author: LEMMON, Judge. REDMANN, Judge GULOTTA, Judge

text:
    Mark D. DUFFY v. George E. THROWBRIDGE and Allstate Insurance Company.
    No. 7137.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1976.
    Rehearing Denied March 16, 1976.
    Writ Granted May 11, 1976.

      Steven R. Plotkin, New Orleans, for plaintiff-appellee.
    Drury, Lozes & Curry, New Orleans (Felicien P. Lozes and Madison C. Moseley, New Orleans), for defendants-appellants.
    Before SAMUEL, REDMANN, LEM-MON, GULOTTA and STOULIG, JJ.
   LEMMON, Judge.

In this appeal by defendants from a judgment awarding plaintiff damages for personal injuries incurred in a rear end collision, the sole issue is whether the trial judge in the assessment of damages abused the much discretion accorded him by C.C. art. 1934(3). We hold that he did and set aside the award.

In the December 2, 1972 accident plaintiff, a 27-year old policeman, sustained a mild cerebral concussion and a cervical, thoracic and lumbosacral sprain, as diagnosed by Dr. Dominick Condie, a general surgeon and the staff doctor for the police department. The doctor prescribed muscle relaxants, sedation and physiotherapy. By late January plaintiff’s principal complaints involved only his neck. On February 2, 1973 plaintiff had shown marked improvement and was allowed to return to work, since he complained of pain only after activity which placed a strain on his neck.

On May 23, 1973 plaintiff returned, complaining of muscle fatigue. Dr. Condie found slight tenderness and motion loss in the neck area and crepitation upon certain neck movements. Between the May, 1973 visit and the first day of trial (September, 1974) plaintiff did not seek further medical attention about the neck condition, although he did consult Dr. Condie twice about unrelated problems.

On the first day of trial Dr. Condie had additional X-rays taken, and he testified as to the radiologist’s report of “beginning narrowing of the posterior aspect of the fourth interspace with early hypertrophic spurring posteriorly.” At this point defendants moved for and were granted a continuance in order to allow adequate time for preparation of rebuttal to this new evidence.

At the second day of trial three weeks later each side presented radiologists, who disagreed as to whether the 1974 X-rays demonstrated minimal spurring or excess bone formation, with minimal encroachment on the foramina. They agreed, however, that the very minimal narrowing shown in the 1974 X-rays was present to the same degree in the 1972 X-rays and the condition therefore pre-existed the 1972 injury.

Dr. Eugene Dabazies, an orthopedic surgeon who examined plaintiff and both sets of X-rays, agreed that the narrowing, if any existed, predated both X-rays and had not changed during the two years between films. As to spurring, he considered the X-rays to be within normal limits, but for purposes of argument stated that if spurring could be reasonably interpreted from the X-rays, it was so small as to be insignificant from an orthopedic standpoint. He observed that any spurring could be the result of trauma, or of natural progression of the degenerative process, already influenced by the narrowing in the same area, or of a speedup of the progression secondary to trauma.

Dr. Dabazies further testified that his examination revealed only tenderness upon palpation of the trapezius muscle and crep-itation, which he attributed to a snapping of the small facet joints and which he categorized as a non-pathological finding, not found in the average individual, but of no significance. He opined that plaintiff was over the acute effects of his injury and that his complaints should diminish with time.

On the other hand, Dr. Condie opined that the crepitation indicated abnormal changes in the neck, probably post-traumatic arthritis, which diagnosis was confirmed by the narrowing and spurring shown in the 1974 X-rays. He estimated a 10 to 20% disability of the neck which was likely to worsen with age.

One of the radiologists admitted, furthermore, that spurring may or may not cause pain and that the clinician who performed a complete examination was in a better position to determine whether the spurring was causing problems than a radiologist who simply interprets X-rays.

The trial judge .found that plaintiff was still suffering at time of trial and that the evidence of-spurring justified his continued complaints. In awarding $40,000.00, plus undisputed loss of wages for the two months following the accident, the judge conceded error if the reviewing court concluded the evidence supported only a finding of a two-month whiplash.

The evidence, while indicating a more severe injury than a cervical sprain of short duration, does not support an award of $40,000.00. Plaintiff had incurred a cervical injury in 1968 (at which time the X-rays revealed no narrowing) and had admitted then that he had suffered earlier difficulty with similar symptoms. The slight narrowing developed thereafter, but prior to the 1972 accident, and had not changed two years later. Furthermore, the only orthopedic specialist who testified attributed no significance to any narrowing or spurring shown on the X-rays, in the absence of any other clinical signs of nerve root involvement. And the radiologists admitted that the X-rays (which they simply interpret) are only one of the diagnostic tools used by clinicians in determining the overall picture.

The evidence presented in this case supports a conclusion that plaintiff sustained a cervical sprain which substantially resolved in two months, but which did cause persistent, non-acute symptoms secondary to the aggravation of a pre-existing degenerative condition. The likelihood of worsening was not established by preponderating proof. On this evidence we fix the award of general damages at $10,000.00.

