author: LEMMON, Judge. PER CURIAM.

text:
    Timothy Todd MILLER v. LAKE FOREST, INCORPORATED and ABC Insurance Company (two cases).
    No. 9993.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 10, 1979.
    Rehearings Denied May 17, 1979.
    Writ Refused June 25, 1979.

      Weidner & Brooks, John H. Brooks, Gret-na, for plaintiff-appellee.
    Murphy & Simon, James C. Murphy, Jr., New Orleans, for defendants-appellants.
    Before LEMMON, GULOTTA and STOULIG, JJ.
   LEMMON, Judge.

This suit to recover workmen’s compensation benefits arises out of an accident in which the company van plaintiff was driving struck a parked ear. The principal issues on appeal are whether plaintiff was in the course of his employment at the time of the accident and whether defendant presented sufficient proof in support of the special defense of intoxication.

Facts

At the time of the accident plaintiff was an air conditioning repairman employed by Lake Forest, Inc., a real estate developer. His duties included servicing units in various subdivisions, apartment complexes and shopping centers which had been developed by his employer.

Plaintiff’s regular hours were 8:00 a. m. to 4:30 p. m. He used the van assigned him by the employer to carry his tools and equipment to various places on service calls, and he carried a “beeper” on his person so that his office could contact him while on calls or after hours. Because plaintiff was often required to make service calls after his regular hours, his supervisor instructed him to take the van home each evening. However, he was specifically instructed not to use the van for personal purposes and not to work overtime without first obtaining permission.

Plaintiff testified: On the day of the accident he worked on a compressor most of the day. In the afternoon he was given several other calls by office personnel, and two or three of the assignments required him to call on customers after 5:00 p. m., when someone would be at the customers’ premises to allow him entrance. After he completed these calls, he headed east on Highway 90, in the direction of his home. He stopped at Collier’s Restaurant, where his wife worked, to check something on her car, and he had a sandwich and two beers during the 30 to 40 minutes he spent there. He left the restaurant, located on Highway 90, and continued east on the highway toward his home. Several miles down the highway he hit a dip in the road, and the van began to vibrate. He slowed until the van was under control, and as he resumed speed he hit a pothole and lost control. Upon braking, the van pulled to the right, and he hit a car parked on the side of the road. The accident occurred about dusk.

The investigating officer arrived about 8:15 p. m. and sent plaintiff to the hospital. He smelled alcohol on plaintiff’s breath, but observed no other indication of intoxication, and he did not order any testing of alcohol level.

Course of Employment

Lake Forest’s primary defense was that plaintiff’s accident was not in the course of his employment, because the collision occurred about three hours after his regular working hours, when he did not have permission to work overtime and when he had just completed a personal errand.

The determination of course of employment involves a time and place inquiry into relationship to employment. Since plaintiff was required to work at various places, he was in the course of employment while at or while traveling between customers’ locations during regular hours. And since he was required to take the van home after the last service call each day to serve the convenience of his employer, he was considered in the course of employment while traveling from the last service call to his home.

As found by the trial court, this accident happened while plaintiff was in a direct route between the place of the last service call and his home. Complicating the determination are the facts that the accident occurred long after regular working hours and that plaintiff had deviated for a personal errand on his trip home from the last call.

As to the time of the incident, the evidence apparently found to be credible established that plaintiff (Lake Forest’s only air conditioning mechanic) was assigned several calls that afternoon, that he “notified them” (office personnel) that two or three service calls could only be made after 5:00 p. m., and that he made these calls. While he admittedly did not seek the required permission of supervisory personnel to work overtime, he was in fact furthering his employer’s interest by making these calls at a time convenient to the customers, and there was uncontradicted testimony that he had followed this procedure before. Accordingly, the evidence supports a conclusion that plaintiff’s trip from the last service call to his home was in the course of employment, at least until he stopped at the restaurant.

Plaintiff did not detour to get to the restaurant, but simply stopped there on his regular and direct route home. Perhaps if plaintiff had sustained an injury while checking his wife’s car, such an injury may be non-compensable as having occurred during a deviation for a personal mission. However, this accident occurred after plaintiff had completed the personal mission and had resumed the trip home, thereby reentering the course of employment. Under these circumstances there is no manifest error in the determination that plaintiff was in the course of employment when injured.

Defense of Intoxication

In support of this defense based on R.S. 23:1081(2) Lake Forest argues that plaintiff had alcohol on his breath, that he behaved in the hospital as if he were intoxicated, and that running off the highway into a car parked on the shoulder is an act characteristic of a drunk driver.

The smelling of alcohol was the only factor established by the policeman as indicative of intoxication. Plaintiff’s combative behavior at the hospital, while compatible with drunkenness, was also compatible with the multiple serious injuries he had sustained. Finally, many sober drivers lose control of their cars and run off the road.

On the evidence presented we cannot say the trial court erred in concluding defendant failed to meet the burden of proving the defense of intoxication.

Medical

In the March 18,1975 accident plaintiff sustained a fractured skull, with a cerebral contusion of one frontal lobe; two fractures of the orbit of the eye; a fractured clavicle; a fractured finger; two fractured ribs, with pulmonary contusion and ultimately a collapsed lung; lacerations of the forehead, lip and ear; and abrasions of the chest and abdomen. He was in intensive care for several days and was hospitalized for nine days.

After his release from the hospital, most of the multiple injuries cleared uneventfully, and plaintiff was followed primarily by Dr. Naccari, a family practitioner, and by Dr. Richardson, a neurological surgeon.

Dr. Richardson diagnosed a cerebral concussion and saw plaintiff approximately monthly for complaints of headaches, neck soreness, nervousness, irritability and difficulty in speech. Finding no evidence of damage to the central nervous system and no neurological deficit, he attributed the complaints to post-concussion headaches. In July, 1975 he stated he could offer no further assistance and discharged plaintiff. He was not questioned as to any residual disability.

On cross-examination the doctor noted that post-concussion headaches usually do not last over three months and usually do not reoccur; that he found no indication of personality changes and that significant changes occur only when there is injury to both frontal lobes (plaintiff injured only one); that frontal lobe injuries do not generally make persons nervous and irritable, but rather make them uncaring; and that plaintiff had a “very mild” form of difficulty in speech.

Dr. Naccari followed plaintiff’s progress with frequent examinations through August and observed no delayed signs of internal head or abdominal injuries. On October 10, 1975 he advised plaintiff to return to work and to return for examination if symptoms reappeared. He further stated he had not had any difficulty in communicating with the patient.

Plaintiff also presented Dr. Vogel, a neurosurgeon that he consulted for evaluation of headaches and shoulder pain in February and April, 1976. After a neurological examination and review of the hospital records and an electroencephalogram (which he classified as normal overall with some abnormal signs), Dr. Vogel diagnosed a post-concussion syndrome, which generally resolves in three to six months, although some take longer. The doctor expressed the expectation that plaintiff would return to gainful employment without permanent impairment.

In April, 1976 plaintiff began working as an air conditioning mechanic for another company, but was released after about four months because of unsatisfactory performance and a dispute over workmen’s compensation or unemployment compensation involving a knee injury on that job. About a year later he went to work in the same capacity for another air conditioning company and was still working there at the time of the January, 1978 trial.

The trial court rejected Dr. Naccari’s testimony, but even when that testimony is disregarded, the remaining evidence simply does not provide medical support to fulfill plaintiff’s burden of proving permanent disability or any disability beyond April, 1976. The fact of severe initial injury and the credible testimony of plaintiff and his wife as to residual effects cannot provide sufficient support for a finding of continuing disability when every doctor stated that plaintiff could return to work without permanent impairment and when no doctor even examined plaintiff after April, 1976, the date that he in fact returned to full time employment.

The judgment awarding benefits based on permanent disability must be modified to award weekly benefits through April, 1976.

Penalties and Attorney's Fees

The trial court, finding Lake Forest’s defense of intoxication to be frivolous, awarded penalties and attorney’s fees. However, Lake Forest’s defense that plaintiff’s injury did not occur in the course of his employment must be regarded as a serious defense presented in good faith. Indeed, since the accident occurred at a time when plaintiff was not usually engaged in employment activities and did not have the required permission to do so, and when he had just completed a personal mission, plaintiff had to overcome a presumption that the accident was not employment related.

Although plaintiff’s injuries were serious and his medical bills catastrophic, Lake Forest was still entitled to a judicial determination of its good faith defense without being subjected to penalties based on arbitrary refusal to pay compensation.

Decree

The judgment of the trial court is amended to award workmen’s compensation benefits only through April, 1976 and to delete the award of penalties and attorney’s fees. As amended, the judgment is affirmed.

AMENDED AND AFFIRMED.

ON APPLICATION FOR REHEARING

PER CURIAM.

On application for rehearing defendant, in addition to arguing for reversal, contends the medical bills of Drs. Vogel and Azar should be disallowed, because these physicians did not treat plaintiff.

Plaintiff consulted Dr. Azar in April, 1975 (one month after the accident) and Dr. Vo-gel in February and April, 1976 with complaints of headaches. While these specialists did not provide a course of treatment, they did examine plaintiff for purposes of medical assistance and not merely in preparation for the January, 1978 trial, as occurred in Hooper v. Wilkinson, 252 So.2d 137 (La.App. 3rd Cir. 1971).

The application is denied.

DENIED.


source: Caselaw Access Project

author: STOULIG, Judge.

license: Public Domain

text:
    Susan PETERS, wife of/and John Downey v. CROCHET HOMES, INC., Raymond Crochet, Sr., and Raymond Crochet, Jr.
    No. 9995.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 10, 1979.
    O’Keefe, O’Keefe & Berrigan, E. John Litchfield, New Orleans, for plaintiffs-appellants.
    Robert S. Taylerson, New Orleans, for defendants-appellses.
    Before LEMMON, GULOTTA and STOULIG, JJ.
   STOULIG, Judge.

