identified, as the “driver,” one Richard Harvey, an individual who was seated in the courtroom as a representative of Baggett. Mr. Harvey was thereafter, called to the witness stand by the defendant and testified that he had never been a truck driver for Baggett and was not driving a Baggett truck on April 14, 1972. He testified that he was a sales representative for the company, handling freight and delivery accounts, and did not have a chauffeur’s license.

Shepeard acknowledged, on cross-examination, that she fraudulently used a social security card in the name of Lonnie Jenkins while she was working at the Steak Knife Restaurant prior to and at the time of the alleged accident. She testified that she was a welfare recipient and concerned that she would lose her welfare benefits if the welfare department discovered that she was working. She arranged with the other plaintiff, Lydia Jenkins, the daughter of Lonnie Jenkins, to obtain the social security card of Lonnie Jenkins and used his name on the Steak Knife Restaurant payroll records in order that she might work there and continue to collect welfare benefits. She testified that she would endorse the name Lonnie Jenkins on her paycheck in order to cash it.

Shepeard testified that after the alleged accident, she was not able to work at all from April 14, 1972 until she was discharged by Dr. Rozas on July 21, 1972. However, this was contradicted by the testimony of Mr. Bob Roth, a co-owner of the Steak Knife Restaurant who, referring to payroll records, testified that she had worked during much of this period.

Lydia Jenkins testified that she was also employed at the Steak Knife Restaurant at the time of the accident. However, Mr. Roth testified that to his knowledge the restaurant had never had an employee by the name of Lydia Jenkins and when he was asked during the trial whether he recognized Lydia Jenkins as a former employee, he testified that he had never seen her before.

The history that Ms. Jenkins gave to Dr. Shurden about the accident varied from the testimony that she gave at the time of the trial with respect to how this accident occurred. Dr. Shurden was told, when he examined her twelve days after the alleged accident, that “she was sitting in the front seat on the right-hand side of the car and the car she was in was hit from the rear causing her to jerk her neck and low back.” At the trial she testified that she was sitting in the back seat, and that the car was not struck in the rear but was “sideswiped” by the truck.

Julia Murray, the alleged driver of the automobile in which plaintiffs were passengers could not be located by plaintiffs. However, counsel stipulated the admissibility of a statement allegedly given by Julia Murray contained in defendant attorney’s file as well as a statement allegedly given by Julia Murray contained in the plaintiff attorney’s file. The first statement which was a recorded interview taken on July 31, 1972 repeatedly averred that she was not the driver of the automobile occupied by Alice Shepeard and Lydia Jenkins, but that in fact her husband, Kenneth R. Murray, was the driver. However, in the statement given to the plaintiff attorney’s office on August 1, 1972 she stated that she was the driver of the car at the time of the alleged accident.

As we consider the diametrically conflicting versions of who was driving the Murray vehicle contained in the two statements of Julia Murray (admitted by joint stipulation), it is apparent that she was, in fact, the driver and that she was, in fact, driving without a license. Her version that had her husband driving was obviously concocted because of this. Although this may be only prima facie evidence of her unfitness to drive the presumption of such unfitness has not, in any way, been overcome by subsequent evidence to the effect that, notwithstanding a lack of license, she was a competent driver. Quite the contrary is the case. All that we know for certain about Julia Murray, who never testified, is that she was obviously untruthful in the statements she made concerning certain material facts regarding the alleged accident. In Pierre v. Allstate Insurance Company, 257 La. 471, 242 So.2d 821 (1970) the Supreme Court discussed the Louisiana driver’s license law and the highway regulatory act from the standpoint of civil responsibility. They stated:

“Criminal statutes are not, in and of themselves, definitive of civil liability. They are, however, guidelines to which a court may resort to establish a proper standard of care for assigning civil liability. Criminal statutes do not set forth the civil rule; it is the court which by analogy must determine whether the statutes can define the rule to be applied in civil cases.”

Clearly, then, the fact of Murray’s lack of a driver’s license coupled with no showing that she was, nevertheless a competent driver, is — at the very least — material to our deliberations in this already very questionable case.

The plaintiffs’ versions of the facts upon which they base their claims, considered in light of all the evidence adduced in this trial, force us to the conclusion that they have not carried the burden of proving that either the alleged accident — or the alleged damages resulting therefrom — were the result of negligence on the part of the defendant or its agent.

Testimony which is trustworty and entitled to be relied upon is a precious commodity in a suit for damages arising from a vehicular accident where the record is barren with respect to evidence of physical facts and also barren of testimony of any impartial witnesses. As we focus the scrutiny which we believe to be essential to a painstaking review of this record under such circumstances, we fail to find that measure of credibility ascribable to plaintiffs’ testimony which is necessary to sustain their burden of proof.

We are not at all persuaded by able counsel for appellees’ argument that acknowledgment of some falsehoods on the part of the plaintiffs is a signal that what remains unacknowledged is, therefore, likely to be truthful.

The record indicates that the district judge before whom this matter was tried was sufficiently concerned about certain testimony of the plaintiffs that, in open court, he ordered copies of the record of these proceedings be sent to:

1. The United States Attorney;
2. The District Attorney for the Parish of Jefferson; and
3. The Louisiana State Department of Public Welfare.

He stated from the bench that the reason for rendering this order was to facilitate an investigation of possible perjury.

Having concluded, as we do, that the plaintiffs have failed to meet the burden of proof required, we deem it unnecessary to consider the issue of damages.

For the reasons stated, the judgment of the Twenty-Fourth Judicial District Court, Parish of Jefferson is reversed and judgment is rendered dismissing plaintiffs’ suits at their costs.

Reversed and rendered.

      . The records to which he refers is, of course, in the name of “Lonnie Jenkins,” the name used by Alice Shepeard when she was on the payroll at the Steak ICnife Restaurant.

      . No pictorial evidence or written itemization of the location of the damage (if any) to the Murray automobile was introduced into evidence.


author: SCHOTT, Judge.

text:
    Mrs. Ruby H. LEFTWICH v. Raymond T. MOLONY and Insurance Company of North America.
    No. 7049.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 11, 1975.
    Rehearing Denied Dec. 9, 1975.

      Gerald J. Leydecker, New Orleans, for plaintiff-appellant.
    Robert J. Young, Jr., Michael K. Fitzpatrick, Edward L. Levert, Jr., New Orleans, for defendants-appellees.
    Before REDMANN, GULOTTA and SCHOTT, JJ.
   SCHOTT, Judge.

Plaintiff has appealed from a dismissal of her suit for damages sustained when her automobile was struck from the rear on the Greater New Orleans Mississippi River Bridge on September 17, 1971, by an automobile owned and operated by defendant Molony. Shortly after she filed her original petition plaintiff dismissed her suit against Insurance Company of North America and made American Cyanamid Company a defendant along with Molony.

Just before the accident plaintiff was driving her Toyota automobile toward New Orleans in heavy traffic. When traffic ahead came to a stop she stopped and her car was then struck by defendant’s Ford automobile with the result that her car was propelled into the one in front of her’s. Molony denies that he committed any act of negligence, claiming that the accident was caused by an unidentified motorist whose automobile struck his in the rear. The trial judge found that the accident was caused by the negligence of the driver of a “phantom vehicle” in striking the rear of defendant’s automobile “which in turn diverted [Molony’s] attention just long enough to cause the accident.”