Accordingly, the judgment of the trial court is amended to decrease the amount of the judgment to $12,030.96. As amended, the judgment is affirmed.

Amended and affirmed.

REDMANN, Judge

(dissenting in part):

This admittedly injured plaintiff set out to perpetrate a fraud on the defendants and on the courts, claiming that a startling neck-cracking noise was the result of this accident when medical records prove it long pre-existed the accident. One may give Dr. Condie the benefit of the doubt despite his own records’ proof of the condition’s pre-existence. But one cannot suppose that plaintiff himself “forgot” his astounding trick-neck ability. Plaintiff knowingly added a fake claim to his legitimate one — making all of his testimony suspect.

The legitimate claim is for a relatively mild and short-lived injury, as the majority opinion shows. General damages should be reduced from $40,000 not to $10,000 but to $2,000 (and the patently excessive expert fees should also be reduced).

GULOTTA, Judge

(dissenting in part).

I concur with the conclusion reached by the majority that the general damage award should be reduced, but disagree with the extent of the reduction. I am of the opinion that a $20,000.00 general damage award is proper.

Plaintiff sustained injury to the neck, shoulder, back and a mild concussion and abrasion as a result of a rear-end collision while he was seated in a stopped police vehicle. Immediately after the accident, Duffy was taken to Methodist Hospital where x-rays were taken, a surgical collar was applied, medication for pain and muscle relaxants were prescribed. Thereafter, he was released.

Dr. Dominick Condie initially examined plaintiff on December 4, 1972. Plaintiff’s condition was diagnosed as a cerebral concussion and a cervical-thoracic and lumbo-sacral sprain of the back. Dr. Condie found severe muscle spasm causing a twisting of the spine, defined as scoliosis. Muscle relaxants, sedatives and pain relievers were prescribed. Diathermy and physiotherapy treatments were administered 26 times between December 4, 1972 and February 2, 1973. Neck traction was applied.

Muscle spasm and tenderness in the area of the neck were found on December 8 and December 13 visits. Examinations during late January and on February 2, 1973, indicated some improvement, but plaintiff continued to complain of neck pain which worsened with strenuous activity. Plaintiff was not seen again by Dr. Condie until May 23, 1973, at which time Duffy complained of muscle fatigue and neck discomfort. The doctor found crepitation (a cracking sound occurring with rotation of plaintiff’s head) and a slight tenderness along the neck muscles. Dr. Condie’s examination of plaintiff and a comparison of x-rays taken on the date of the accident and on September 30, 1974, revealed that plaintiff had developed a narrowing of the posterior aspect of the fourth interspace and spurring (excess bone formation). According to the doctor, it was not normal for a 27 year old male, such as plaintiff, to have these types of x-ray changes. The narrowing and spurring indicated plaintiff had developed an arthritic condition as a result of the trauma. Dr. Condie related continued discomfort to post-arthritic changes caused by trauma from the accident. The doctor was of the opinion that the existing arthritic changes would become progressive and that a possibility existed of further difficulty or surgery. Additionally, he stated plaintiff would continue to suffer pain in the future, extending from mild discomfort to severe pain. The doctor assessed a 10% to 20% permanent disability of the neck.

Dr. Henry M. Duhe, a radiologist, who had taken x-rays of Duffy’s cervical and lumbosacral spine on June 14, 1968, did not find any spurring or narrowing of the cervical spine at that time. X-rays taken on September 30, 1974, revealed narrowing between the fourth interspace with minimal spurring. Based on examination of the December, 1972 x-rays, Dr. Duhe was of the opinion that the accident did not cause the narrowing but could have caused the spurring which Dr. Duhe stated could be classified as traumatic arthritis. According to Dr. Duhe, the spurring build-up, resulting in pressure on the nerve, could produce pain. He indicated this is a permanent process.

Examination of the 1972 x-rays by Dr. Lowell Hurwitz showed a narrowing of the C-4 and C-5 interspace as well as an indication of muscle spasm. His examination of the September 30, 1974 x-rays revealed some narrowing of the interspace and spurring. It is his opinion that the spurring was caused by the trauma from the 1972 accident. The doctor explained that plaintiff’s condition could progress and develop increased spurring or disc changes resulting in continuing discomfort.

Dr. Eugene Dabezies, an orthopedic surgeon, examined plaintiff on October 15, 1974. He also examined the 1972 and 1974 x-rays and concluded that there existed no significant spurring and no narrowing of the disc space. It was his opinion that plaintiff suffered a sprain of the cervical spine. He found some tenderness of the trapezius muscle. Dr. Dabezies concluded that Duffy did not have a degenerative process going on in the spine as a result of the accident. In addition, he did not think plaintiff would need further surgery and did not anticipate any deterioration in plaintiff’s condition that would necessitate any hospitalization. Dr. Dabezies saw no further need for medical treatment and did not discover any objective symptoms on which to base a disability rating.