Plaintiffs, Susan Peters, wife of/and John Downey, as judgment creditors of Crochet Homes, Inc., filed suit against the corporation, Raymond Crochet, Sr., and Raymond Crochet, Jr., for declaratory relief decreeing that a transfer of a corporate asset to Raymond, Jr., was an unlawful distribution to a shareholder rendering the transferee individually liable for the value of the arrest. From a judgment dismissing their suit, plaintiffs have appealed.

Plaintiffs’ claim rests on R.S. 12:93(D), which provides:

“Every shareholder who receives any unlawful dividend or other unlawful distribution of assets shall be liable to the corporation, or to creditors of the corporation, or to both, in an amount not exceeding the amount so received by him. An action to enforce this liability must be brought within two years from the date on which the unlawful distribution was received, and this time limit shall not be subject to suspension on any ground, nor to interruption except by timely suit.”

On January 23, 1976, plaintiffs filed suit against Crochet Homes, Inc., for breaching a home construction contract through inept and unsatisfactory workmanship. The case was tried September 29, 1976 and a judgment awarding plaintiffs $2,719 was rendered December 3, 1976.

The asset allegedly conveyed by Crochet Homes, Inc., to Raymond, Jr., to the prejudice of plaintiffs was one 1973 Chevrolet pickup truck. Title is now in the name of Crochet, Inc. What is interesting to note is that the title reflects Crochet, Inc., acquired the truck on September 27, 1976; however its title was not issued until February 9, 1977. Stated another way, the transfer is dated two days before the trial; however Crochet, Inc.’s title was not effected until two months after judgment was rendered.

Both Crochet Homes, Inc., and Crochet, Inc., are vehicles through which Raymond, Jr., either operated or presently operates a business from which he alone derives revenue. Although Raymond, Sr., was a shareholder in Crochet Homes, Inc., the record indicates that only Raymond, Jr., derived income therefrom. Incorporated for the purpose of home construction, Crochet Homes, Inc., was only actively used long enough to build the Downey home, which turned out to be a fiasco. Crochet, Sr., testified with this result it seemed pointless to continue in business. At the time of the trial Crochet, Inc., was in the business of house remodeling.

When the date of transfer of the vehicle from Crochet Homes, Inc. to Raymond, Jr., individually, or to Crochet, Inc., are compared with the dates of trial and judgment respectively, the inference is almost inescapable that the purpose of the transaction was to remove an asset of the corporation from the reach of a creditor. And the testimony of both Crochet, Sr., and Crochet, Jr., added no information to satisfactorily explain the transfer of the only corporate assets to Crochet, Inc.

Raymond, Sr., testified that in 1975 he transferred all his stock and the truck to his son Raymond, Jr., in consideration of the cancellation of a debt he owed to his son. The nature of the debt was not explained nor was any documentary evidence offered to prove its existence. In fact he later testified that he received no compensation for the transfer of the stock. Further Raymond, Sr., failed to clarify by what right he used a corporate asset (the equity in the truck) to pay a personal debt to his son if one actually existed.

Raymond, Jr., conversely testified that the truck was acquired in April 1976 when the younger Crochet owned all the stock in Crochet Homes, Inc. He testified the truck was not transferred from Crochet Homes, Inc., directly to Crochet, Inc., but rather it was conveyed by Crochet Homes, Inc., to him individually and then to Crochet, Inc. He explained the corporation owed him $344 for labor and materials and he assumed a bank loan of $1,900. Again there was no documentary evidence tendered to establish the debt, the act of transfer, or the payments made on the assumed bank loan. The testimony of the individual defendants is contradictory and uncorroborated by records that should be available to them.

Viewed as a whole, the conclusion is inescapable that the transfer of the truck is a simulated transaction. In Dare v. Myrick, 168 So.2d 845 (La.App. 2d Cir. 1964), the court pointed out that one circumstance creating an inference of simulation is the continued possession by the vendor of the article transferred.

We conclude the truck, transferred on September 26, 1976 two days before trial and registered after the judgment, was a simulated transaction and an unlawful distribution of corporate property for which the transferee shareholder is individually liable. The value of the asset sold was established by Raymond, Jr., at $2,200 and he is liable individually to plaintiffs in this amount.

Crochet, Jr., is liable either as a shareholder who has received an unlawful distribution under R.S. 12:93(D) or under the alter ego exception to the rule that stockholders of corporations are not liable for individual debts. Both bases were discussed in McGregor v. United Film Corp., 351 So.2d 1224 (La.App. 1st Cir. 1977). Quoting Texas Industries, Inc. v. Dupuy & Dupuy Developers, Inc., 227 So.2d 265 (La. App. 2d Cir. 1969), the McGregor decision emphasized:

“ ‘A general exception to the rule of nonliability of shareholders and officers for corporate obligations is recognized where the shareholder or officer has practiced fraud upon a person through the corporation or upon the corporation itself. LSA-R.S. 12:95.
“‘Other exceptions to these rules of nonliability of a shareholder for corporate debts have been recognized where the stockholder is the alter ego of the corporation. For the doctrine of an alter ego to apply, it must be shown that the stockholder whose individual and personal liability for a corporate debt is sought disregarding the entity of the corporation and, thus, made the corporation a mere agency for the transaction of his own private business. Thus, the separate individualities of the corporation and its stockholders must have ceased to exist. Brown v. Benton Creosoting Co., Inc., 147 So.2d 89 (La.App. 2d Cir. 1962-cert. denied).
“ ‘The doctrine of alter ego does not create assets in a corporation but it simply fastens liability on an individual who uses the corporation merely as an instrumentality in conducting his own personal business. Liability in such instances springs from fraud perpetrated not necessarily on the corporation itself but upon third persons dealing with the corporation. Shreveport Sash and Door Company v. Ray, 159 So.2d 434, 437 (La.App. 2d Cir. 1963). . . .
“ ‘The fact that one owns a majority of stock in a corporation does not of itself make him liable for the corporate debts. So long as the corporate existence is maintained, immunity from liability of even a sole stockholder is the same as if there are many stockholders. Buckeye Cotton Oil Co. v. Amrhein, 168 La. 139, 121 So. 602 (1929); Johnson v. Kinchen, 160 So.2d 296 (La.App. 1st Cir. 1964); 18 C.J.S. Corporations §§ 580, 581, pp. 1306-1308. Except under circumstances whereby a shareholder becomes individually liable for corporate debts through fraud, deceit, or ill practices, the shareholder is within his rights to limit his obligation by the amount of and to the extent of his subscription for capital stock. He may properly say, “Thus far I will go but no further — I will risk the amount paid for my stock, but no more.” ’ (emphasis added).” 351 So.2d at 1227-28.

For the reasons assigned the judgment appealed from is reversed and it is now declared that the transfer of the truck from Crochet Homes, Inc., to Raymond Crochet, Jr., or his alter ego, Crochet, Inc., was an unlawful distribution of corporate assets. It is now ordered, adjudged and decreed that there be judgment in favor of plaintiffs, Susan Peters, wife of/and John Dow-ney, and against defendant Raymond Crochet, Jr., in the sum of $2,200, with legal interest from judicial demand and all costs of this litigation.

REVERSED AND RENDERED.

      . The corporation Crochet, Inc., was formed by Raymond Crochet, Jr., some time after Crochet Homes, Inc. became defunct.

      . Based upon his own testimony Raymond, Jr., executed the transfer of the truck in the capacity of both transferor and transferee. He acted on behalf of the corporation without the customary corporate authorization, which is indicative of the fact that he was conducting the affairs of the corporation as a sole proprietorship.


author: LEMMON, Judge. GULOTTA, Judge,

text:
    James Frank STEINKAMP, Jr. v. Cynthia LUTHJENS, wife of James Frank Steinkamp, Jr. (Consolidated with No. 9998, Cynthia Luthjens Steinkamp, wife of James Frank Steinkamp, Jr. v. James Frank Steinkamp, Jr.)
    No. 9997.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 10, 1979.
    Rehearing Denied May 17, 1979.
    James Burnett Aime, New Orleans, for plaintiff-appellee.
    Gerald J. Martinez, Metairie, for defendant-appellant.
    Before LEMMON, GULOTTA and STOULIG, JJ.
   LEMMON, Judge.

This is an appeal by the mother of two minor children from a judgment reducing the child support obligation of her former husband. The issue is whether a reduction may properly be based on the fact that the father remarried after the divorce and now has a second wife and a child born of premarital union with his second wife to support, although he was living with and apparently supporting the second wife and their child at the time of the previous setting of the support obligation.

The parties were divorced in May, 1977 by a default judgment which was silent as to alimony, but which fixed child support at $75.00 per week, the same figure at which the combined alimony pendente lite and child support obligation had been set in a March, 1976 consent judgment.

At the April, 1978 trial of the rule to reduce, the father’s gross earnings were $1,035.00 per month (net stated at $700.00, but no showing of deductions), which was only slightly higher than at the time of the judgment of divorce. The mother’s gross earnings were $475.00 per month (net, $383.00).

Although the father may have been supporting his second wife at the time of his divorce, he was under no legal obligation to do so. By contracting the second marriage, he incurred the legal obligation to support the second wife, and this obligation constitutes a change in circumstances entitling Mm to a refixing of the support obligation in accordance with the totality of circumstances existing in April, 1978.

The obvious limiting consideration is the amount of the father’s income. The reduction of the support obligation for two children of a previous marriage from $75.00 to $47.50 per week for a father with this income, who is also obliged to support a second wife and another child, is not an abuse of discretion.

AFFIRMED.

GULOTTA, J., concurs in result.

GULOTTA, Judge,

concurring.

I reluctantly concur in this result.


author: STOULIG, Judge. LEMMON, Judge, PER CURIAM.

text:
    Paula NEWELL and Cynthia White v. ORLEANS PARISH SCHOOL BOARD.
    No. 10000.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 10, 1979.
    Rehearing Denied May 17, 1979.
    Writ Refused July 2, 1979.
    Nelson, Nelson & Lombard, John P. Nelson, Jr., Larry Samuel, New Orleans, for plaintiffs-appellees.
    Polack, Rosenberg, Rittenberg & Endom, Franklin Y. Endom, Jr., New Orleans, for defendant-appella nt.
    Before LEMMON, GULOTTA and STOULIG, JJ.
   STOULIG, Judge.