For our purposes, we accept the finding that defendant’s automobile was struck by a phantom vehicle with the issue being whether defendant was thereby excused as a matter of law from permitting his automobile to strike that of plaintiff’s. We are not concerned here with a case where a following automobile is propelled into a forward automobile by the force of a blow from a third automobile, but rather where the defendants maintain that the collision was sufficient to excuse defendant from maintaining control of his automobile after he was struck.

The principal evidence on the point comes from the testimony of Molony himself, who said that prior to the accident he was moving at 10 or 15 miles an hour in heavily congested traffic from 10 to 15 feet behind plaintiff’s automobile, whereupon the following occurred:

“Well, I got struck, and I turned to my right, because my son was in the right front seat. My first impulse was to grab him and hold him. I believe I hit my brakes, but by that time, I hit Mrs. Left-wich’s car.
“Q. So your testimony is: That at no time prior to your striking Mrs. Leftwich, you applied your brakes?
“A. To the best of my knowledge, yes.”
^ ifi #
“Q. Approximately what kind of impact, would you describe, did the car behind you make with your automobile ?
“A. Oh, I think, and it has been a year and a half ago, that it was a bump or shove. I hestitate to call it a hard impact or anything like that because it really — but it was enough to startle me, I felt the bump or thump.”
ifc * ‡ ‡ #
“Q. I think you testified it was a light impact. Did it cause your vehicle to go any faster than it was prior to the impact?
“A. I can’t truthfully answer that. I did not accelerate; I know that, and I don’t know whether we picked up any speed or not.”

Molony testified that the aluminum frame around his license plate was bent or twisted. Photographs of his automobile show very slight damage above the rear bumper and he testified that no repair work was done to his automobile as a result of the accident.

The trial judge, in his reasons stated that he “was impressed with the testimony of Mr. Molony and his 14-year old son, who was a passenger in the vehicle at the time of the accident.” The boy testified that he felt the bump in the rear but couldn’t categorize it as heavy or light. He said the impact pushed their car forward whereupon his father turned around to look behind him and simultaneously put his arm around the boy.

The occurrence of this rearend collision creates a presumption of negligence on the part of Molony and he bears the burden of exculpating himself from negligence. Greco v. Justen, 280 So.2d 610 (La.App. 4th Cir. 1973). Defendant admitted that the impact on the rear of his automobile was slight but takes the position that it was sufficient to justify his loss of control of his own automobile to the detriment of plaintiff. He does not show that his physical control of the vehicle was interfered with by the impact to his rear but only his mental control, i. e., his attention to his own driving.

The proper disposition of this case requires an examination of LSA-R.S. 32:81, subd. A. in the light of the principles discussed in Pierre v. Allstate Insurance Company, 257 La. 471, 242 So.2d 821.

The pertinent statute provides as follows :

“A. The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.”

In the Pierre case the Supreme Court employed the formula of cause-in-fact, duty-risk, and negligence to determine liability. Under this approach the first question is whether the distance Molony maintained between his automobile and plaintiff’s was reasonable considering his own speed and traffic on the highway. Traffic was heavily congested and the probability continued that the flow of traffic might come to a halt. There was also the distinct possibility that Molony might become distracted from whatever cause. Because traffic ahead might come to a halt while Molony was momentarily distracted, he was obliged to maintain a sufficient distance from plaintiff’s automobile to compensate for these conditions. His failure to do so constituted a cause-in-fact of plaintiff’s damages.

The quoted statute was designed to require the motorist to make an assessment of the conditions and circumstances and to maintain a distance behind the vehicle ahead which is reasonable. Defendant’s maintenance of ten to fifteen feet under these circumstances while he proceeded at ten to fifteen miles per hour was unreasonable and hence a violation of the duty imposed by the statute.

Having found causation in fact and a violation of a duty under law, our next inquiry is whether plaintiff suffered damage “because [she] was subjected by this act of [defendant] to a risk sought to be avoided by imposition of that duty.” Pierre v. Allstate Insurance Company, supra, at 830.

Doubtless the statute is designed primarily to guard against a lead vehicle’s being struck from behind where the distance between was insufficient for the following motorist to stop from purely a physical point of view, i. e., with due consideration for reaction time and stopping distance. But surely the statute is also designed to protect against a failure to stop by the following motorist because he was momentarily distracted and failed to see traffic stopping ahead.

As in Pierre we are confronted with two causes in fact and two breaches of duty, i. e., defendant’s and the phantom vehicle driver’s, and it may be that there was a far greater degree of risk created by the breach of the phantom’s duty but it was said in Pierre that “[n]egligence is determined not by the grade or degree of risk created by breach of duty, but by whether in fact there was a risk or hazard.”

Finally Pierre furnished this formula to resolve the issue of responsibility when there is more than one cause in fact:

“. ,. . (1) a determination of the exact risk or risks anticipated by imposition of the legal duty which has been breached and (2) the legal or policy considerations which grant excuses from certain consequences which follow an act of negligence. This requires, under the facts and the law of each case and the attendant exigencies, a jurisprudential determination which will implement and make effective our broad codal provisions concerning those who should respond in damages for their faults.”

In the implementation of this formula we have plaintiff’s testimony that he was moving at ten to fifteen miles per hour, he was struck from behind by the phantom and he turned his eyes away from traffic ahead. During this interlude plaintiff stopped and by the time defendant redirected his attention ahead it was too late for him to stop his car short of striking plaintiff’s. Surely this was one of the risks anticipated by the imposition of the duty on defendant to maintain a reasonable distance behind plaintiff. Finally, policy considerations militate against excusing defendant under the circumstances. While defendant’s dereliction was slight when compared to the phantom’s, it was quite serious when compared to plaintiff’s conduct which was wholly without fault and entirely responsive to the demands of the situation around her.

Plaintiff’s automobile had been purchased less than two weeks before the accident for $1996.85. The repair bill was $1061.50. Claiming depreciation of the automobile, she showed that on purchasing a new automobile on October 6 she was allowed only $450 for the wrecked automobile in trade. Justice requires that she recover the full value of her automobile which would be its original value less the $450 she received in trade for it and less the value of her use of the automobile for two weeks, which we set at $46.85 or a net recovery to her of $1500.

Plaintiff testified that her neck and buttocks were hurting and that she went to the Ochsner Foundation Emergency Room for examination and treatment. She testified that her neck continued to hurt for three weeks and in November because of stomach pains she consulted her physician. She was then hospitalized for nine days and within a month thereafter her stomach problems were resolved. Her physician testified that she had a condition called pylorospasm and a kind of irritable bowel. While he did not feel that these conditions were caused by the accident he thought that the accident played some role in them. He explained that she had some similar problems a few months before the accident, they had been resolved but they flared up again after the accident. Thereafter, they were satisfactorily treated and eventually were brought under control. Thus, she is entitled to recover $1500 for the mild cervical injury and aggravation of her stomach problems with attendant nervousness, nausea and pain. She is likewise entitled to recover $744 for the Ochsner Foundation Hospital bill, $282.25 for the Ochsner Clinic bill, $20 for the emergency room treatment on September 17, and $41.50 for Ochsner Clinic on September 17.

Accordingly, the judgment appealed from is reversed and set aside. It is ordered, adjudged and decreed that there is judgment in favor of plaintiff, Mrs. Ruby H. Leftwich, and against defendants, Raymond T. Molony and American Cyanamid Corporation, in the full and true sum of $4087.75 with legal interest from date of judicial demand and until paid, and for all costs of these proceedings, including the cost of this appeal.