Samuel J. Fury, plaintiff’s platoon commander, stated that upon Duffy’s return to police work after the accident, he complained of neck and back pain. According to Fury, approximately once a week or every two weeks, Duffy requested to be excused from work. Joseph Gallodoro, with whom Duffy worked for a three-month period between January and October, 1974, stated that plaintiff complained of neck pain and stiffness caused from driving a police vehicle. Duffy was assigned lighter police duty as a prevention against aggravation of his injury.

According to plaintiff, the injury has caused him to become irritable and moody, resulting in a changed disposition which contributed to the separation between himself and his wife.

Sharon Duffy, plaintiff’s wife, corroborated Duffy’s complaints of headaches, neck and back pain. She described plaintiff’s pain as severe, causing Duffy to become irritable and withdrawn.

Under the circumstances, I am led to a conclusion that a reduction to the sum of $10,000.00 for general damages is inadequate. Plaintiff’s injuries support a $20,000.00 award.

      . The three judges who originally heard the case agreed that the judgment should be set aside, but were unable to agree on the amount of damages to be assessed. The case was therefore reargued to a five-judge panel in accordance with La.Const.1974, Art. 5, § 8 (B).

      . The crepitation had been demonstrated by plaintiff in 1968 as a means of obtaining relief when Dr. Condie had treated him for a neck injury in a rear end collision, an injury significant enough for the doctor to recommend orthopedic consultation after initial treatment failed to achieve desired progress. Furthermore, plaintiff told Dr. Condie in 1968 that the symptoms were similar to a difficulty he had previously experienced.

      . This opinion was stated at the first day of trial before he was made aware that the narrowing and crepitation predated the injury.

      . As a result of an unrelated automobile accident, Dr. Condie had previously examined plaintiff in June, 1968, and had heard Duffy make the same cracking sound. I-Iowever, spurring was not present in 1968.


source: Caselaw Access Project

author: SAMUEL, Judge. LEMMON, Judge

license: Public Domain

text:
    Claire S. MACKBEE v. FORD MOTOR COMPANY et al.
    No. 7150.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 24, 1976.
    Rehearing Denied March 16, 1976.
    Writ Refused May 4, 1976.
    Maumus F. Claverie, Jr., New Orleans, for Claire S. Mackbee, plaintiff-appellant.
    Schumacher, McGlinchey, Stafford, Mintz & Hoffman, Dermot S. McGlinchey and C. G. Norwood, Jr., New Orleans, for Ford Motor Co., defendant-appellee.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, James R. Murrell, III, New Orleans, for Canal Motors, Inc., defendant-appellee.
    W. Marvin Hall, Jr., New Orleans, for Teleflex, Inc., defendant-appellee.
    Before SAMUEL, LEMMON and SCHOTT, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit against two defendants, Ford Motor Company, as manufacturer, and Canal Motors, Inc., as vendor, of her 1970 Ford automobile. She alleges she was injured when the car’s accelerator stuck and caused her to veer off the road into a pond or lagoon. Teleflex, Inc., the manufacturer of the accelerator linkage cable used in the automobile, was later added as a defendant. The three defendants answered, denying responsibility for the accident. In addition, Ford Motor Company and Canal Motors, Inc. filed third party petitions against each other seeking indemnity in the event of an adverse judgment.

After a trial on the merits, judgment was rendered in favor of all defendants, dismissing plaintiff’s suit. Plaintiff has appealed.

Plaintiff testified: She purchased a new 1970 Ford Maverick automobile from Canal Motors, Inc. on October 22, 1969. On December 8, 1969, at approximately 10 a. m., she began to drive toward Gulfport, Mississippi for a job interview scheduled for 11 a. m. As she approached the intersection of U. S. Highway 190 and U. S. Highway 90, she noticed a sign indicating the approach of the intersection, where she was required to bring her automobile to a stop. She slowed the automobile slightly, but accelerated again because there was still some distance to travel between the sign and the intersection. As she approached the intersection, she moved her foot from the accelerator, but the car did not slow down. As a result, she ran through the stop sign, made a wide left turn across U. S. Highway 90, and drove into a lagoon in a roadside park.

The configuration of the intersection in question is commonly called a “T” intersection. Highway 190 ends at its intersection with Highway 90, so that traffic approaching Highway 90 on Highway 190 must either turn right or left at the intersection. Plaintiff did neither and drove into the lagoon as stated above.

The automobile began to sink in the water, and plaintiff escaped by rolling down the window and swimming out. Mrs. Irene Brewster, a passing motorist (who was acquainted with the plaintiff) stopped, rendered assistance and remained with plaintiff from the time of the accident until they returned to the scene to talk to the investigating Louisiana state trooper. Meanwhile, two of plaintiff’s friends, Dr. and Mrs. Pursley, of Bay St. Louis, Mississippi, were contacted. Mrs. Pursley, Mrs. Brewster, and plaintiff returned to the accident scene, where plaintiff gave her statement to Trooper John Holcomb.