The Orleans Parish School Board has appealed a judgment which by writ of mandamus directs it to grant sabbatical leave to appellees, Cynthia White and Marianne Newman.

To qualify for a one-semester sabbatical leave the applicant must have six consecutive semesters of active service immediately before a leave may be granted or twelve consecutive active semesters before a two-semester sabbatical leave may be granted. (R.S. 17:1171) In this case appellees would have been eligible for sabbatical leave had the Board credited their maternity leaves as active service time. The issue then is whether maternity leave interrupts active service insofar as sabbatical eligibility is concerned.

Plaintiff Cynthia White taught from September 1973 through May 1976, or six consecutive semesters. She applied for and was granted maternity leave during the 1976 — 77 school year, and in the spring of 1977, while on maternity leave, she requested sabbatical leave for the fall 1977 semester. Appellant denied her request. Similarly, Marianne Newman taught from January 1971 through May 1977, or 13 consecutive semesters. In fall 1977 she was out on maternity leave. Her application for sabbatical leave for the spring 1978 semester was denied. Hence this suit for mandamus.

R.S. 17 regulates public education in Louisiana and Chapter 2, entitled “Teachers and Employees,” contains, among other things, a section on “Leaves of Absence” designated as Part X. We summarize the law in effect at the time the plaintiffs’ leaves were applied for and denied. Sub-part A defined the sabbatical leave and the active service requirements for eligibility in R.S. 17:1171. The last paragraph of that statute created two exceptions to the active service requirement specifying that documented sick leave and involuntary military service would not be deemed to be interruptions of active service even though the teacher was not continuously in the classroom while his or her eligibility for sabbatical leave was accruing. The exceptions created in 17:1171 expressly referred to the statutes that dealt with them, i. e., the sick leave provision was limited to Part X, Sub-part B and the military leave was restricted to R.S. 17:1215. Obviously the latter had nothing to do with maternity leave. Nor could we class maternity leave as sick leave under Sub-part B because Sub-part C expressly regulated maternity leave.

R.S. 17:1211, Sub-part C mandated that boards “ * * * shall grant leaves of absence to regularly employed women teachers for a reasonable time before and after childbirth,” and stated the granting of such leaves should not affect tenure rights acquired prior to the leave under R.S. 17:441 through 17:444 or 17:461 through 17:463. (These sections relate to job security once the teacher has completed the three-year probationary period.) The legislative intent was clear that active service time required for sabbatical eligibility under 17:1171 could not include maternity leave. In this connection we note the Board did not consider that segment of maternity leave medically required for childbearing as an interruption of active service.

The Orleans Parish School Board had adopted a policy in administering the sabbatical eligibility laws that obviates a constitutional problem. It required a pregnant teacher to leave her teaching position at least four weeks before delivery and permitted her to resume her teaching duties six weeks after the birth of her child. Her absence during this period was not treated as an interruption of active service. Thus, for the childbearing period — the time before and after delivery that the Board was informed was required medically for childbirth — the teacher’s status was maintained as active. Had this not been the rule the constitutional challenge urged by appellees would have merit.

The teacher who voluntarily elected to remain with her infant child once the six-week post-delivery period expired then was deemed to have interrupted her active service. The logic of continuing the teacher on active status during the minimum 10-week childbearing period is inescapable because at this point in time it is medically unsound for her to be in the classroom.

Appellees charge our holding is unconstitutional in that it abridges due process and equal protection guarantees afforded plaintiffs by the state and federal constitutions. Without developing argument in which respects both guarantees are violated, plaintiffs basically take an equal protection approach and argue the failure to credit maternity leave as active service is sex discrimination. La.Const. of 1974, Art. 1, §§ 2 and 3, and Amendment 14 of the United States Constitution provide, inter alia, that all persons, regardless of sex, are entitled to equal protection (and administration) of law.

The equal protection argument fails in the light of the holding in General Elec. Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976), and the jurisprudence it discusses and distinguishes. Were the distinctions involving pregnancy mere pretexts designed to effect an invidious discrimination against members of the female sex, the Court pointed out, then the laws so regulating rights of childbearing women would be a denial of equal protection. However, it was noted that the mere fact that only women can become pregnant does not render every legislative act regulating pregnancy a gender-based discrimination.

The sabbatical leave laws, as administered by the Board, permitted these women teachers who elected to have children the right to maintain active service status during the childbearing period. The failure to extend active status to the elective (not medically required) child-caring period created no abridgement of the equal protection guarantees constitutionally afforded plaintiffs. Nor do we consider the laws as administered to constitute a denial of property without due process of law.

If we were to interpret the law as plaintiffs suggest, it would be possible for a teacher with three pregnancies and safe deliveries within a three-year period to acquire sabbatical leave without any active teaching time. As R.S. 17:1171 indicates, sabbatical leave is for the purposes of either continuing education or rest and recuperation. It is not a vacation period that accrues after so many years of service.

For the reasons assigned, the judgment appealed from is reversed and the writ of mandamus ordering the Orleans Parish School Board to grant sabbatical leaves to Cynthia White and Marianne Newman is hereby vacated. Plaintiffs are to pay all costs of this litigation.

REVERSED; WRIT OF MANDAMUS VACATED.

LEMMON, Judge,

concurs and assigns reasons.

R.S. 17:1211 requires school boards to grant leaves of absence to teachers for the purpose of bearing a child, but only for “a reasonable time before and after childbirth”.

If this case involved teachers who had taken authorized maternity leaves for a reasonable time before and after childbirth, I would vote that the active service required by R.S. 17:1171 (even before the 1978 act) had not been interrupted. However, these teachers (insofar as this record shows) went far beyond the reasonable time for a maternity leave as authorized by R.S. 17:1211, and their active service time required for sabbatical leave was interrupted.

ON REHEARING

PER CURIAM.

On application for rehearing plaintiffs argue the effect of the School Board’s past practice of considering all maternity leaves as non-interruptive of the period of active service required for eligibility for sabbatical leave. However, this record contains no evidence that plaintiffs relied to their detriment on any past practices of the School Board.

      . By amendment and supplemental petition Marianne Newman was made an additional party plaintiff. Paula Newell, the third appel-lee, retired from the Orleans system and voluntarily moved to vacate the favorable judgment she obtained.

      . Apparently acting to eliminate the inequity of the interruption of continuous service compelled by pregnancy and childbirth and to avoid the constitutional prohibition against gender-based discrimination, the legislature adopted Act No. 385 of 1978 amending R.S. 17:1171 to provide that “ * * * the period of disability occasioned by pregnancy and/or childbirth as determined by a certificate from the employee’s attending physician, shall not be deemed to interrupt the active service herein provided for * * *.” The amendment conforms with the policy of the Orleans Parish School Board in effect prior to the adoption of this amendment.


text:
    Victoria Dimitry WILLIAMS v. ORLEANS PARISH SCHOOL BOARD.
    No. 10108.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 10, 1979.
    Rehearing Denied May 17, 1979.
    Writ Refused July 2, 1979.
    Nelson, Nelson & Lombard, John P. Nelson, Jr., Larry Samuel, New Orleans, for plaintiff-appellee.
    Polack, Rosenberg, Rittenberg & Endom, Franklin V. Endom, Jr., New Orleans, for defendant-appellant.
    Before LEMMON, GULOTTA and STOULIG, JJ.
   STOULIG, Judge.

The Orleans Parish School Board has appealed a judgment in which the court issued a preliminary injunction “* * * directing defendant Orleans Parish School Board to grant the sabbatical leave for the 1977— 78 school year applied for by petitioner Victoria Dimitry Williams.”

Plaintiff, an Orleans Parish School Board teacher since August 31, 1970, served continuously in that position until she took maternity leave from August 23, 1976 through April 25, 1977. She was on the payroll for the month of May 1977 as an active teacher. Her request for sabbatical leave for the 1977-78 school year was denied.

For the reasons assigned in Case No. 10,-000 entitled “Paula Newell and Cynthia White v. Orleans Parish School Board,” La. App., 370 So.2d 655, consolidated with this case on appeal, the judgment of the trial court is reversed and the injunction is dissolved. Plaintiff is to pay all costs.

REVERSED; INJUNCTION DISSOLVED.

LEMMON, Judge,

concurring.

I concur for the reasons assigned in No. 10,000, Paula Newell and Cynthia White v. Orleans Parish School Board, La.App., 370 So.2d 655.

ON REHEARING

PER CURIAM.

On application for rehearing plaintiffs argue the effect of the School Board’s past practice of considering all maternity leaves as non-interruptive of the period of active service required for eligibility for sabbatical leave. However, this record contains no evidence that plaintiffs relied to their detriment on any past practices of the School Board.

      . In view of the result we reach we make no comment on the procedure.


author: REDMANN, Judge.

text:
    Mary RASBURY, wife of Joseph Roger Baudier v. Joseph Roger BAUDIER.
    No. 10007.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 10, 1979.
    Philip R. Riegel, Jr., Parlongue & Riegel, New Orleans, for plaintiff.
    Evangeline M. Vavrick, New Orleans, for defendant.
    Before REDMANN, BOUTALL and SCHOTT, JJ.
   REDMANN, Judge.

A divorced wife appeals from the dismissal on exception of prescription of her action for partition of her ex-husband’s military pension, which was not expressly mentioned in the original partition of their community property.

The theory of the ex-husband’s exception is, necessarily, that the ex-wife’s action was one for rescission of the original partition, because he pleads the five year prescription of actions to rescind, La.C.C. 1413 and 3542. The ex-husband’s theory presupposes that the partition disposed of the disputed item; otherwise rescission of the partition would be unnecessary and, indeed, C.C. 1401 declares that “mere omission of a thing ... is not ground for rescission, but simply for a supplementary partition.”

The petition here did not allege any cause, such as lesion, C.C. 1398, for rescission of the original partition; it alleged only that the military pension had been omitted. Such a petition for partition alleging omission of an item in an earlier partition may be mistaken, and may fail for lack of proof, but it is an action for partition and as such is never subject to an exception of liberative prescription; C.C. 1304.