Reversed and rendered.

      . See also dissent of Justice Barham in Welch v. Thomas, 262 La. 1132, 1137, 1143, 266 So.2d 434, 436, 438.

      . We are cognizant of the difficulty for a motorist to maintain a reasonable distance from the vehicle ahead in heavy traffic on the Mississippi Bridge but his failure to do so subjects him to a risk for which he must be accountable.


author: GULOTTA, Judge. REDMANN, Judge

text:
    V-8 TAXI CAB SERVICE, INC. v. Pearl Hayes, wife of and Otha HAYES.
    No. 7044.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 11, 1975.
    Rehearing Denied Dec. 9, 1975.

      Frank S. Bruno, New Orleans, for plaintiff-appellant.
    Jesse S. Guillot, New Orleans, for defendant-appellee.
    Before REDMANN, GULOTTA and SCHOTT, JJ.
   GULOTTA, Judge.

This is an appeal from a dismissal of a suit by the owner of a taxi cab franchise against two operators of taxi cabs, husband and wife, for the collection of accumulated weekly fees for the use of a cab emblem and other services provided by the franchise owner in connection with defendants’ operation of taxi cabs.

Plaintiff claims defendants used the cab emblem and other services provided at an agreed weekly fee of $7.25 from May 27, 1970 through January 30, 1972, and at an increased agreed weekly fee of $8.25 from January 30, 1972 through June 3, 1973.

It is defendants’ position that they had not agreed to pay for the services claimed. Defendants claim that although they used plaintiff’s cab emblem, they did not use plaintiff’s services. Otha Hayes maintained he used the cab emblem during the time that he originally owned the franchise and continued to do so after he sold the franchise to the plaintiff corporation. The trial judge concluded no agreement existed between the parties for payment of the weekly fees.

It is clear that no express agreement existed between the parties. However, plaintiff’s claim is based on an implied agreement by defendants to pay the fee resulting from their use of the emblem and services for which other cab drivers agreed to pay the weekly fees. We do not agree.

LSA-C.C. art. 1811 states:

“The proposition as well as the assent to a contract may be express or implied:
“Express when evidenced by words, either written or spoken;
“Implied, when it is manifested by actions, even by silence or by inaction, in cases in which they can from circumstances be supposed to mean, or by legal presumption are directed to be considered as evidence of an assent.”

In addition, LSA-C.C. art. 1816 in pertinent part states:

“Actions without words, either written or spoken, are presumptive evidence of a contract, when they are done under circumstances that naturally imply a consent to such contract. * * * ”

Silence and inaction are also, under some circumstances, the means of showing an assent that creates an obligation. LSA-C.C. art. 1817.

According to the Codal provisions, implied consent results from silence, action or inaction. We cannot conclude that Johnson, by silence or inaction, manifested his assent to the Hayeses’ use of the V-8 emblem. In Hayes v. Johnson, 299 So.2d 566 (La.App., 4th Cir. 1974), the basic question presented for review was the ownership of the franchise granted by the City of New Orleans to operate a taxi cab service, along with the trade name, “V-8 Taxi Cab Service.” This court in the earlier Hayes case pointed out that protracted litigation resulted from the claims of ownership of the franchise. In that case, we said:

“ * * * There have been a number of law suits brought over the last several years litigating certain ancillary aspects of this basic question, and finally, the matter is before us on the merits.”

Because of the extended litigation in which Hayes asserted his claim to ownership of the franchise, we cannot conclude that assent was manifested through silence, action or inaction.

Plaintiff’s cause of action more properly comes within the concept of quasi, rather than implied in fact, contract. An implied in fact contract is one which rests upon consent implied from facts and circumstances showing a mutual intention to contract. A contract implied in law (quasi-contract) is without manifestation of consent, and is forced upon the parties by law.

The general concept of quasi-contractual obligations is based upon the principle that where there exists an unjust enrichment of one at the expense or impoverishment of another, the value of that enrichment or else, in some cases, the amount of the impoverishment, must be restituted. Planiol, Civil Law Treatise (La. Law Inst, trans.), II, § 812. In Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967), the Louisiana Supreme Court set out the prerequisites for recovery in unjust enrichment. Those prerequisites are: (1) There must be an enrichment; (2) There must be an impoverishment; (3) There must be a connection between the enrichment and the impoverishment; (4) There must be an absence of “justification” or “cause” for the enrichment and impoverishment; and, (5) The action will only be allowed when there exists no other remedy at law.

Applying Minyard to the instant case, we conclude the first requirement, i. e., enrichment, is met. Defendants admitted they retained the V-8 emblem and telephone number on their cabs from May 27, 1970 to the present. Although we find no evidence in the record of a specific amount of monetary gain derived from use of the V-8 emblem, Otha and Pearl Hayes testified that the City of New Orleans requires a taxi cab driver to operate on a taxi line. Without the cab emblem, they would not be permitted to drive. Defendants were enriched by their use of the emblem.

The second requirement, i. e., impoverishment, is broadly defined in French law as any diminution of the plaintiff’s assets or the prevention of an opportunity for gain. See 43 Tul.L.Rev. 263, 285. This requirement is met in the instant case. Otha Hayes, Annie Baker (former secretary-treasurer of V-8 Taxi Cab Corporation), Helen McGee (former operater of a V-8 cab) and Margaret B. Smith (a prior owner of V-8 Taxi Cab Service, Inc.) testified that the cost for the use of the V-8 emblem, alone, was $18.00 per year. The amount of this annual charge is not disputed by plaintiff. V-8 Taxi Cab Service, Inc., was deprived of the $18.00 annual fee.

A relationship exists between enrichment and impoverishment. Defendants were enriched to the extent of the annual charge for the use of the emblem, resulting in plaintiff being deprived of receipt of the annual fee. The third requirement of Minyard has also been met.

No cause or justification for enrichment exists because the parties did not enter into any express or implied in fact agreement. See Edmonston v. A-Second Mortgage Co. of Slidell, Inc., 289 So.2d 116 (La.1974).

Finally, no remedy at law, m the absence of an express or implied contract, can serve as a vehicle for plaintiff’s recovery. Requirements four and five have been met.

Accordingly, we conclude defendants were unjustly enriched and plaintiff is entitled to recovery.

We now turn to the question of quantum. The record does not support plaintiff’s claim that defendants utilized any of the services for which the weekly fees were charged. Defendants’ denials of the use of these services are virtually un-contradicted. Accordingly, V-8 is not entitled to payment of any weekly fees.

Defendants are liable to plaintiff in the sum of $18.00 per year for each year that each used the V-8 emblem, i. e., from May, 1970 until the date of trial. Plaintiff is entitled to recover from each defendant the sum of $18.00 per year from May, 1970 to May, 1975. We compute this amount to be $90.00 per cab or a total of $180.00.

Accordingly, the judgment dismissing plaintiff’s suit is reversed. Judgment is now rendered in favor of V-8 Taxi Cab Service, Inc., and against defendant, Pearl Hayes, in the sum of $90.00 and against defendant, Otha Hayes, in the sum of $90.-00, with legal interest thereon on both judgments from date of judicial demand until paid. Costs to be paid by defendants.

Reversed and rendered.

REDMANN, Judge

(concurring).