The record reflects that plaintiff did not mention the sticking accelerator to Mrs. Brewster, to Dr. Pursley, to Mrs. Pursley, or to Officer Holcomb. The absence of any such mention shortly after the accident is of obvious significance. Officer Holcomb testified plaintiff told him that when she realized she was at a stop sign she applied her brakes but could not stop.

Other than plaintiff’s own testimony, the only evidence to support her contention the accelerator stuck was the testimony of Wayne A. Benton, offered by plaintiff as an expert mechanic. Benton testified he examined the automobile at the premises of Brown’s Wrecker Service in Slidell, Louisiana, several days after the accident. At the time of his investigation, the mud, water, and debris which entered the car when it sank in the lagoon had not been removed. He merely reached into the automobile with his hand and pushed the accelerator down several times, without starting the engine. He testified he also looked under the dash board and under the hood. Benton testified that after a number of tries at pushing the accelerator down, it would stick for several seconds and then snap back into position. He expressed the opinion that the accelerator cable, which linked the accelerator pedal with the carburetor, was binding. He based his opinion only on certain “flexing” he observed in the cable. However, on cross examination he admitted that without total disas-sembly of the cable, he could not know why the sticking took place.

Ford Motor Company introduced the testimony of three persons in support of its contention that no defect existed in the automobile. A. D. Smith, Jr. and Ken Mitchell both inspected the automobile after the accident and found the accelerator cable working properly without any sticking or binding whatever. Of significance is the testimony of Kelly Talamo, who purchased the vehicle in suit after the accident. Mr. Talamo testified he checked the throttle system, it worked properly, and he had no reason whatever to replace the throttle cable.

There is little dispute regarding the legal principles involved in this case. In Weber v. Fidelity & Casualty Insurance Company, the Supreme Court enumerated the elements necessary for a plaintiff to prove in order to succeed in a suit of this nature. The plaintiff must prove: (1) a defect in the automobile; (2) the defect existed at the time the automobile was manufactured; (3) the defect rendered the automobile unreasonably dangerous; and (4) the defect caused the accident sued upon.

The only issues for the trial court’s decision were questions of fact, which he resolved in favor of the defendants by finding the negligence of plaintiff to be the sole cause of the accident. Considering the great weight afforded conclusions of a trier of fact in Louisiana when there is a necessity to reconcile conflicting evidence, the conclusion of the trial court in no way discloses any manifest error.

Equally important, however, is the vacillating nature of plaintiff’s testimony. She first testified she tried unsuccessfully to apply her brakes before running through the intersection. However, under cross examination she qualified her earlier testimony by stating “I think that I touched the brakes”. Finally, also on cross examination, she admitted “I didn’t apply the brakes. I let the car go through the highway.”

Moreover, the testimony of Benton, the expert witness offered by plaintiff, was completely disregarded by the trial court because he untruthfully represented his qualification as an expert. Benton testified he had expertise in physics, mathematics, and calculus which he gained in courses taken at George Peabody Teachers’ College, in Nashville, Tennessee. It was disclosed and stipulated by all parties that Benton never attended Peabody College and received no degrees therefrom. The disclosure occurred after Benton had been accepted as an expert witness and had completed his testimony.

We find the trial judge did not commit error by disregarding Benton’s testimony in its entirety. His perjury was directed to a material fact in the case, namely his qualification as an expert witness, and it is doubtful that, absent that perjury, he would have been accepted as an expert witness. In addition, the trial judge properly considered that perjury as it reflected on the witness’s credibility. Application of the rule falsus in uno, falsus in omnibus is a matter within the discretion of the trial judge, who may or may not reject the testimony of a lying witness in its entirety if the circumstances of the case indicate the false statement was on relevant or pertinent matters.

Under the circumstances, the trial judge was faced with evidence of doubtful credibility offered by plaintiff and credible, un-impeached evidence offered by defendants. We find no error in his conclusion.

For the reasons assigned, the judgment appealed from is affirmed.

Affirmed.

LEMMON, Judge

(concurring).

The trier of fact, as the majority opinion points out, may disregard the entire testimony of a witness when part of the witness’s testimony is shown to be false, but is not required to do so. See III Wig-more, Evidence § 1010 (3rd ed. 1940). While I would not completely discredit the qualifications and testimony of an expert mechanic who falsely, and irrelevantly) states that he has a master’s degree in education, the trier of fact has the discretion to do so, perhaps considering that a person who lies on an immaterial point will lie consistently and is more likely to give false testimony than a person who dares stray from the truth only on the point at issue.

In the present case, however, even a non-expert could testify that the accelerator stuck during testing, and such testimony (if accepted) is proof of a defect, whether or not the witness can explain why the accelerator stuck. Nevertheless, Benton’s testimony as to this testing (while the motor was off and the car was still covered with mud) did not preponderate over the testimony of the disinterested automobile repairman who bought the car and after cleaning it found no such defective condition, especially when that evidence is considered in the light of the inspection by Ford’s two experts and of plaintiff’s failure on the day of the accident to mention the sticking to the investigating officer or Mrs. Brewster or the Pursleys.