If the act of partition included the disputed item either by express description or by some general clause, then the petition for partition should fail on the merits because plaintiff is not a co-owner of the property sought to be partitioned: because she has no claim, not because her claim is prescribed.

If, on the contrary, the original partition did not include the disputed item, then neither ex-spouse has succeeded to the other ex-spouse’s interest in the item. The item would therefore remain co-owned by the two ex-spouses, and an action by a co-owner for a partition is never prescribed; C.C. 1304.

Thus, irrespective of whether the item was included in the original partition or not, the exception of liberative prescription was incorrectly maintained.

Reversed; exception overruled.

      . Only if plaintiff should amend her petition to seek rescission would prescription become applicable.

      . The act of partition (stipulated into the record on appeal) contains only one clause which would transfer to one spouse the other’s interest in unspecified things: the husband is given “miscellaneous contents and movables now in his possession, including television, radio-phonograph, ironer, attic fan, etc., valued at $150.” Both because of its total valuation of the things it included and because of its express mention of comparative trifles, that clause can hardly be interpreted to include military pension rights worth many thousands of dollars. Furthermore, “funds deposited in the Louisiana state employees retirement system,” valued at only $2,532.29, were expressly listed elsewhere, again making it more probable than not that the much more valuable military pension was not intended to be included in the $150 miscellany.
      Nor does the act contain a general clause similar to that of Moon v. Moon, La.App., 3 Cir. 1977, 345 So.2d 168, writ refused, 347 So.2d 250, by which the ex-wife conveyed to the ex-husband “All movable property formerly belonging to the community . . excepting the movable property . . . specifically conveyed hereafter to” the ex-wife. Moon was itself a divorce case, filed a year and four days after a judgment of separation (which necessarily preceded the partition). Thus Moon did not present a five-year prescription problem. The husband’s defense in Moon was that the quoted language transferred to him the wife’s interest in his military pension. The court conceded that “out of context” the language included the pension, but concluded that, in context, it did not. Our act of partition contains a general clause by which the parties “discharge each other from any further accounting . and declare that the community and all claims in connection therewith have been fully liquidated . and that there are no other assets of the community.” In considering the effect of this clause we are mindful, as the ex-husband notes, that the ex-wife got a disproportionate share of the net recited value of assets over liabilities expressly included in the partition ($13,831.18 to $5,359.65), notwithstanding the partition’s declaration that the shares “are of equal value.” These circumstances may suggest the possibility that the parties did consider the value of the military pension. Still our act’s general clause does not (as Moon’s did) purport to transfer to either ex-spouse the other’s interest in unspecified property.
      In any case the question of whether the disputed item was included in the original partition or not is not raised by an exception of prescription.


author: BOUTALL, Judge. REDMANN, Judge,

text:
    Henrietta BENWARD v. Joseph GERACE, Administrator of the Louisiana Department of Employment Security and Orleans Parish School Board.
    No. 10010.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 10, 1979.

      Henrietta Benward, in pro. per.
    James A. McGraw, Baton Rouge, for defendants-appellees.
    Before REDMANN, BOUTALL and SCHOTT, JJ.
   BOUTALL, Judge.

This is an appeal from a decision of the Louisiana Department of Employment Security denying unemployment compensation benefits.

Henrietta Benward, appellant, was retired from her position as a school teacher on May 28, 1976 because she had reached the age of 65. She applied for unemployment benefits on May 30,1976. The Louisiana Department of Employment Security determined that appellant was not entitled to benefits and an appeal was taken. Both the Louisiana Board of Review and Civil District Court for the Parish of Orleans affirmed the denial of benefits. Mrs. Ben-ward now appeals to this court.

The denial of benefits was based upon a questionnaire filled out by government employees upon retirement. In this document, appellant stated that she would only be available for volunteer work on a part-time basis. This questionnaire was signed by appellant and is part of the record in this case. She also signed a form for the agency on August 31, 1976 on which she stated: “I am able and available for summer employment, I did not seek employment because no one will hire anyone over 65 years of age.”

Benefits were denied pursuant to Louisiana Revised Statute 23:1600 which provides:

“An unemployed individual shall be eligible to receive benefits with respect to any week only if the administrator finds that:
* * * * * *
“(3) He is able to work, and is available for work.”

The agency found that appellant was, by her own admission, not available for work within the wording of the statute. At the hearing before the appeals’ referee, Mrs. Benward testified that she did seek work during the summer of 1976 and that she really wanted full time work, both in conflict with her signed statements. She did admit having signed the statements, however. No other evidence or testimony was introduced at the hearing.

Findings of the Board of Review as to facts are conclusive if supported by sufficient evidence and in the absence of fraud. Louisiana Revised Statute 23:1634. The Board’s decision resolving the conflict between the testimony of appellant and the signed documents in favor of the documents is supported by sufficient evidence since the documents are present in the record. Further, we agree with the finding that appellant was not “available for work” within the meaning of R.S. 23:1600. A claimant cannot arbitrarily remove herself from available work by restricting her willingness to certain hours or conditions not usual or customary in the occupation. See Lykes Bros. Steamship Company v. Doyal, 338 So.2d 594 (La.1976).

For these reasons, the denial of benefits is affirmed.

AFFIRMED.

REDMANN, Judge,

concurring.

If a schoolteacher were entitled by law to collect both retirement pay and (unless disqualified) unemployment benefits because of involuntary retirement, then Henrietta Benward should collect unemployment benefits. Defendant’s withholding benefits forever because of its unfair determination that she was not “available for work” one week is insupportable. (The circumstances of defendant’s determination are set forth in an appendix.)

But a schoolteacher or other governmental (or private) employee is not entitled to such dual compensation for retirement. La. R.S. 23:1601(7)(c), as adopted in 1950 so provided until Acts 1968 No. 655 omitted the word “governmental”, leaving only “private” pension plan beneficiaries affected by that section. However, the title to Act 655 gave no hint that one of its purposes was to make governmental employers pay unemployment compensation to their retirees in addition to retirement benefits. Nor, indeed, did the wording of the body of the act suggest such a purpose: the body indicates only that one who retired from private employment cannot collect unemployment pay in addition to the retirement pay on account of the retirement. The omission of “governmental” retirement pay presumably had worthy purposes, perhaps to allow one drawing retirement pay from one branch or agency or level of government to work for another with full unemployment protection. But the omission of “governmental” had the effect of removing the word that made it clear that a governmental employee, involuntarily retired with pay, is not thereby entitled to unemployment benefits as well. (An amendment by Acts 1976 No. 366, effective October 1,1976, again makes it express that government employees cannot draw both benefits because of the one retirement.)

Unemployment benefits and retirement benefits are both wage-replacement devices, and it is as unfair to the governmental employer as it is to the private employer to make an employer replace wages of a retired employee twice — once in retirement pay and once in unemployment benefits.

The title-body clause, La.Const. art. 3 § 15(A), requires that an Act have a title indicative of its object and invalidates “extraordinary subject matter” in the body of that Act that is not indicated by the title; Terrebonne Par. P. J. v. Board of Com’rs, La.1975, 306 So.2d 707. The title of Acts 1968 No. 655 was simply “An Act To amend and re-enact [R.S. 23:1601(7)(c)] relative to disqualification for benefits under the Louisiana Employment Security Law.” That title says no more than that the Act’s purpose is to amend existing law, without any hint of the intended amendment — an amendment also not hinted at in the body of the Act. There is no way to learn from that Act’s title (or body) that its object is to allow governmental employees both retirement pay and unemployment compensation upon their retirement. That Act so interpreted would therefore be unconstitutional.

Accordingly appellant’s having been forced to retire does not entitle her to unemployment compensation benefits, notwithstanding that she was available for work.

APPENDIX

The apparent basis upon which the agency and finally the Board of Review disqualified Mrs. Benward (for only one week, although she was never so told) was her signature on two forms filled in by someone else — presumably a clerk in the employment security office. Those forms contained the statements that (on May 30) Mrs. Benward wanted only part-time work and (on August 31) that she had not tried to find work because employers would not hire the over-65. The latter statement is irrelevant to whether Mrs. Benward was “available for work” within R.S. 13:1600(3); the former may limit but does not prevent availability. Mrs. Benward maintains that she never made those statements anyway.

The trial court had earlier remanded this matter for a hearing because there had been none. The .“hearing” that resulted was worse than none: Appeals referee Andrew L. Kern both refused to hear Mrs. Benward’s denial of one statement and explanation of the other and added insult to that injury by shaming her and arguing with her — page after page in the transcript — for signing a form that contained an error:

Referee: Whatever you want to say about these 2 statements. One says — let’s go over them again. They’re very short. One says I did not seek employment, because no one will hire anyone over 65 years of age. The other says what type work will you accept. The answer is volunteer work, only part-time work. Anything you want to say about that.

Claimant: The statement was really this— I’m going to have a hard time getting work, because people pass 65 they don’t hire so quickly. That’s the statement.

Referee: I hate to contradict you, ma’am. That is not the statement. If that was the statement, I would’ve read it. I read the statement. What you’re saying now is anything you’d like to say. You’re perfectly welcome to say, but we will not have it in the record that that is the statement on these forms, because that’s not the statement on the forms. That you might have difficult whatever you just said.

What did you do then, Mrs. Benward, during the summer of ’76 to find work?

Claimant: I went out and looked for work. I went to the employment office several times.

* * * * * *

Claimant: I asked the lady — I told the lady I would like the kind of work that probably she’s doing. Secretarial work or interviewing work or something. Since she told me first that I would hardly be able to get work teaching.

Referee: Well, that’s obvious, isn’t it? She didn’t have to tell you that. You knew that probably better than she did. You’re a teacher yourself.

* % * * * *

Referee: So you applied at the Agency in ’76 in the summer of ’76 for work. You said as an interviewer or as a teacher. What about the statement here that you only worked part-time?

Claimant: I’ve heard that statement several times, but I’m really not aware of saying that because—

Referee: Whether you said it or not you signed the statement. I’ll show it to you again.

Claimant: I have the statement.