Defendants knew from their long connection with the taxi “line” that the charge for use of the emblem alone was $18 a year, at which price its use was apparently offered to anyone by plaintiff. By their act of using the emblem, defendants impliedly consented to pay that charge.

      . Office telephone number, cab office and cab stand.

      . The Supreme Court relied on LSA-C.C. arts. 2292, 2293, 2294, 1965 and 21, the quasi-contract and equity articles.

      . For a discussion of enrichment, see 43 Tul. L.Rev. 263, 280.

      . Because of the absence of any evidence in the record indicating that the $18.00 charge was computed on a calendar year, we compute damages on an actual year basis.


author: LEMMON, Judge.

text:
    SERVI-CLEAN INDUSTRIES, INC. v. TONTI MANAGEMENT CORPORATION.
    No. 7036.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 11, 1975.
    Rehearing Denied Dec. 9, 1975.
    Writ Granted Jan. 30, 1976.

      Joseph W. Nelkin, New Orleans, for plainti f f-appellant.
    Walter E. Kollin, Metairie, for defendant-appellee.
    Before SAMUEL, LEMMON and BOUTALL, JJ.
   LEMMON, Judge.

In this action, initiated under the provisions of R.S. 9:2961 (the Bulk Sales Law), Servi-Clean Industries, Inc. originally sought to collect a debt (owed to Servi-Clean by McCarthy Construction Company, Inc.) from Tonti Management Corporation, to whom McCarthy had transferred certain fixtures, furniture and equipment. About a year after filing the original petition, Servi-Clean filed a petition of intervention, asserting a class action as representative of all of McCarthy’s unpaid creditors. Tonti •then filed an exception of prescription to the petition of intervention.

After a hearing on the exception (and on a motion for summary judgment filed by Servi-Clean), the trial court (1) denied Servi-Clean’s motion for summary judgment, (2) maintained Tonti’s exception of prescription and dismissed Servi-Clean’s petition of intervention asserting the class action, and (3) noting on its own motion that Servi-Clean’s original petition failed to state a cause of action, dismissed Servi-Clean’s entire suit. On Servi-Clean’s appeal this court affirmed the judgment insofar as it maintained the exception of prescription and dismissed the petition of intervention asserting the class action. This court, however, reversed the judgment insofar as it maintained the exception of no cause of action and dismissed the original petition, and rendered a personal judgment against Tonti, granting Servi-Clean full recovery of its claim as an individual creditor (although only a judgment maintaining an exception of no cause of action was before this court for review and issue had never been joined as to the merits of the case).

Both parties applied for rehearing, pointing out that Tonti’s liability to the creditors of the transferor under R.S. 9:2963 was not personal, but rather was “as receiver for the fair value of all the property so transferred”. Servi-Clean’s application for rehearing requested a remand “to the end that all of these creditors [listed in McCarthy’s bankruptcy schedule] may be able to prove up their claims”. Tonti’s application for rehearing also asked for a remand (as an alternative) “for further proceedings on the claims of appellants, Servi-Clean Industries, Inc. and Pinkerton’s, Inc.”

This court granted a limited rehearing for consideration of “(t)he extent of liability of Tonti Management Corporation for the debts of the transferor”, denying rehearing in all other respects. Our judgment on limited rehearing, while stating that “according to the provisions of LSA-R.S. 9:2963 quoted above, Tonti Management Corporation is liable to all the creditors,-and to appellants herein”, ordered the case remanded for the purpose of having the trial court "make the necessary finding of facts and therefrom determine the amount to which each appellant is entitled in judgment.” See 294 So.2d 580.

Servi-Clean did not apply to the Supreme Court for certiorari. Apparently misunderstanding our decree and believing this court on rehearing had reversed the trial court judgment in its entirety, Servi-Clean immediately filed in the trial court a rule to be designated as class representative of McCarthy’s creditors so that Ser-vi-Clean could assert the rights of all members of the class.

The trial court dismissed the rule, observing that this court had affirmed the earlier dismissal of the petition of intervention by which Servi-Clean had attempted to assert the same class action. Servi-Clean immediately appealed from the dismissal of its rule, and that appeal is now before us.

The sole issue in this appeal is whether our judgments in the previous appeal (on original hearing and on rehearing) reversed the judgment of the trial court in its entirety, or whether our judgments affirmed the dismissal of the petition of intervention, while reversing only that part of the trial court judgment pertinent to the original demand and remanding for a determination solely of that demand. The decision, as to whether Servi-Clean’s right (if any) to represent all or most of McCarthy’s creditors in this action has prescribed, was clearly pronounced on original hearing. The decision on that issue was not affected by the limited grant of rehearing, and the application f„. rehearing as to that issue was denied. Neither the trial court nor this court (if we were inclined to do so) has the power and authority to now reconsider and modify or change the decision as to that issue. Whether or not the Supreme Court can do so, in view of Servi-Clean’s failure to apply for certio-rari when part of a trial court judgment was affirmed and part was reversed and remanded, is not for us to decide.

The judgment dismissing the rule is affirmed.

Affirmed.

      . Citing R.S. 9:2963’s language that a transferee “shall at the suit of any creditor, be held liable to all creditors of the transferor”, Servi-Clean contends that its timely suit rendered Tonti liable to all of McCarthy’s creditors and interrupted prescription as to all claims. Thus, Servi-Clean argued that the petition of intervention merely furnished additional information, but was not absolutely essential to asserting the claims of the other creditors.

      . Pinkerton’s suit based on the Bulk Sales Act had been consolidated on appeal with this suit. Tonti had defended both suits on the basis that it had in fact acted as a receiver, using most of the cash portion of the sales price to pay McCarthy’s privileged debts and depositing the balance with the Bankruptcy Court for the benefit of ordinary creditors.

      . Pinkerton’s suit was also remanded “for the restricted purpose of determining the amount of the judgment to which appellant is entitled.” Pinkerton’s, Inc. v. Tonti Management Corp., 294 So.2d 585 (La.App.4th Cir. 1974).

      . Servi-Clean contemporaneously filed an application to this court for supervisory writs, which was denied for the following reasons:
      “The judgment originally rendered was a personal judgment against Tonti in favor of Servi-Clean and Pinkerton. Therein the exception of prescription was sustained to the petition of intervention in the class action. The class action was dismissed.
      “The rehearing was granted solely for the purpose of considering the judgment rendered insofar as it was a personal judgment against Tonti. All other questions were adjudicated in the original opinion and were not disturbed on rehearing. The remand was for the sole purpose of considering and disposing of the claims of Servi-Clean and Pinkerton. Accordingly the application is denied.”
      Servi-Clean then applied to the Supreme Court for certiorari. The application was denied, “reserving the right, if any, to review on appeal.”

      . This court did not decide in the previous appeal (and indeed could not decide, since the judgment appealed from simply maintained an exception of no cause of action) whether or not Servi-Clean’s timely suit interrupted prescription as to all claims. This court did decide that the intervention asserting a class action (if necessary to interrupt prescription as to the other claims) came too late.


text:
    T. Scott McVEA et al. v. The BOARD OF DIRECTORS OF the FEDERAL INTERMEDIATE CREDIT BANK.
    No. 7033.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 11, 1975.
    Rehearing Denied Dec. 9, 1975.
    Writ Refused Jan. 30, 1976.