      . 259 La. 599, 250 So.2d 754.

      . See, e. g., Canter v. Koehring Company, 283 So.2d 716 (La.S.Ct.1973) ; May v. Finest Foods, Inc., La.App., 303 So.2d 192.

      . See, for example, Swann v. Holley, La.App., 263 So.2d 478.

      . Her assertion in argument that she didn’t know what caused the car to continue running was in direct contradiction to her testimony that she “tried to pull up on the accelerator with my right foot” during the ordeal.


author: LOTTINGER, Judge.

text:
    FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF CONCORDIA VIDALIA, Louisiana v. Clebert C. SMITH, in his capacity as Commissioner of Financial Institutions, State of Louisiana, and Monroe Building and Loan Association, Monroe, Louisiana.
    No. 10514.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.
    Rehearing Denied March 1, 1976.
    Writ Refused April 9, 1976.

      William L. Koerber, Vidalia, for appellant.
    B. Roy Liuzza, Monroe, for Monroe Building & Loan Assn.
    Carmack M. Blackmon, Baton Rouge, for Clebert C. Smith.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.

      . LSA-R.S. 49:951 et seq.

   LOTTINGER, Judge.

. This is a suit filed by the United Federal Savings & Loan Association, formerly known as First Federal Savings & Loan Association of Concordia (hereinafter sometimes referred to as UNI-FED) against Monroe Building & Loan Association (hereinafter sometimes referred to as MB&L) and Clebert C. Smith, as Commissioner of Financial Institutions for the State of Louisiana (hereinafter sometimes referred to as Commissioner) as defendants. The purpose of this suit is to annul the Commissioner’s approval of an application by MB&L to locate a branch in the municipality of Ferriday, Louisiana. The Lower Court rendered a judgment in favor of defendants dismissing the plaintiff’s suit, and the plaintiff has appealed.

Ferriday, Louisiana, which is located in Concordia Parish, is an incorporated municipality of about 5,500 residents. It is some nine miles from Vidalia, Louisiana,

On December 19, 1973, UNI-FED, which is domiciled in the town of Vidalia, Concordia Parish, Louisiana, applied for authority from the Federal Home Loan Bank Board to establish a branch office in Ferriday. This application was approved on February 21, 1974, and UNI-FED opened its Ferriday branch office on August 1, 1974.

On February 4, 1974, MB&L, which is domiciled in Monroe, Ouachita Parish, Louisiana, applied for authority from the Commissioner to establish its own branch in the town of Ferriday. On February 12, a representative of the Louisiana State Banking Department’s Savings & Loan Division orally notified UNI-FED of MB&L’s application, at which time UNI-FED orally registered its opposition. On February 18, 1974, representatives of UNI-FED delivered to the Commissioner their written opposition to MB&L’s application for a branch office in Ferriday, but they were advised that the application had already been approved on February 15, and that written notice thereof had already been mailed.

An exception of no right of action was filed by the defendants under the contention that under the provisions of LSA-R.S. 6:852(C) only associations actually in existence in the community where a branch is proposed to be established have a right to contest the Commissioner’s actions and that plaintiff, not being an association existing in the community of Ferriday at the time of the Commissioner’s ruling did not have a right to file this suit.

The Lower Court found the issues before the Court to be whether, under the Louisiana Administrative Procedures Act plaintiff was entitled to notice of and a formal hearing before the Commissioner on MB&L’s application; whether LSA-R. S. 6:852(C) is unconstitutional as a denial of due process and equal protection of the laws under the State and Federal Constitutions, and as an unlawful delegation of legislative authority; and whether the Commissioner’s determinations with respect to “undue injury” and “advisability”, under the provisions of LSA-R.S. 6:852(C), were arbitrary and capricious, and not supported by substantial evidence.

The Lower Court chose to decide the case on the merits rather than to consider the exception of no right of action and accordingly, the exception was overruled.

The plaintiff-appellant argues that the Trial Judge erred in holding that: (1) the Commissioner was not required to comply with the Louisiana Administrative Procedures Act; (2) the Commissioner complied with the statutory and constitutional requirements of state and federal law; (3) the Commissioner’s decision was supported by substantial evidence and not arbitrary; and (4) LSA-R.S. 6:852(C) is constitutional.

In First National Bank of Abbeville v. Sehrt, 246 So.2d 382 (La.App.1st Cir. 1971) rehearing denied, 1971, writ refused, 258 La. 909, 248 So.2d 334 (1971), similar questions were before this Court. There we held that the Louisiana Administrative Procedures Act applies only in cases where a hearing is presently provided for by law. In so holding we said:

“The foregoing can only be construed to make the Act applicable only when a hearing is presently provided for by law. It does not create the right to a hearing when none is presently required. It provides the procedure to be followed when holding administrative hearings otherwise required by law.” (emphasis by the Court).