Referee: You did sign it, is that right, ma’am?

Claimant: Yes.

Referee: Is it true or isn’t it? That you only worked part-time.

Claimant: No, I [did?] regular work. I wanted regular work.

Referee : Then, of course, we’re back to the original question. Why did you sign a statement that wasn’t correct? You’re a teacher, an educated person.

Claimant: Like I’m saying I really wasn’t aware of that part-time work.

Referee: I don’t understand that remark. You weren't aware of that. It’s right there. And you acknowledged it right there on the statement in very clear writing.

Claimant: Well, if I could’ve gotten part-time work, I would’ve taken part-time work. But I wanted regular work. I been working regular for 21 years.

Referee: That’s fine.

Claimant: But not I just wanted part-time work.

Referee: That’s the problem, you see, because this statement which you signed says only part-time work. It does not say I will accept part-time work. It says only part-time work. That was the problem why the Agency held you not available, you see. You’re restricting your work to part-time. They say you’re restricting your work to part-time, because you said only part-time work.

Claimant: Every agency I went to looking for work (inaudible) part-time work.

Referee: Can you account for how you signed this statement? An educated person like yourself signed this statement where it said only part-time work. Why would you do that? Why would you tell them no that is not correct? I will not sign the statement if there’s only part-time work, because this is not correct.

Claimant: I did say several times after.

Referee: I don’t know what you mean, ma’am, after.

Claimant: Well, I came here several times and had an interview. In the meantime, I came I said I didn’t say anything about no part-time work.

Referee: Another statement I’m concerned with is August 31st that was at the end of the summer. You signed a statement. It says clearly again very clearly. I did not seek employment because no one will hire anyone over 65 years of age. I did not seek employment. Very clearly.

Claimant: I did not say (inaudible) just closed — just about a week after school closed.

Referee: No, ma’am. That wasn’t the week after school closed. That was August 31st. School was just started open again. . Whatever you want to say about that statement, Mrs. Benward, you finished this statement August 31st where it says only part-time work and you signed it. That statement again it says — that’s August 31st ’76. It’s not right at school closing time. It’s near school opening time. In fact, at the end of the summer August 31st. It says again I did not seek employment because (inaudible). Is that clear? I did not seek employment.

Claimant: Whatever I said I said under one breath. The next time I came here I was ready to change that statement that was down there. I said no I want to work. The lady said if you want work then we’ll change the statement on that form.

Referee : You did admit that was the truth, didn’t you? You signed this truthful statement there that you did not seek employment?

Claimant: No, I didn’t say that, ’cause they didn’t ask that question.

Referee : There it is right on there, ma’am. You read it yourself. I’ve read it 3 times. Claimant: The first time (inaudible) like you said it.

Referee : You signed it.

* * * * * *

Williams [an “aide” from New Orleans Legal Assistance Corporation]: Mr. Kern, did you notice in that statement how it shifts from the first sentence to the second. The first sentence clearly stating that I am able and available for summer employment. See this first sentence?

Referee: I understand. I read that.

Williams: Then it goes into a reverse and says I did not seek employment because no one will hire—

Referee: Mrs. Benward, I want you to read that last sentence there, please, ma’am.

Claimant: Aloud?

Referee: Yes, read it aloud onto the record.

Claimant: I am able and available—

Referee : That’s not the last sentence.

Claimant: No one will hire—

Referee: No, that’s not the beginning of the last sentence.

Claimant: I did not seek employment, because no one will hire anyone over 65 years of age. I did not say that.

Referee: Why did you sign it, ma’am? That’s what I want to know. Why did you sign an untrue statement?

Claimant: I said I didn’t even remember seeing that at the top.

Referee: So you’re saying you signed it without reading it.

Claimant: I didn’t remember seeing it up there.

Referee: Are you saying a statement was put on there after you signed your signature to [it?]

Claimant: I’m not saying that.

Referee: How could you possibly not see it, Mrs. Benward? You see it now.

Claimant: I read it now.

Referee: Is that a reason why you didn’t read it back there (inaudible)?

Claimant: I would’ve done justice — why would I say I’m not seeking employment because I’m 65 when I say I’m available for work.

Referee: That’s what I want to know, ma’am. Why did you sign a statement that had that on that? That’s exactly the question I’ve been trying to elicit from you. Why did you sign it? An educated person like yourself. That’s the problem we’re facing here. You signed the statement. In fact, you signed 2 different statements, you see, limiting your availability. This second statement right here. This question. What type of work will you accept only part-time work? Then you signed another statement, a separate and distinct statement on another form altogether saying I did not seek employment because no one will hire anyone over 65 years of age.

* * * * * *

Referee : . . . Anything else you want to say about the availability during the summer of ’76 before we close?

Claimant: Yes, I did go look for work during the summer of ’76. I did go to look for work even after the—

Referee: I want you to understand again you’re saying here under oath that you sought work during the summer of ’76 and that is in direct conflict with the statement you gave here and you signed on August 31st ’76. We have that in the record. A conflict in the testimony. Anything else, Mrs. Benward?

******

Claimant: No.


author: SCHOTT, Judge.

text:
    Gerald WIENER v. Terry M. ANDERSON, d/b/a Design Build Homes.
    No. 10012.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 10, 1979.
    Rehearing Denied May 17, 1979.

      Fine & Waltzer, Bruce C. Waltzer, New Orleans, for plaintiff-appellee.
    Landwehr & Foley, Ronald J. Hof, New Orleans, for defendant-appellant.
    Before REDMANN, BOUTALL and SCHOTT, JJ.
   SCHOTT, Judge.

Plaintiff and defendant entered into a building contract on March 15, 1977, under which defendant was to construct an addition to plaintiff’s home in New Orleans for the sum of $15,394. On October 18, 1977, plaintiff and defendant entered into an arbitration agreement in which they acknowledged the existence of a dispute concerning performance of the contract, and agreed to arbitration under the auspices of the Better Business Bureau of Greater New Orleans Area, Inc. The arbitration agreement contained the following provision:

“Consumer seeks reimbursement for all monies paid. Merchant seeks payment of unpaid monies and wishes to limit consumer remedy to specific performance, with a monetary value only in case of default. Arbitrator shall have all powers legal and equitable, entitled by law and specifically shall have the power to determine performance of the arbitration award.” (Emphasis supplied)

On March 17, 1978, the arbitrator made his award terminating the contract between the parties and awarding plaintiff $7,443.42 against defendant, to be paid within 30 days of the date of the award and for attorney’s fees and court costs in the event of a default on the part of either party.

On April 24, 1978, plaintiff filed suit to homologate the award and prayed for judgment in that amount together with attorney’s fees. On May 10, 1978, defendant filed a motion to vacate the award. The trial court confirmed the award and also awarded plaintiff an attorney’s fee in the amount of $3500, and defendant has appealed.

In this court defendant contests the award of $7443 on the ground that it is grossly irrational and he contests the award of attorney’s fees on the ground that the arbitrator exceeded his powers in making the award.

In order to vacate the award, defendant must rely on the following provisions of R.S. 9:4210:

“In any of the following cases the court in and for the parish wherein the award was made shall issue an order vacating the award upon the application of any party to the arbitration.
“A. Where the award was procured by Corruption, fraud, or undue means.
“B. Where there was evident partiality or corruption on the part of the arbitrators or any of them.
“C. Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy, or of any other misbehavior by which the rights of any party have been prejudiced.
“D. Where the arbitrators exceeded their powers or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.
“Where an award is vacated and the time within which the agreement required the award to be made has not expired, the court may, in its discretion, direct a rehearing by the arbitrators.”

Defendant bases his case on the same theory as was recognized by the Court of Appeal in Firmin v. Garber, 343 So.2d 245 (La.App. 1st Cir. 1977) reversed by the Supreme Court in 353 So.2d 975. The Court of Appeal had found that the arbitrator’s award was “so grossly irrational as to be tantamount to ‘undue means’ and ‘evident partiality’ and must be vacated.” Reversing, the Supreme Court recognized that the arbitrator’s award was debatable but held that misconduct and partiality are not to be attributed to an arbitrator solely because a different award could be sustained. The same result obtains in the instant case.

Unlike most arbitration matters, in the instant case the arbitrator at the request of defendant gave detailed reasons for his award. He found that the addition to plaintiff’s house was constructed so poorly and contained so many major defects and deficiencies as well as minor flaws that the only remedy was major reconstruction of the addition. The contract price had been $15,394 but plaintiff had paid defendant a total of $10,443.42. The arbitrator found that in the reconstruction process plaintiff would be left with salvageable materials worth $3,000, so the award was for the difference between what plaintiff had paid and the value he had to show for that payment. No legal basis exists nor has any been suggested for this court to tamper with the factual conclusions of the arbitrator. Defendant’s argument on irrationability presumes that it is entitled to be paid for substantial completion, while the arbitrator’s evident conclusion was that there was no substantial completion. We find the award to be quite reasonable. We see no merit to the contention that the award was grossly irrational.

As to the award of attorney’s fees, defendant’s position has merit. Under our law attorney’s fees are not recoverable in the absence of a statute or a contract. In the instant case the building contract did not provide for attorney’s fees, and plaintiff has cited no statutes as his authority.

However, plaintiff relies on the language of the arbitration agreement referred to at the beginning of this opinion, and contends that the arbitrator’s 30 day deadline for payment in his award was pursuant to the provision in the arbitration agreement which conferred on him the power to determine performance of the award.

The Louisiana Arbitration law confers various procedural rights and remedies on the parties to an arbitration. Within one year after an award is made a party may move to confirm the award. R.S. 9:4209. The party likewise has the right to move the court to vacate an arbitrator’s award, §§ 4210 and 4211. If the argument of plaintiff were accepted the result would be to interfere with the basic rights conferred on the defendant in this case by the arbitration law. The award in question is tantamount to a penalty on defendant for exercising the right to minimal judicial review which is granted him by the statute. Such a provision seems contrary to the public policy of this state as expressed in Art. 1, § 22, of the Louisiana Constitution of 1974.

Accordingly, the judgment appealed from is affirmed but is amended to delete the award to plaintiff of $3500 attorney’s fees.