      Kolb & Rooks, Rhett R. Ryland and L. F. Cooper, Jr., Baton Rouge, for plaintiffs-appellants.
    Deutsch, Kerrigan & Stiles, Ralph L. Kaskell, Jr., R. Emmett Kerrigan and Robert G. Stassi, New Orleans, for defendant-appellee.
    Before REDMANN, GULOTTA and SCHOTT, JJ.
   SCHOTT, Judge.

Plaintiffs are former members of the Board of Directors of Baton Rouge Production Credit Association (hereinafter sometimes referred to as the Association). Defendant is the Federal Intermediate Credit Bank of New Orleans.

Federal Intermediate Credit Banks and Production Credit Associations are components of the Farm Credit System established by the Farm Credit Act of 1971, 12 U.S.C.A. § 2001 et seq. In the hierarchy of the system each Intermediate Credit Bank operates under the supervision of the Farm Credit Administration, and it may “Delegate to the production credit associations such functions vested in or delegated to the intermediate credit bank as it may determine.” § 2072. Each Production Credit Association is subject to the supervision of the Intermediate Credit Bank for the district. § 2093. The Baton Rouge Association operates in defendant’s district under bylaws approved by the Farm Credit Administration, which bylaws includes the following provisions:

360 Removal

“A director may be removed from the Board at any time ... by the board of directors of the bank for good cause; provided, however, that the director to be removed shall be given such amount of time to present his views on the removal as may be determined by the board.”

430 Removal

“The chairman, vice-chairman, and chief executive officer, may be. removed as officers at any time by a majority vote of the higher membership of the board of directors of the association, or by the bank.”

Plaintiffs have appealed from a dismissal of their suit to compel defendant to reinstate them as directors of the Association and to restrain defendant permanently from removing plaintiffs from office. The jurisdiction of the State Courts over this dispute is based upon 12 U.S.C.A. § 2258.

Defendant had resolved pursuant to Association’s bylaw 430 to remove Gerald Phares from office as the Association’s president. When plaintiffs were informed of this decision they complied by accepting a resignation from Phares on August 22, 1974. However, on September 18 plaintiffs reinstated Phares to his office whereupon he was removed by defendant. On October 10 defendant served notice on plaintiffs, charging them among- other things with failure to allow defendant to supervise them in the exercise of the functions delegated to them, notifying them that they might present written response to the charges by October 18, and directing them to appear at a meeting on October 25 to present any further views they might have on said charges. Plaintiffs were further advised that after said responses and views were received by defendant a determination would be made as to whether all or any of the plaintiffs should be removed from office.

In a written response to this notice plaintiffs denied that they had failed to allow defendant to supervise them and accused defendant of “unreasonable interference” particularly with regard to the removal of Phares from the presidency of the Association. They characterized the conduct of defendant’s president regarding Phares’ removal as “unwarranted interference” with their authority.

On October 25 defendant’s board, after meeting with and hearing from plaintiffs, removed them from office as directors of the Association.

In this Court plaintiffs contend that, 1) they were not removed from office for “good cause” as required by bylaw 260, 2) they were not given “fair hearing” before their removal, and 3) they were prejudiced by a number of rulings on objections during the trial by the trial judge.

1. It is clear from the statutory grant of supervisory power to defendant and the provisions of the bylaws with regard to the removal of Phares as president of the Association that plaintiffs’ action in reinstating Phares after agreeing to accept his resignation was insubordination constituting “good cause” for plaintiffs’ removal.

2. Bylaw 260 requires only that each plaintiff had to “be given such amount of time to present his views on the removal as may be determined by the board.” Plaintiffs were given and did exercise the right to present their views in writing and orally at a meeting with defendant’s board. We do not find any support in the statutes or bylaws for plaintiffs’ contention that they were entitled to such rights as those of confrontation or sworn testimony or cross examination by witnesses, representation by counsel, or transcription of proceedings at a pre-re-moval hearing.

3. Finally, the eighteen evidentia-ry rulings complained of are isolated from a voluminous transcript of a three day trial. No good purpose will be served here by discussing each of these rulings in detail. We agree with the trial judge that the questions objected to called for irrelevant or repetitious testimony having no probative value on the issue of whether defendant complied with the statutes and bylaws in removing plaintiffs from office.

Accordingly, the judgment appealed from is affirmed at plaintiffs’ cost.

Affirmed.

      . The title of the case suggests that the individual members of the Board of Directors of the Bank were defendants, but the bank itself was the only actual defendant in the case.

      . Plaintiffs have never alleged or asserted that the statutes or bylaws deprived them of procedural due process in violation of the Constitution of the United States.


text:
    Joe L. SCOTT and Joseph Lawrence Johnson v. Stanley ROBINSON and Manchester Insurance & Indemnity Company.
    No. 7029.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 11, 1975.
    Rehearing Denied Dec. 9, 1975.
    Lambert, Nowalsky & Lambert, John D. Lambert, Jr. and Lawrence J. Fritz, New Orleans, for third-party plaintiffs-defendants-appellants.
    Mora & Ardoyno, Robert O. Homes, Jr., Metairie and August J. Bubert, New Orleans, for plaintiffs-appellees.
    Before REDMANN, GULOTTA and SCHOTT, JJ.
   SCHOTT, Judge.

Defendants have appealed from a judgment in favor of plaintiffs for personal injuries sustained by them in an accident which occurred on March 3, 1973, at Napoleon and South Claiborne Avenues in the City of New Orleans.

Scott was the driver of and Johnson a passenger in a truck owned by their employer, and they were proceeding westerly on South Claiborne Avenue in the left lane adjacent to the neutral ground. As they were about to cross the south-bound lane of Napoleon Avenue defendant Robinson made a left turn from the middle lane of South Claiborne into the south-bound lane of Napoleon Avenue, directly in the path of plaintiff, whereupon a collision occurred.

Defendants do not deny that Robinson was negligent but they charge Scott with contributory negligence, consisting of his indicating that he was going to turn left into Napoleon by means of his turn indicator signal light. Suffice it to say that Scott and Johnson both testified that they were going straight ahead, and there is no basis to disturb the trial court’s determination that Scott was not contributorily negligent.

Defendants take serious issue with the trial court’s awards of $2,000 to Scott and $1,500 to Johnson for their pain and suffering. Their physician Dr. Sam Maca-luso testified that he treated Scott from March 12 until July 3, and Johnson from March 12 until June 22. In the case of Scott he found tenderness, restriction of movement and spasm in the low back on his first examination and this persisted until June 22. In the case of Johnson he found tenderness, restriction of movement and spasm in both the back and neck which persisted until June 22. Both were given diathermy and medication. Defendants make much over evidence that Johnson was in another accident on May 1 and received treatment from another physician for his back between May 4 and May 12, that he did not disclose this to Dr. Macalu-so even though he saw both doctors on the same day on two occasions, and that the records of the employer do not show that plaintiffs missed any work even though they were receiving these diathermy treatments and making these office visits to Dr. Macaluso during working hours.

On the other hand, plaintiffs’ immediate supervisor did verify that the plaintiffs submitted a slip from the doctor recommending that they be put on light duty and he recalls their going to the doctor in the period they were receiving treatments.

Defendants are quarreling primarily with the trial judge’s evaluation of the credibility of the witnesses and the exercise of his discretion in his award of general damages. See Anderson v. Welding and Testing Laboratory, Inc., 304 So.2d 351 (La.1974). Defendants have provided no basis for us to substitute our judgment for that of the trial judge.

Accordingly, the judgment is affirmed at defendants’ costs.