Though the Abbeville case was concerned with banks and banking, it is significant that LSA-R.S. 6:852(C) also does not require the Commissioner to hold a hearing before approving an application to establish a branch office. We feel that our reasoning in the Abbeville case holds true here and thus do not find that the Trial Judge erred in holding that the Commissioner was not required to comply with the Louisiana Administrative Procedures Act.

We do not agree that the Trial Judge erred in holding that the Commissioner complied with the statutory and constitutional requirements of state and federal law and that LSA-R.S. 6:852(C) is constitutional.

Similar questions were raised and answered in First National Bank of Abbeville v. Sehrt, supra, and therein under facts most similar, we said:

“We can see no denial of due process in this case. Primarily, we do not believe that the due process clause can be invoked to prevent lawful competition. It can hardly be argued that there is a deprivation of property simply because another bank might be established in the area. Plaintiffs have no' vested interest in the banking business of their area, and hold no exclusive franchise.
“Second, we find that the requirements of due process have been satisfied herein. No one questions the absolute right of the Legislature to regulate banking and to provide the means for the establishment of banks within the State. It has chosen to delegate this authority to the State Bank Commissioner. His determinations in this respect are subject to judicial review and opponents have standing to demand the same under Article I, Section 6 of the Louisiana Constitution, which provides:
'All courts shall be open, and every person for injury done him in his rights, lands, goods, person or reputation shall have adequate remedy by due process of law and justice administered without denial, partiality or unreasonable delay.’

The final question to be resolved by this Court is whether or not the action of the Commissioner in approving the application was “arbitrary” and “capricious”. In support of its argument that the action of the Commissioner was arbitrary and capricious the plaintiff claims that the decision was made without sufficient evidence and that plaintiff was denied an opportunity to be heard.

The record discloses that an application and economic report was furnished the Commissioner by MB&L. An investigation was then conducted by Mr. Pierce Carey, State Bank Examiner, during which he visited with plaintiff as well as the Fer-riday area. Although plaintiff proposes that Ferriday and Vidalia should be considered a single community, the application of UNI-FED to the Federal Home Loan Bank Board indicates otherwise, the investigation of Mr. Carey indicates they are separate communities, and several prominent citizens of Ferriday testified that they do not consider themselves part of a single community. Mr. Benjamin Daigle, Executive Vice-President of plaintiff-appellant, testified that there was some 8.7 millions of dollars in unrealized savings in the Fer-riday area.

Mr. Carey was the gentleman who first informed MB&L of the pending application for a branch office to be located in Ferriday and he took MB&L’s objection into consideration in preparing his report. His conclusion was that the community of Ferriday could support two branches of savings and loan associations.

Lastly, the Commissioner testified that at the time he received the letter of objection from MB&L a letter approving the application of UNI-FED had already been mailed to the applicant. He could have changed his decision after a subsequent meeting with representatives of MB&L, however, based upon the investigation of Mr. Carey, as well as other information submitted him, he affirmed his decision of granting the application. The plaintiff has failed to show that the decision of the Commissioner in granting the permit was “arbitrary” or “capricious” and therefore we find no error on the part of the Trial Judge.

Therefore, for the reasons hereinabove assigned the judgment of the Trial Court is affirmed, all costs of this appeal to be paid by plaintiff-appellant.

Affirmed.

      . LSA-R.S. 6:852(0) provides:
      “No association may establish or maintain a branch office without the prior written approval of the commissioner. Notwithstanding the definition of ‘primary lending area’, no branch office shall be established or maintained except within one hundred miles of the place where the association is domiciled. Each application for approval of the establishment and maintenance of a branch office shall state the proposed location thereof, the need therefor, the functions to be performed therein, the estimated volume of business thereof, the estimated annual expense thereof, and the mode of payment therefor. Each such application shall be accompanied by a budget of the association for the current earnings period and for the next succeeding semiannual period, which reflects the estimated additional expense of the maintenance of such a branch office. Upon the receipt by the commissioner of such an application, he shall determine whether the establishment and maintenance of such office will unduly injure any properly conducted existing association or federal association in the community where such branch office is proposed to be established. If he finds that no undue injury is likely to result and that the establishment and maintenance of such branch office is advisable, he may approve the application.”

      . The “foregoing” that reference is made to is : “R.S. 49:955(A) provides that:
      “ ‘In an adjudication, all parties who do not waive their rights shall be afforded an opportunity for hearing after reasonable notice.’
      “R.S. 49:951 contains the following provisions :
      “ ‘As used in this Chapter:
      “‘(1) “Adjudication” means agency process for the formulation of a decision or order.
      “ ‘ (3) “Decision” or “order” means the whole or any part of the final disposition * * * of any agency, in any matter other than rule making, required by constitution or statute to be determined on the record after notice and opportunity for an agency hearing * * ”

      . Art. 1, § 22 of the Louisiana Constitution of 1974 provides :
      “All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights.”


author: LOTTINGER, Judge. ELLIS, Judge

text:
    STATE of Louisiana ex rel. William J. GUSTE, Jr., Attorney General v. CITY OF BATON ROUGE et al.
    No. 10511.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.
    Rehearing Denied March 1, 1976.
    Dennis Whalen, Baton Rouge, for appellant.
    Kenneth C. Dejean, Asst. Atty. Gen., Baton Rouge, for State of La., W. J. Guste, Jr., Atty. Gen.
    Harry M. Zimmerman, Jr., New Orleans, for Pittman Const.
    Joseph E. Keogh, Jr., Parish Atty., and Fred Benton, Jr., Baton Rouge, for City of Baton Rouge and Parish of East Baton Rouge.
    Richard B. Nevils, Baton Rouge, for Desmond-Miremont Associates.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   LOTTINGER, Judge.