AFFIRMED AND AMENDED.


text:
    Percy E. PARKER v. FREEPORT SULPHUR COMPANY et al.
    No. 10070.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 10, 1979.

      Kenneth V. Ward, New Orleans, for plaintiff.
    Claude D. Vasser, Jones, Walker, Wae-chter, Poitevent, Carrere & Denegre, New Orleans, for defendants.
    Before REDMANN, LEMMON and GARRISON, JJ.
   REDMANN, Judge.

Defendants appeal from a judgment for workmen’s compensation benefits to plaintiff for total and permanent disability.

Defendants first complaint is procedural: after having ruled to the contrary at pre-trial, the trial judge at the end of trial decided to hold the case open to await a laminectomy and discectomy and testimony on the surgical findings. We see no substantive fairness issue. Defendants’ complaint is only that the rules were changed while the “game” was being played; defendants do not show that the original ruling by the trial judge was the correct one or that the later change in the ruling prejudiced defendants in any way.

Defendants’ second complaint is substantive. Five orthopedic surgeons and one neurologist testified, and five of those doctors, including one appointed by the trial judge as his own expert, gave testimony that would more easily support an opposite conclusion than that reached by the trial judge.

From August 6,1975, the date of the first medical examination testified about, through intermediate examinations and even past the February 27,1978 trial, plaintiff had no objective signs of any injury or any back problem, all orthopedic tests were negative, and, more important, plaintiff was voluntarily limiting his straight leg raising ability when he knew it was being tested — an ability that he demonstrated he possessed in full when sitting or supine. This inconsistency on plaintiff’s part continued until past trial, held open for a report on then-scheduled surgery and for testimony from the court-appointed expert. The court’s expert gave a report substantially the same as others.

Yet plaintiff’s good faith and belief in his symptoms can hardly be denied: he underwent spinal surgery to obtain relief. It is established by Dr. Cracco’s testimony after surgery that plaintiff (aged 35) had a degenerative disc condition, notwithstanding that none of the other orthopedic surgeons would have operated. True, the question is not whether plaintiff had a disc condition, but whether the industrial accident of June 27, 1975 permanently disabled plaintiff by making the formerly asymptomatic condition symptomatic. The overwhelming preponderance of the medical evidence is that the accident had no such effect: that plaintiff’s complaints of pain on movement such as straight leg raising were demonstrated to be not attributable to any disc condition.

The court’s expert did state the plaintiff’s “guarding” against certain movements could have been not conscious, a result of anticipation of pain that, at some earlier time, those movements may have produced. That expert opined that no treatment would help plaintiff because three years had produced no improvement. He added that if surgery revealed

a huge bulging disc — which would be a total surprise because there is nothing here that would make you think of that— if he had that, then I think I’m wrong; most of the doctors that saw him are wrong, and his chances of recovery are pretty good. But I, personally, just don’t feel that that is what you would find, and I personally don’t feel his recovery rate would be good. But, if you would find herniated fragments on a nerve root and you took that out, you would enhance his recovery chances .

Nevertheless that expert offered some, if slight, support for the court’s judgment in that he refused to rule out the subjective validity of plaintiff’s complaint:

Q. In any event, if this incompetent disc was producing the symptoms that this man complained of, don’t you think you would have found them in your examination?
A. Not necessarily. An incompetent disc can cause pain under stressful conditions, and under non-stressful conditions in examining a patient in the office, you won’t have findings. I have private patients that I know have a bad disc space, no nerveroot irritation, and sometimes I find findings, and other times I don't. So, I don’t think I can answer that to the extent that you would like an answer. I mean, his physical examination, as was brought out by me, there was exaggerations, I felt, and overreaction, and I would have to say his examination, objectively, was totally normal. Subjectively, it was likely normal, but I couldn’t really say.

Dr. Cracco, who first saw plaintiff in June 1976, about a year after the accident, found objective evidence in the circumstance that one disc accepted a full cubic centimeter of dye for a discogram and in what he described as the consistency of plaintiff’s complaints on movement. He also found at surgery a degenerated but not ruptured disc. Because trial closed two weeks after surgery he could not then say whether the surgery solved plaintiff’s complaints. He attributed plaintiff’s complaints to an aggravation of the disc condition resulting from the June 1975 accident because the complaints were continual (he was informed) since then.

We sympathize with defense counsel’s feeling that the trial court ruled against the great weight of the medical evidence, yet we believe the trial judge correctly viewed that evidence as not irreconcilably in conflict with his ruling. The last quotation from the court’s expert concedes the possibility of the genuineness of plaintiff’s subjective symptoms, despite exaggeration and overreaction. Dr. Cracco’s testimony, too, is not irreconcilable with the others: he, too, proceeded reluctantly with further testing because (until the discogram) he found no objective justification for plaintiff’s complaints.

Considering both the requirement of liberal construction and the fact that the case can be reopened for a redetermination of disability should the operation have affected it, we conclude that under the pertinent standards of review the judgment appealed from must be affirmed.

Affirmed.


author: BOUTALL, Judge.

text:
    ALEXANDER & ALEXANDER, INC. v. Richard H. SIMPSON.
    No. 10079.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 10, 1979.
    Writ Refused June 1, 1979.
    John J. Weigel, Madeleine Fischer, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for plaintiff-appellant.
    George V. Baus, Philip A. Franco, Adams & Reese, New Orleans, for defendant-appel-lee.
    Before REDMANN, BOUTALL and SCHOTT, JJ.
   BOUTALL, Judge.

This is a case involving a non-competition employment contract.

The facts are these: Richard Simpson, appellee, was hired by Alexander & Alexander, Inc. appellants, to work as manager of their commercial property department. He was later reassigned to the position of Assistant Account Executive. In order to continue employment at A & A, appellee was asked to sign a restrictive employment agreement and did so in 1976. In 1978, appellee was asked to resign and did. He subsequently went to work for another company engaged in the same business where he made contact with some of the accounts he had served with A & A.

A & A brought this suit to enjoin Simpson from violating the agreement between the parties. Simpson defended on the ground that the agreement was in violation of Louisiana Law. The trial court rendered judgment denying the injunction and declaring the agreement null and void. It is from this decision that A & A takes this appeal.

The agreement in question provides in pertinent part:

“It is agreed that if your employment with A & A should terminate for any reason, you will not, for a period of two years after the date of such termination of your employment, . . . solicit, sell to, divert, serve, accept or receive insurance agency, brokerage, or a consulting business . . . from any customer or active prospect of A & A, which you personally alone, or in combination with others, handle, service or solicit, at any time during the two (2) years, immediately preceding termination of your employment.”

The trial judge found that this agreement violated Louisiana Revised Statute 23:921 which provides:

“No employer shall require or direct any employee to enter into any contract whereby the employee agrees not to engage in any competing business for himself, or as the employee of another, upon the termination of his contract of employment with such employer, and all such contracts, or provisions thereof containing such agreement shall be null and unenforceable in any court, provided that in those cases where the employer incurs an expense in the training of the employee or incurs an expense in the advertisement of the business that the employer is engaged in, then in that event it shall be permissible for the employer and employee to enter into a voluntary contract and agreement whereby the employee is permitted to agree and bind himself that at the termination of his or her employment that said employee will not enter into the same business that employer is engaged over the same route or in the same territory for a period of two years.”

The court found that this case did not fit into the exceptions set out in the statute since A & A did not invest substantial sums in special training for Simpson, nor did it advertise his connections with the business. Our review of the testimony reveals no manifest error in this factual finding. See Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Appellants’ main contention is that the statute prohibits only agreement not to compete in the same business and that the prohibition was not intended to be so broad as to include non-solicitation agreements. In Orkin Exterminating Company v. Broussard, 346 So.2d 1274 (La.App. 3rd Cir. 1977, Writ denied 350 So.2d 902 (1977)), the Third Circuit found no distinction between non-competition and non-solicitation agreements and held that restrictive agreements are unenforceable unless the statutory proviso applies.

We agree with this decision. An examination of the wording of the statute confirms this position by use of the word “any” before “competing business”. This phrasing convinces us that the prohibition was intended to be broad enough to include not only the operation of a similar business, but also all components of the business operation, such as solicitation of customers. Solicitation of business is certainly a part of competition. The agreement would even prohibit accepting any business that may be voluntarily offered by past clients, although appellant does not contend for this on appeal. We therefore agree with the trial judge that the agreement in this case is null and unenforceable under Louisiana Law.

For the above reasons, the judgment of the trial court dismissing the suit is affirmed.

AFFIRMED.


author: GULOTTA, Judge.

text:
    Albert MARTIN, Sr. v. HOLZER SHEET METAL WORKS, INC. and Argonaut Insurance Companies.
    No. 10115.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 10, 1979.
    Writ Granted June 1, 1979.
    John P. Campbell, for plaintiff-appel-lee.
    Carlos E. Lazarus, Jr., Houma, for defendants-appellants.
    Before LEMMON, GULOTTA and STOULIG, JJ.
   GULOTTA, Judge.

For the reasons assigned in the denial of plaintiff’s motion to dismiss defendant’s appeal in Martin v. Holzer Sheet Metal Works, Inc., 363 So.2d 544 (La.App. 4th Cir. 1978), writs denied, 365 So.2d 825 (La.1978), the judgment of the trial court dated July 14, 1978, based upon a purported compromise and settlement but not acquiesced in by defendant, is recalled, rescinded and set aside. The matter is remanded to the trial court for further proceedings consistent herewith. Judgment rescinded, recalled, set aside and remanded.

RESCINDED, RECALLED, SET ASIDE and REMANDED.


author: LEMMON, Judge.

text:
    Tom SULLIVAN v. HOOKER CHEMICAL COMPANY et al.
    No. 10127.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 10, 1979.

      Badeaux, Discon, Cumberland & Barbier, J. Michael Cumberland, New Orleans, for plaintiff-appellant.
    Normann & Normann, Russell M. Cornelius, New Orleans, for defendant-appellee Hooker Chemical Co.
    Hammett, Leake, Hammett, Hulse & Nelson, Dominic J. Gianna, New Orleans, for defendant-appellee George Moran.
    Donovan & Lawler, Christopher E. Lawler, Metairie, for defendant-appellee Atlas Erection Co.