Affirmed.


author: BOURG, Judge.

text:
    Mrs. Camille Silvera MOLERO, Testamentary Executrix of the Succession of Manuel Molero v. Perry R. BASS et al.
    No. 6422.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 11, 1975.
    Rehearing Denied Dec. 9, 1975.
    Writ Refused Jan. 30, 1976.

      Wilkinson & Wilkinson, New Orleans (Hugh M. Wilkinson, Jr., and James Wilkinson, III), New Orleans, for plaintiff-appellant.
    Provosty & Sadler, Alexandria (Richard B. Sadler, Jr., and William H. deLaunay, Jr.), Alexandria, for defendants-appellees.
    Before STOULIG, MORIAL and BOURG, JJ.
   BOURG, Judge.

This case involves an appeal from the sustaining of an exception of no cause or right of action on the basis of laches and the dismissing of plaintiff’s suit. The facts are long and complicated, however, a brief statement of them is as follows:

In 1945 Manuel Molero and Sid Richardson entered into a contract in which Richardson was to assign overriding mineral royalties to Molero on any leases Richardson obtained in a certain area in Louisiana. This contract was performed until 1949, at which time Richardson formed a partnership with Perry Bass and placed his assets, including the mineral leases in Louisiana, into the partnership. Shortly after the formation of the partnership the royalty payments to Molero were stopped. In 1950 Molero sent a demand letter to Sid Richardson and Richardson and Bass, asking for his royalty assignments under the contract. No further action was taken by Richardson or the partnership and no further action was taken by Manuel Molero.

On September 30, 1959, Richardson died, his succession was opened in Texas and ancillary proceedings were opened in Louisiana. His executors qualified here and for a period of two years after the opening of the succession in Louisiana they commenced to sell all of Richardson’s mineral interests in this state.

In February of 1962 Molero died and shortly thereafter Richardson’s succession was closed and Molero’s succession opened. Plaintiff, Camille Silvera Molero, qualified as executrix of the Succession of Manuel Molero and on May 27, 1964, filed this suit for the overriding royalty assignments against the following defendants: Perry Bass, Howell Smith and John Connally, individually and as executors of the Estate of S. W. Richardson, the S. W. Richardson Foundation, Bass Brothers Enterprises, Inc., Richardson Oils, Inc., and The Prudential Insurance Company of America. These defendants filed various exceptions to the plaintiff’s suit, some of which were sustained. See Molero v. Bass, 190 So.2d 141 (La.App. 4th Cir. 1966). Following the decision of this Court the plaintiff amended her petition and the defendants filed more exceptions. No action in this case was prosecuted from March 28, 1967 until February 25, 1972.

On February 25, 1972, a hearing was set for the peremptory exceptions of prescription and no cause or right of action filed on behalf of defendants Perry Bass, Bass Brothers Enterprises, Inc., and Richardson Oils, Inc. The hearing was held on September 20, 1973, and judgment was rendered on March 4, 1974. In that judgment the trial court sustained these defendants’ exceptions of no cause or right of action on the basis of the claim being barred by laches. As to the exception of prescription the trial court withheld any decision on that issue.

From the above judgment plaintiff has appealed.

The issue before this Court is whether the plea of laches was properly sustained. Laches is an equitable doctrine and thus within the sound discretion'of the court. Its purpose is to bar prosecution of stale and antiquated demands which would cause injustice if pursued. Labarre v. Rateau, 210 La. 34, 26 So.2d 279 (1946); Shirey v. Campbell, 151 So.2d 557 (La.App. 2nd Cir. 1963); Triangle Oil Co. v. City of New Orleans, 5 So.2d 558 (Orl. La.App.1942); 30A C.J.S. Equity § 112 et seq.

It is difficult to state the elements of laches or to state a “test” for the application of laches. In general, since the applicability of laches is within the discretion of the court, each case rests upon its own particular set of circumstances. It is possible to say that laches has no application where there has been no delay in asserting the right. However, delay of time alone will not suffice, there must be other circumstances. Prime among the other circumstances most often mentioned in the jurisprudence are a prejudicial change of conditions occurring during the delay and reliance by the defendant upon the inaction of the plaintiff. Munson v. Martin, 249 La. 925, 192 So.2d 126 (S.Ct.1966); Labarre v. Rateau, supra; Shirey v. Campbell, supra; 30A C.J.S. Equity §§ 115-119.

The present case arises from a hearing on an exception of no cause or right of action. Although evidence could have properly been introduced to support the plea of laches, none was adduced. The record is devoid of any testimony or documentary evidence from that hearing. Thus, it appears that the trial court made its decision solely on the basis of the pleadings and the oral arguments. We find this to be error.

In his Reasons for Judgment the trial court makes it plain that the suit was dismissed exclusively on the grounds of lapse of time. As mentioned above, this finding, without any other finding of prejudice, waiver, reliance or other change of circumstance, is insufficient to sustain a plea of laches. Although a plea of prescription was before the trial court, the trial court specifically declined to rule on that plea.

The court in Labarre stated, “The laches doctrine addresses itself exclusively to the evidentiary effect of delay.” (Emphasis supplied.) The defendants failed to establish their plea of laches, since they failed to show anything other than the occurrence of a lapse of time. The plaintiff also failed to introduce any evidence to rebut the plea of laches. Due to the total lack of evidence on issues other than delay, we reverse the ruling of the trial court and remand this case for an evidentiary hearing, either on the question of laches per se, or on the merits of the entire case.

We note that Labarre seems to indicate that a trial on the merits is required to sustain a plea of laches. And further we note that the case relied on by the trial court and the defendants was a trial on the merits. Lambert v. Succession of DeHass, 271 So.2d 910 (La.App. 1st Cir. 1972). We hesitate to impose that requirement, however, the facts as alleged in the petition seem to indicate that a trial on the merits may be needed to resolve the laches issue.

For the above reasons the judgment of the trial court is reversed and the case is remanded to the trial court for further proceedings. All costs to await final disposition.

Reversed and remanded.


author: WATSON, Judge.

text:
    Floyd WILLIAMS et al., Plaintiffs-Appellants, v. LOUISIANA FARM BUREAU INSURANCE COMPANY et al., Defendants-Appellees.
    No. 5185.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 1975.
    Edward D. Rubin, Lafayette, for plaintiffs-appellants.
    Caffery, Duhe & Davis, by J. Louis Gib-bens, New Iberia, for defendants-appellees.
    Before MILLER, WATSON and CU-TRER, JJ.
   WATSON, Judge.

This suit involves claims for damages arising from a traffic accident. The plaintiffs are Floyd Williams, and his wife, Edolia M. Williams, and the defendants are Jessie J. Labit and his liability insurer, Louisiana Farm Bureau Insurance Company. The accident occurred in Gueydan, Louisiana at 12:00 noon on December 11, 1973, when a 1973 Buick automobile driven by Mrs. Williams was struck at the intersection of Main and Ninth Streets by a 1959 International truck being driven by Labit. The intersection is controlled by an electric traffic light and the decisive factual issue is who ran the red light.

This question was resolved in favor of defendants by the trial court and the issue on appeal is whether there is manifest error.

We have reviewed the testimony of the witnesses, including Mrs. Williams and her witnesses, Andre Wilson and Jerry Wilson, and the defendant, Labit, and his witnesses, Percy Primeaux and Jerry John Richard. The testimony is directly in conflict and the trial court, who saw and heard the witnesses, decided the matter adversely to Mrs. Williams. The trial court, apparently, was not at all impressed with the testimony of the brothers Wilson who, although they testified in favor- of Mrs. Williams, were said by a witness for the defendants not to have been present at the scene of the accident.