This suit was brought by the State of Louisiana, through the Attorney General, seeking to have a contract to construct a civic center-arena, exhibit hall and theater declared null and void. The contract in question was executed by the City of Baton Rouge and the Parish of East Baton Rouge with Pittman Construction Company, Inc., as general contractor. The Trial Court rendered a judgment in favor of defendants upholding the validity of the contract and dismissed the plaintiff’s suit.

The Attorney General did not appeal the decision of the Trial Court, however, this appeal has been taken by William M. Duke and the corporation of which he is president, Somar, Inc., under the provisions of LSA-C.C.P. Art. 2086 which provides that a person who could have intervened in the Trial Court may appeal, whether or not any other appeal has been taken.

The appellant argues that the specifications which were attached to the bid proposals prepared by the defendant, City of Baton Rouge and Parish of East Baton Rouge, contained a closed specification in violation of LSA-R.S. 38:2295, and that the alleged closed specification does not comply with the statutory requirements relating to closed specifications as are contained in LSA-R.S. 32:2290, et seq. Appellant, therefore, contends that the contract is null and void.

The appellant contends that the Trial Judge erred generally in refusing to nullify a public contract after specifically finding that the closed specification laws of the State of Louisiana had been violated, generally in refusing to nullify the contract under the facts as found, and in granting summary judgment.

As regards the specification of error concerning summary judgment, it is true that the matter was heard by the Trial Court on a motion for summary judgment, however, prior to the commencement of the trial, all parties in the Trial Court agreed that after hearing all of the testimony and viewing all of the evidence, the Court would dispose of the entire matter. Considering that this was agreed to by all parties at the trial level, we find no error on the part of the Trial Judge in disposing of this matter in the manner in which he did.

The specifications which are in controversy in this law suit call for two high voltage circuit breakers, which are to be installed in the Central Mechanical Room in the Civic Center Complex. The specifications, as attached to the bid proposals prepared by the city and parish, contain the following:

“The electrical subcontractor shall furnish and install two sections of primary switchgear in the Central Mechanical Building. Switchgear shall be compatible with and shall be by same manufacturer as switchgear to which it shall be connected. Manufacturer shall be the Square D Company.”

The record points out that it was the appellant, Mr. Duke, along with others, who pointed out to the architects and the electrical engineer that he felt that the above specification, to the effect that Square D equipment be used, was prohibited by the closed specification law and precluded other manufacturers of like equipment from bidding. These assertions were made at a pre-bid conference held more than a week prior to the time set for the receipt of sealed bids to which all contractors, subcontractors, suppliers, interested parties and any interested citizens were invited or free to attend, including Mr. Duke, who attended. It was argued that an advantage existed of Square D Company being able to quote a lower price to one electrical subcontractor than another and thereby affect the final outcome of the bidding.

It was immediately concluded by the supervising architect and the electrical engineer that such an unfair advantage did exist and would have to be removed. Two alternative solutions were offered, (1) the changing of these specifications from a designation of the use of Square D Company equipment to an item or allowance in the amount of $52,908.00 or in the alternative (2) making the item an “owner supplied” item under, separate bid letting. It was determined at the conclusion of the meeting that the best solution to the problem would be to use the “allowance” procedure. For some unknown reason, Mr. Duke left the meeting early and testified that he thought the “owner supplied” solution had been agreed to. No evidence was presented by the plaintiff that any other person present, other than Mr. Duke, who left early, was of such an opinion.

The proposed change as an addendum was issued and mailed one week prior to the date set for the reception of bids, and contained the following:

“The two high voltage circuit breakers, which must be installed in the switchgear located in the Central Mechanical Room now under contract, shall be furnished and installed by the successful electrical subcontractor for the Arena and Exhibit Hall. These devices shall be purchased from wholesaler by the successful subcontractor at a cost of $52,908 not including sales taxes, or subcontractor’s profit or overhead.”

The issuance of the addendum was well within the statutory time period allowed by LSA-R.S. 38:2211(B).

It is argued by the appellant that the addendum did not correct the defect of a closed specification in that the addendum makes reference only to the “two high voltage circuit breakers” rather than “switchgear” as found in the original specification. He argues that a circuit breaker is part of the switchgear and that that mere use of the terminology “circuit breaker” did not delete from the original specification the fact that the manufacturer shall be Square D Company. Mr. Duke testified that he believed that the addendum was intended to delete the entire switchgear, and not just the two circuit breakers, and further testified that it was simply not worded properly.