      Drury & Lozes, James H. Drury and Steven M. Lozes, New Orleans, for defendant-appellee Giambelluca Const. Co.
    Before LEMMON, GULOTTA and STOULIG, JJ.
   LEMMON, Judge.

In this automobile accident case plaintiff has appealed from a judgment dismissing his tort suit on the basis of contributory negligence. The principal issues on appeal involve determinations of the reasonableness of the conduct of plaintiff and all defendants under the circumstances shown.

Facts

Plaintiff, an ironworker employed by Atlas Erection Company, was injured in a vehicular collision inside of the Hooker Chemical Company industrial plant. On the day of the accident there were seven Atlas employees working at the construction site on the plant. After completing their work for the day, plaintiff and two co-employees, as was their usual custom, climbed onto the rear bumper platform of the first of two company pickup trucks that were traveling to the parking lot, which was about one-fourth mile from their work area. The truck, driven by plaintiff’s foreman, proceeded a short distance and then executed a 90 ° left turn onto the shell road that led to the parking lot. Prior to executing the turn, the driver’s view of the exit road had been obstructed by a building on the corner, and when the driver made the turn he saw a piece of heavy machinery excavating a ditch across the road ahead. The driver thereupon brought the truck to a gradual stop about 50 to 75 feet beyond the turn and about 60 to 70 yards before the excavation. As he looked to the rear preparatory to backing up, the second company truck, driven by defendant George Moran, struck the rear of the truck on which plaintiff was riding.

Plaintiff filed this suit against Moran and also joined Hooker and its contractor, Giam-belluca Construction Company, alleging that the latter in performing the excavation had negligently failed to provide warnings at the blind corner where both vehicles had executed the left turn.

After trial on the merits the court found that Moran was the only negligent defendant, but that plaintiff’s recovery against Moran was barred by his contributory negligence. The court also denied Hooker’s third party demand against Atlas for the amount of attorney’s fees it incurred after the latter refused to provide a defense.

Moran’s Liability

Under the evidence most consistent with the trial court’s factual findings, Moran ran into the rear of a vehicle which had braked to a gradual stop at a point 50 to 75 feet after the turn at the blind corner. At his estimated speed of five miles per hour (seven feet per second) Moran traveled from 7 to 11 seconds after he turned the corner and before impact. These circumstances support the trial court’s finding that Moran was negligent in following too closely and in not keeping a proper lookout.

Negligence of Hooker and Giambelluca

Plaintiff (and Moran by third party demand) asserts that Giambelluca was negligent in failing to provide warning of its excavation to motorists turning the blind corner and that Hooker was liable for the hazardous condition thus existing on its premises and for its negligence in failing to supervise the contractor’s operations.

The evidence most favorable to Gi-ambelluca established that the plainly visible heavy equipment was in the process of excavating across the roadway at a point between 77 and 95 yards from the point where the trucks executed the blind turn onto the road leading to the parking lot. Furthermore, the speed limit on the Hooker plant was ten miles per hour. Under these overall circumstances there was no duty on Giambelluca or Hooker to warn of the excavation work in progress, since a motorist exercising ordinary care had ample stopping room after observing the excavation.

Plaintiff contends, however, that the absence of a warning before the turn necessitated a stop by a vehicle after making the turn and thus caused the creation of a hazardous obstruction in the roadway for following vehicles.

Whatever the merits of that argument would be if the collision had occurred immediately after the turn, the collision in this case occurred some 50 to 75 feet beyond the turn, at which point the stopped vehicle did not constitute a hazardous obstruction to following motorists. Accordingly, any failure by Giambelluca to provide warnings did not create a hazard which caused this accident.

The demands by plaintiff and Moran against both of these defendants were properly dismissed.

Plaintiff’s Contributory Negligence

Defendants contend plaintiff was contrib-utorily negligent in riding on the rear bumper of the truck, when he could have ridden in the bed or the cab of either truck.

Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, the standard being that of a reasonable man under like circumstances. Smolinski v. Taulli, 276 So.2d 286 (La.1973). Arguably it was not unreasonable for plaintiff to ride on an eight-inch wide bumper, with a handhold on an overhead pipe rack, for a short distance in an industrial plant with a minimal amount of vehicular traffic limited to low speeds. Nevertheless, if any duty of reasonable self care was violated by riding on the wide bumper, the duty not to ride on the bumper perhaps encompasses the risk of falling off the truck, but does not encompass the risk that a motorist in another vehicle will drive so carelessly as to run into the back of the truck on which plaintiff was riding. Brantley v. Brown, 277 So.2d 141 (La.1973). Any duty not to ride on the rear bumper of a truck was simply not designed to protect against the risk encountered here.

The trial court recognized “that a person riding on the rear bumper of a truck assumes only such risks as are incidental to his position and that he does not assume the risk of . the negligent driving of another vehicle”. However, noting that plaintiff did not see or hear the Moran vehicle until the collision, the court held plaintiff contributorily negligent for not maintaining a lookout to the rear while riding in that position and for failing to utilize the time between the stop and the collision to remove himself from danger.

The burden of proving contributory negligence is on the party alleging the defense. Here, there were no circumstances shown which would give plaintiff any reason to anticipate negligent driving by Moran so as to require a lookout to the rear. Additionally, there is no indication that plaintiff had any meaningful opportunity to remove himself from danger after his truck stopped or that there was a clear method by which he could do so, even if he had been cognizant of Moran’s negligent driving and had had several additional seconds.

The law and the evidence in this case does not support a finding of contributory negligence.

Damages

Plaintiff, who was 58 years old at the time of the December, 1972 accident, sustained a comminuted fracture of the tibia, above the ankle. After a normal course of treatment by an orthopedic surgeon, plaintiff was discharged and returned to work as an ironworker in July, 1973, about eight months after the accident.

In April, 1975 plaintiff returned to the orthopedist with complaints of swelling after long periods of standing and of ulcers above his ankle. The doctor found no significant orthopedic problems and referred plaintiff to the clinic’s dermatology department.

The dermatologist diagnosed a stasis ulcer (one caused by poor venous return). Based on the history of a crushing injury to the area and the absence of indication of varicose veins, the doctor opined that the ulcer was causally related to the 1972 injury-

Plaintiff was treated with antibiotic cream and dressings. By September the ulcer was healed, and the doctor discharged plaintiff with instructions to wear supportive dressings to prevent swelling. The doctor further advised plaintiff to seek work which did not require constant standing and in which he could elevate his feet about twice a day for an hour, if possible.

Plaintiff suffered a recurrence of the ulcer in October, 1977, but did not return to the doctor after two visits that month. On April 10, 1978, the day of the doctor’s deposition for use at trial, he called plaintiff to inquire as to his current condition and was told that a small ulcer had just appeared.

As to permanency of the condition, the dermatologist stated that such ulcers are recurrent and are controlled by wrapping to keep down swelling. The vascular surgeon added that the likelihood of improvement is good for a venous ulcer (which the dermatologist had diagnosed), but poor for an arterial ulcer, noting that his definitive diagnosis had not been completed because of plaintiff’s cancelling of the testing.

The medical expenses (paid by the workmen’s compensation insurer, who intervened in these proceedings) were stipulated at $2,887.40. The only evidence as to plaintiff’s earnings were a statement that iron workers earned about $7.20 per hour in 1972 and $10.47 in 1978 and that plaintiff had been in that trade about 25 years.

Plaintiff had returned to work with Atlas after his discharge by the orthopedist in July, 1973. However, when he was advised by the dermatologist in mid-1975 to seek other employment which did not require prolonged standing, he quit his job with Atlas, and worked only for one brief period thereafter until the April, 1978 trial.

On the overall evidence we set the award for pain and suffering, medical expenses, loss of wages for eight months, and permanent impairment of earning capacity resulting from recurrent ulcers upon standing for long periods at $35,000.00.

Hooker’s Third Party Demand

When joined as a defendant, Hooker demanded that Atlas provide indemnity as required by the contract and take over its defense. Atlas refused, and Hooker filed a third party demand seeking this relief. On appeal Hooker seeks the amount it expended in attorney’s fees for its own defense.

Hooker concedes that the indemnity language of the contract does not require that Hooker be indemnified for damages caused by its own negligence. Hooker argues, however, that the damages here were caused by one or more of Atlas’ employees and that since Hooker could only be vicariously or technically liable, Atlas should have provided indemnity and a defense.

Plaintiff’s petition alleged Hooker was liable on the basis of its independent negligence and of its negligence or responsibility in relation to Giambelluca’s contractual operations. There was no allegation of liability asserted against Hooker in relation to Atlas’ contractual operations. Thus, unless the pleadings were expanded, Hooker could only have been found liable on the basis of its own negligence or that of Giambelluca.

There was no relationship whatsoever between the asserted basis for Hooker’s liability and the operations of Atlas as Hooker’s contractor. The contract terms provided for indemnity for Hooker’s liability for Atlas’ negligence, but not for Hooker’s own negligence or for Hooker’s liability for negligence of a third party. Under these circumstances neither indemnity nor defense was owed by Atlas.

Decree

The judgment of the trial court is reversed in part, and it is now ordered that judgment be rendered in favor of plaintiff Tom Sullivan and intervenor United States Fidelity & Guaranty Company and against George Moran in the amount of $35,000.00, plus interest from judicial demand until paid and all costs of these proceedings, with the amounts expended by the intervenor in compensation payments and medical expenses to be paid by preference and priority. In all other respects the judgment is affirmed.

REVERSED AND RENDERED IN PART, AFFIRMED IN PART.

      . There were several estimates of the pertinent distances. The distances used in the statement of facts are those most consistent with the trial court’s conclusions.