Our review of the record reveals ample evidence to support the conclusions of the trial judge that the accident resulted from the negligence of Edolia Williams and that Jessie Labit was free from negligence. Therefore, we find no manifest error and we affirm the judgment. Andrew v. State Farm Mutual Automobile Ins. Co., 316 So.2d 883 (La.App. 3 Cir. 1975); Vaughn v. Earthly, 313 So.2d 347 (La.App. 3 Cir. 1975).

Costs are taxed against the appellants.

Affirmed.


author: SUGG, Justice:

text:
    Robert G. SHARPE, Motor Vehicle Comptroller, State of Mississippi v. STANDARD OIL COMPANY.
    No. 48314.
    Supreme Court of Mississippi.
    Oct. 13, 1975.
    Rehearing Denied Dec. 8, 1975.
    Daniel, Coker, Horton, Bell & Dukes, John B. Clark, Roger C. Clapp, Jackson, for appellant.
    Watkins & Eager, Cox & Dunn, Ltd., Jackson, for appellee.
    Before RODGERS, SUGG and BROOM, jj!
   SUGG, Justice:

This case involves the validity of a tax of ten cents per gallon assessed hy the Motor Vehicle Comptroller under Mississippi Code Annotated section 27-SS-313 (1972) on diesel fuel sold by Standard Oil Company to Mid-State Paving Company for use in the performance of State Highway Commission contracts. The Comptroller’s assessment was reversed by the Chancery Court for the First Judicial District of Hinds County, Mississippi, on the ground that the statute taxes only diesel fuel used in motor vehicles.

The question is whether the tax applies only to diesel fuel used in motor vehicles by a contractor in the performance of state contracts, or whether the tax applies to all diesel fuel used by a contractor in the performance of state contracts regardless of the specific on-the-job uses made of the fuel.

Mid-State is a Mississippi corporation primarily engaged in asphalt paving work on'the highways of the State of Mississippi and its political subdivisions. The asphalt used by Mid-State is produced by mixing and processing various materials in portable asphalt plants usually set up near the construction site. One of the materials is sand which must be dried by the application of heat to extract any moisture. The fuel generally used in the process is diesel fuel which falls within the definition of “other motor fuel” under Mississippi Code Annotated section 27-55-303 (d) (1972). A tax of ten cents per gallon is levied upon the distributor of other motor fuel by the first paragraph of section 27-55-313.

A tax at the rate of ten cents per gallon is hereby levied upon any distributor of other motor fuel for the privilege of engaging in the business of selling or delivering other motor fuel to a retail dealer, user, or any other person for use in propelling motor vehicles on the highways of this state and/or for the privilege of engaging in the business óf selling and delivering other motor fuel to any other person who purchases or uses other motor fuel in performing contracts for construction, reconstruction, maintenance or repairs, where such contracts are entered into with the State of Mississippi, any political subdivision of the State of Mississippi, or any department, agency, or institution of the State of Mississippi or any political subdivision thereof, if the first notice of publication to bidders on such contract has been given after September 1, 1966.

Mid-State was of the opinion that the tax did not apply to diesel fuel used to process asphalt in the performance of its contracts with the Highway Commission. Accordingly, it did not pay Standard the tax on the fuel used in processing asphalt, hut agreed to indemnify Standard for any of the tax ultimately paid by Standard. The Comptroller maintained that section 27-55-313 levied the ten cents per gallon tax on diesel fuel used by a contractor in the performance of state contracts regardless of the specific on-the-job uses of the fuel. He assessed taxes and penalties in the amount of $198,543.26 against Standard for diesel fuel sold by it to Mid-State from January 1, 1970, through March of 1972. This assessment was later confirmed by the Comptroller after a hearing. On appeal to the Chancery Court for the First Judicial District of Hinds County the assessment was reversed, the chancellor holding that the taxing statute taken as a whole evinced a legislative intent to tax only motor fuel used in internal combustion engines.

Mississippi Code Annotated section 27-55-313 (1972) is clear and unambiguous on its face, addressing itself to two classes of users of other motor fuel. The first part of the section is designed to apply to those persons who use other motor fuel in propelling motor vehicles on the highways of the state. The second part is not so limited, being addressed simply to “any other person” purchasing or using other motor fuel in the performance of state contracts. Unlike the terms “retail dealer” and “user” found in the first part of section 27 — 55— 313, “person” is not by definition limited to one who uses other motor fuel only in motor vehicles. As defined in the statute, “use” also contemplates uses other than motor vehicle use, hence the definition:

(e) “Use” means, in addition to its ordinary meaning, the receipt of other motor fuel by any person into the fuel supply tank of a motor vehicle or into a receptacle from which other motor fuel is supplied by any person for his own or other motor vehicles. (Emphasis supplied).

The statute means what it says: All of the other motor fuel purchased or used by a person in the performance of state contracts is subject to the ten cents per gallon tax.

In spite of this language Standard maintains, and the chancellor held, that the section does not contemplate taxing fuel used to heat asphalt to be used in the performance of a state contract because other fuel taxing sections either tax fuel used only in vehicles or exempt fuel used as a processing agent in manufacturing. See Mississippi Code Annotated sections 27-57-315, -327(g) (1972). Reliance is also placed upon two opinions by the Attorney General relative to the tax.

We are not persuaded by the argument for it overlooks the unequivocal language of the statute (27-55-313) and its legislative history. At the hearing before the Comptroller, Mr. Adlia Morgan, Director of Petroleum Taxes for the Motor Vehicle Comptroller, testified that the language dealing with contractors in the current diesel law (section 27-55-313) came about through a 1958 amendment to the gasoline act (section 27-55-1 et seq.). Mr. Morgan said that prior to 1958 many contractors were including in their bids with the Highway Commission the state excise tax on gasoline, and later securing a refund of the tax on the gasoline used for non-highway purposes. The practice was known as “double dipping” because the contractors would recover the tax twice. In an effort to stop this practice, Mr. Morgan testified that he helped draft an amendment to the refund gasoline section designed to prevent contractors from claiming a refund on gasoline used in the performance of a state contract. The amendment made no distinction in the specific job site use of gasoline, but simply provided that:

[N]o refund shall be allowed to any person, firm or corporation who may purchase, sell or use gasoline in performing contracts for construction, reconstruction, maintenance or repair, where such contracts are entered into with the State of Mississippi or with any department, agency or institution of the State of Mississippi, or with any political subdivision of the State of Mississippi, or with any department, agency or institution of such political subdivision. (Mississippi Laws 1958, chapter 180, section 11).

Mr. Morgan further testified that in 1966 the “double dipping” provision in the gas act of 1958 was brought forward into the diesel tax law, the difference being that the gasoline act involved a refund, but the diesel act involved an exemption:

Provided, further, no exemption shall be allowed to any person, firm or corporation who may purchase, sell or use diesel fuel or kerosene in performing contracts for construction, reconstruction, maintenance or repair, where such contracts are entered into with the State of Mississippi or with any department, agency or institution of the State of Mississippi, or with any political subdivision of the State of Mississippi, or with any department, agency br institution of such political subdivision. (Mississippi Laws 1966, chapter 645, section 11).