      . The consideration that plaintiff probably would not have been injured as he was if he had not been on the bumper is not determinative of contributory negligence, but only determines cause-in-fact. Every cause-in-fact does not produce legal liability. The critical determination is whether the pertinent risk is within the scope of the protection of the duty violated. See Robertson, Reason versus Rule in Louisiana Tort Law: Dialogues on Hill v. Lundin & Associates, Inc., [260 La. 542, 256 So.2d 620] 34 La.L.Rev. 1 (1973), footnote 47; Pierre v. Allstate Ins. Co., 257 La. 471, 242 So.2d 821 (1970), footnote 2.

      . The court was apparently referring to the following principle stated in Brantley v. Brown, above:
      “An outrider on a vehicle assumes only such risks as are ordinarily incident to his position. He does not assume the risk of negligent driving on the part of his driver, as he is ordinarily entitled to rely reasonably upon his driver’s exercise of ordinary care. He particularly does not assume the risk of the negligence of the driver of another vehicle which collides with that upon which he is riding”.

      . In November, 1974 plaintiff had consulted a vascular surgeon who found an ulcer, mild edema and tenderness. The doctor tentatively diagnosed a vascular ulcer, probably arterial (which is caused by lack of blood supply resulting from injury or occlusion of an artery). An-giographic testing was scheduled, but was subsequently cancelled by plaintiff.


text:
    Melvin C. JONES, Sr. v. ORLEANS PARISH SCHOOL BOARD and ABC Insurance Company.
    No. 10156.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 10, 1979.

      Keith A. Rodriguez, J. Browne Larose, III, New Orleans, for plaintiff-appellee.
    Jefferson, Bryan & Gray, Trevor G. Bryan, New Orleans, for Orleans Parish School Bd., defendant-appellant.
    Before LEMMON, GULOTTA and STOULIG, JJ.
   STOULIG, Judge.

Defendant, the Orleans Parish School Board, has appealed a judgment awarding plaintiff, Melvin C. Jones, Sr., workmen’s compensation benefits of $85 per week for 500 weeks, plus medical expenses for a back injury he sustained on March 4,1976 during the course of his employment as a teacher. At the time of injury he was attempting to break up a fight between two fifth grade students at McDonogh No. 39 School in New Orleans.

The trial court concluded plaintiff sustained a herniated disc when he was struck in the back by a desk being swung by one of the two fighting boys. Appellant seeks reversal claiming the trial court’s factual conclusions are manifestly erroneous in that (1) the lay testimony failed to prove plaintiff was hit by the desk as he claims, and (2) that the lumbar disc problem was in fact caused by the accident in school.

To reverse the trial court’s finding of fact, we must conclude the result is manifestly erroneous. Todero v. Great Atl. & Pac. Tea Co., Inc., 343 So.2d 388 (La.App. 4th Cir. 1977).

With respect to the blow from the desk, plaintiff testified he was teaching his sixth grade class when a student from the adjacent classroom rushed into his room and asked him to come to the fifth grade to break up a fight. He and a student teacher, Charles Block, who was present in plaintiff’s class at the time, found two boys fighting when they arrived on the scene. After separating them, one boy threw a book at young Robert Bragg, who then grabbed a desk and swung it. To avoid being hit in the face, plaintiff raised his left arm to protect himself and twisted away; however, the desk hit him on his arm and along his back. Bragg at the same time kicked him in the leg. Mrs. Lolita Cherrie, the teacher in whose room the fight erupted, first stated she watched the whole fight and did not see the desk hit plaintiff. Later she admitted she was not asserting the plaintiff was not hit by the desk but rather that she did not see the blow.

Mrs. Cherrie was not a disinterested witness in that she was named defendant in another lawsuit filed by the plaintiff, as will appear from a deposition filed in evidence in this matter. In dictated reasons for judgment the trial judge stated he was not impressed with this witness who asserted she called plaintiff into her room simply to witness the fight, not to break it up. While we do not expect Mrs. Cherrie to risk bodily injury to break up a fight, we find her motive for calling plaintiff as a corroborating witness rather than as a peacemaker lacking the degree of responsibility that teachers have toward their students. A finding that plaintiff was struck by the desk on the back is not clearly wrong.

As to the disability issue, the medical evidence establishes plaintiff is suffering from a herniated lumbar disc. The issue here is whether the accident of March 4, 1976 caused the back injury or aggravated a pre-existing condition to a disabling point.

Plaintiff retired on June 1, 1976 after 20 years as a teacher. Defendant points to this fact as supportive of its theory that plaintiff planned to retire before the fighting incident and the claim for workmen’s compensation was a post-incident afterthought.

Defendant called Dr. George Guild, a psychiatrist who had been treating plaintiff prior to the accident, to establish plaintiff frequently spoke of retiring as soon as he attained 20 years of experience. The doctor explained that at the end of 1974 plaintiff was depressed and disgruntled because violence in the schools had created an atmosphere detrimental to teaching and learning, which reduced his job to a custodial position. He characterized plaintiff as a “well-intentioned, devoted worker” who was disillusioned with the system.

From January 20, 1975 to May 30, 1975, plaintiff was granted a rest and recuperative sabbatical leave after teaching 18 years in the Lawless school. From September 1975 until the accident he taught at Mc-Donogh No. 39.

Defendant contends the claim was contrived; however, in retracing plaintiff’s actions after the accident, we find this contention meritless. Plaintiff consulted Dr. Claude Williams, a board certified orthopedist, on March 18,1976, at which time plaintiff explained, among other things, that he first felt excruciating pain in the lumbar region on March 12, 1976 when he stooped over in the shower. He did not mention the fight at school. However when he returned to Dr. Williams six days later, he did describe the fight incident.

Dr. Williams recommended hospitalization for conservative treatment, and when plaintiff informed him he could not afford it, he was referred to Touro Clinic where he could receive free medical service. On his initial visit on March 30, 1976, plaintiff did not state in his history that he was struck by a desk at school. He explained that he omitted telling of the incident for fear the clinic would not treat him because his income was too high. Plaintiff was moonlighting as a car salesman at Star Chrysler when he was not involved with school and both incomes in 1975 totaled $31,587.27. Because he had five children in college at the time, his expenses were staggering. When asked where he was employed, he gave the name of Star Chrysler and omitted the school so that he would qualify for free clinic treatment.

Perhaps his failure to relate the incident to either Dr. Williams or Dr. Boulos Bouz at the clinic would be entitled to greater significance if he had not initially complained of pain to his psychiatrist, at which time he recounted the school fight incident. This pre-dated the first visit to Dr. Williams, because it was Dr. Guild who referred plaintiff to Dr. Williams.

His condition was diagnosed by Dr. Williams as lumbosacral strain and a possible lumbar disc syndrome. As we understand the doctor’s testimony on the causal relationship between the fight and the disc problem, he stated, as positively as any medical witness will make any pronouncement, that the fight could have set up the disc for rupture, and the herniation could have occurred several days later with the bending motion in the shower.

Although questioned repeatedly by defense counsel if it was more likely that the shower incident independent of anything else caused the disc to herniate, Dr. Williams refused to subscribe to this theory.

Dr. Bouz, a resident, did state in his opinion the bending motion was more likely to have caused the disc than the fight, but he would not rule out the fight as a contributing factor. As did the trial court, we give greater weight to the opinion of the practicing orthopedist than that of the medical resident. We conclude the school fight is directly related to the disc problem, and the fact that plaintiff had back problems on several occasions prior to this fight does not change our opinion.

As to benefits, appellant correctly points out that plaintiff has not proved he is totally and permanently disabled from engaging in any gainful occupation for wages. Rather his benefits are determined by R.S. 23:1221, the permanent partial disability section of the act. The rate at which plaintiff is entitled to be compensated is as follows:

“(3) For injury producing partial disability of the employee to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience, sixty-six and two-thirds per centum of the difference between the wages the employee was earning at the time of the injury and any lesser wages which the injured employee actually earns in any week thereafter in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience, during the period of disability, but not beyond a maximum of four hundred weeks for such partial disability resulting from injury occurring on and after September 1, 1975, and on or before August 31, 1976 * * provided further that for any week during which the employee is paid any compensation under this subdivision (3) the employer shall be entitled to a reduction of one full week of compensation against the maximum number of weeks for which compensation is payable under this subdivision (3) and for any week during which the employee is paid no compensation, because of the employee’s actual earnings during that week, the employer shall not be entitled to a reduction for that week against the maximum number of weeks for which compensation is payable under this subdivision (3), and in no event shall the total number of weeks of compensation for such partial disability under this subdivision (3) be increased beyond the maximum number of weeks stated in this subdivision (3).”

Reading-the quoted section in conjunction with R.S. 23:1202, it would appear that at the time of plaintiff’s injury the two-thirds differential between the pre-in-jury earnings and the post-injury earnings could not exceed $85 because of the legislative limitation in this section. In considering the earning differential in this case, the court must use the sum of the salaries plaintiff earned from both jobs at the time of the incident, against which must be applied, on a weekly basis, all wages earned thereafter, to determine what compensation is in fact due. Were we to simply measure the school teaching salary against present earnings as a car salesman, we would unjustly penalize the plaintiff for moonlighting to pay his family expenses. The plaintiff’s income in 1975 was $31,587.27; in 1976, $19,151 and in 1977, $5,509.

Under the statute, compensation payments are due in those weeks when plaintiff’s salary did not equal or exceed his weekly earnings prior to the accident. Although annual totals are available in the record there is insufficient evidence before us to compute the amount of compensation due. In order to properly compute the benefits, the plaintiff must furnish a breakdown of wages by the week. As the act states, the employer is to be allowed a credit for each week any wages are earned, no matter how small or how large the amount.

In computing post-accident earnings and benefits to which plaintiff is entitled, his pension should not be taken into consideration. Accordingly, we remand this matter for the limited purpose of permitting the litigants to adduce evidence as to plaintiff’s weekly earnings after the accident so that his benefits may be computed.

For the reasons assigned, the judgment appealed from is vacated insofar as it awards compensation benefits at the rate of $85 per week for 500 weeks and remanded for further proceedings to determine plaintiff’s entitlement to benefits for a period not to exceed 400 weeks. In all other respects the judgment appealed from is affirmed.

AFFIRMED IN PART AND REMANDED.