The effect of the 1966 amendment was to tax diesel fuel when used by a contractor in the performance of a contract with the state or any of its political subdivisions. Section 7 of chapter 54 of the Laws of 1969 (codified at Mississippi Code Annotated section 27-55-313 (1972)) continued taxing diesel fuel so used. Compare Mississippi Laws 1966, chapter 645, section 11, with Mississippi Laws 1969, chapter 54, section 7.

Although it is not necessary to determine the intent of the legislature as to section 27-55-313 because the act is plain and unambiguous, we find that the legislative intent was to coordinate the laws governing gasoline and other motor fuel used by contractors in the performance of state contracts and subject all of that fuel to the ten cents per gallon fuel tax regardless of the specific on-the-job uses.

Standard next contends that we should adopt the construction of the statute as set forth in an opinion of the Attorney General. The March 15, 1971, opinion of the Attorney General simply held that oil used to process asphalt is exempt from the one cent tax of Mississippi Code Annotated section 27-57-315 (1972) because of the “processing agent” exemption of section 27-57-327(g). This opinion was not addressed to the disputed ten cents tax of 27-55-313 nor did it refer to the use of other motor fuel by a contractor performing a state contract. Although the January 16, 1973, opinion by the Attorney General held that the ten cents per gallon tax was not due where fuel was used to process asphalt by a contractor having a state contract, the opinion contains two fatal weaknesses. It leaves out the critical words “to any other person who purchases or uses other motor fuel” found in section 27-55-313, and lifts the “processing agent” exemption from the one cent tax of section 27-57-315 and inserts it into the ten cents tax of section 27-55-313.

Standard’s final contention involves a constitutional challenge. The argument is that to subject diesel fuel to the tax, when used as a heating agent, is discrimination violative of the equal protection clause of the Fourteenth Amendment to the United States Constitution because other heating fuels, notably propane, are not subject to the disputed tax. The tax, it is urged, would increase the cost of diesel fuel to such proportions that Standard’s business of selling diesel fuel for use as a heating agent would be destroyed in the same manner as the business in Riley v. Ayer and Lord Tie Co., 147 Miss. 105, 113 So. 214 (1927). In Riley a privilege tax of twenty-five cents per thousand feet of lumber treated by creosoting plants was held to violate the equal protection clause because the taxpayer’s whole business was destroyed by the tax, other like businesses not being so taxed. Riley is not disposi-tive of the constitutional question before us, for while the entire production of the creosoting business was taxed in that case, only one specific use of one specific product is being taxed in the instant case: The use of diesel fuel by a contractor to heat asphalt to be used in the performance of a state contract.

Subtle distinctions are, of course, not controlling on this constitutional matter. The correct inquiry is whether the classification is related to a legitimate state interest and, if so, whether the means chosen to effectuate' that interest are reasonable. Kahn v. Shevin, 416 U.S. 351, 355, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974); Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 79 S.Ct. 437, 3 L.Ed.2d 480 (1959); Ohio Oil Co. v. Conway, 281 U.S. 146, 50 S.Ct. 310, 74 L.Ed. 775 (1930); F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 40 S.Ct. 560, 64 L.Ed. 989 (1920); State v. Paramount-Gulf Theaters, Inc., 226 Miss. 404, 84 So.2d 403 (1956); Southern Package Corp. v. State Tax Commission, 174 Miss. 212, 164 So. 45 (1935). Nowhere is the power of classification accorded more latitude than in the field of taxation. While subject to the demands of the Fourteenth Amendment, “that Amendment imposes no iron rule of equality . .” Ohio Oil Co. v. Conway, supra, 281 U.S. at 159, 50 S.Ct. at 314, 74 L.Ed. at 782. Accord Allied Stores of Ohio, Inc., supra, 358 U.S. at 526, 79 S.Ct. at 440, 3 L.Ed.2d at 484; New York Rapid Transit Corp. v. New York, 303 U.S. 573, 578, 58 S.Ct. 721, 82 L.Ed. 1024 (1938). The state may tax certain kinds of property yet exempt others. Heisler v. Thomas Colliery Co., 260 U.S. 245, 255, 43 S.Ct. 83, 67 L.Ed. 237 (1922).

The United States Supreme Court has addressed the instant classification problem on several occasions. Heisler, supra, concerned a state taxing statute which levied a tax on anthracite coal production. Suit was brought alleging that the tax violated the equal protection clause because anthracite coal was taxed while bituminous coal was not taxed. The Court held that the natural difference between the two coals constituted a “just basis for their different classification,” and accordingly, upheld the tax. 260 U.S. at 257, 43 S.Ct. at 85, 67 L.Ed. at 242. Lake Superior Consolidated Iron Mines v. Lord, 271 U.S. 577, 46 S.Ct. 627, 70 L.Ed. 1093 (1926) involved a like tax levied upon ore lands but not upon other producing lands such as quarries and forests. Citing Heisler, supra, the Court affirmed the tax classification on the basis of the differences in the natural resources. 271 U.S. at 582, 46 S.Ct. at 629, 70 L.Ed. at 1101. In Broad River Power Co. v. Query, 288 U.S. 178, 53 S.Ct. 326, 77 L.Ed. 685 (1933), a suit was filed contesting the validity of a South Carolina law that taxed the production of electricity by hydroelectric power but not the production of electricity by oil or internal combustion engines. Again citing Heisler, supra, the Court held that the existence of comparatively few internal combustion electric plants was sufficient reason for creating the tax classification. 288 U.S. at 179-80, 53 S.Ct. at 327, 77 L.Ed. at 686. See also Allied Stores of Ohio, Inc., supra.

The foregoing demonstrates that no constitutional difficulties are raised by the fact that, within the tax classification of "other motor fuel [used] in performing contracts . . . with The state,” the tax is applied to diesel fuel used by a contractor as a heating agent but not to propane used as a heating agent. The record shows that the state interest behind the tax is the prevention of “double dipping.” The means chosen to halt this practice is the termination of all refund and exemption privileges for contractors using gasoline and other motor fuel in the performance of state contracts. In this way the contractors may recover their fuel tax cost but once through the contract bid and not a second time by way of a refund or exemption.

Finally, apart from the pronounced state interest in ending “double dipping,” a more basic reason may be relied upon to sustain the discrimination between propane and diesel, specifically the inherent differences between propane and diesel fuel. These differences were testified to by a witness for the Comptroller and form in and of themselves a sufficient basis for the tax classification. Heisler, supra, 260 U.S. at 257, 43 S.Ct. at 85, 67 L.Ed. at 242; Allied Stores of Ohio, Inc., supra, 358 U.S. at 528, 79 S.Ct. at 441, 3 L.Ed.2d at 486.

We, therefore, reverse the decree of the chancery court and reinstate the order of the Motor Vehicle Comptroller.

Reversed and order of the comptroller reinstated.

GILLESPIE, C. J., and PATTERSON, INZER, SMITH, ROBERTSON and WALKER, JJ., concur.

      . Other motor fuel is defined by § 27-55-303 (d) as follows:
      “Other motor fuel” means all combustible gases and liquids used or usable for the generation of power for propulsion of motor vehicles except that it does not include gasoline as defined in the gasoline tax law nor does it include liquefied compressed gas. Gasoline and liquefield compressed gas are
      separately defined and taxed by other statutes. See Mississipi Code Annotated §§ 27-55-1 et seq.; 27-59-1 et seq. (1972).