The Trial Judge in his written reasons for judgment found as a matter of fact, to-wit:

“Mr. L. E. Miremont, the architect, and Mr. Levy, the electrical engineer, testified that they intended that Addendum No. 2 supersede the prior specification for the furnishing of the switchgear for the Arena and Exhibit Hall. They testified that the language of Addendum No. 2 was carefully prepared by them in consultation with the Project Architect, with the approval of the City-Parish Government, and that all parties understood and intended that the language of Addendum No. 2 eliminate the closed specification in the original specifications by eliminating the reference to the switchgear having to be manufactured by the Square D Company and to substitute in its place the ‘allowance.’ It was further established by a preponderance of the evidence that all parties at the pre-bid conference understood that Addendum No. 2 would be issued to eliminate reference to the Square D Company, and to eliminate the closed specification and substitute the allowance. Mr. F. G. LeBlanc, Jr., representing Saia Electric, the electrical sub-contractor, testified that he and his company fully understood the language of Addendum No. 2 to eliminate reference to the Square D Company equipment and substitute therefor the allowance ; ■ that in fact his company had received five bids from five supply houses in which each of the supply houses uniformly treated the switchgear item in question as an allowance, which to the Court is proof that competitive bidding was not precluded in violation of the law.”

The Trial Judge found that the original specification was violative of the closed specification law, even though the project specifications did contain the following language, to-wit:

“Materials and equipment shall conform in all respects to the requirements set forth in these specifications and the accompanying drawings. However, where-ever a product is identified by name, equal products which meet the Architect’s written approval may be used.”

We are of the opinion, however, that there is no need for us to answer the question as to whether the original specification was violative of the closed specification law, for we must look to the specifications and the language therein contained at the time bids were received, and not at some date prior to that.

It was at that point that the much discussed addendum had already been issued and as the evidence points out the vast majority of those individuals and businesses concerned, excluding Mr. Duke, were of the opinion and understanding that it was the intention of everyone to eliminate any reference to the Square D Company. Even though the language of the addendum may not have been properly drawn so as to show exactly what was intended, there was no misunderstanding as far as the bidders were concerned. Even Mr. Duke admitted the intention of the addendum.

The Supreme Court in Stevens Concrete Pipe & Products, Inc. v. Burgess, 252 La. 136, 209 So.2d 733 (1968) held:

“The command of the closed specification law is clear and unequivocal. This recent statute, Act 40 of 1965, which is incorporated into our Revised Statutes as R.S. 38:2290-38:2296, was unquestionably designed, as the Court of Appeal [Stevens Concrete Pipe & Products, Inc. v. Burgess, 202 So.2d 498 (La.App. 1st Cir. 1967), rehearing denied (1967)] properly found, to supplement our low bidder statute, R.S. 38:2211 et seq., to assure competitive bidding which heretofore could be stifled by the use of closed specifications excluding products of equal utility and appearance.”

Under the facts as found by the Trial Judge, we are of the opinion that at the time that bids were received on the contract in question, competitive bidding had not been stifled, the language complained of did not constitute a closed specification, and there are no grounds presented for declaring the contract null and void.

Therefore, for the above and foregoing reasons the judgment of the Trial Court is affirmed. All costs of this appeal are to be paid by plaintiff-appellant to the extent provided by law.

Affirmed.

ELLIS, J., dissents with reasons.

ELLIS, Judge

(dissenting) :

For almost fifty years, Louisiana has had laws regulating the letting of public contracts. The present version, last amended in 1974, reads, in part, as follows:

R.S. 38 ¡2211(A)(1):
“All public work exceeding the sum of five thousand dollars including both labor and materials to be done by the State of Louisiana, any public corporation or political subdivision of the state and all purchases of materials or supplies exceeding the sum of two thousand five hundred dollars to be paid out of public funds shall be advertised and let by contract to the lowest responsible bidder who had bid according to the contract, plans and specifications as advertised, and no such public work shall be done and no such purchase shall be made except as provided in this part.”

Since 1948, the following provision, now R.S. 38¡2211(F), has been part of the law:

“Where the governing authority deems it advisable and in the public interest to purchase machinery, equipment or vehicles of certain makes, kinds or types, the advertisement may specify the makes, kinds or types and, after the advertising, the governing authority may purchase those makes, kinds or types, but they shall not pay more than the standard market price for the machinery, equipment or vehicles.”

In 1965, the legislature adopted R.S. 38 ¡2290-2296, for the purpose of regulating closed specifications. Under R.S. 38:2295 (A) a closed specification exists when a product is specified “to the exclusion of all other products of apparent equal quality and utility.”

R.S. 38:2290(A) provides:
“No architect or engineer, either directly or indirectly, shall submit a closed specification of a product to be used in the construction of a public building or project, unless all other products, other than the one specified, would detract from either the utility or appearance of the building or the uniform appearance of other public buildings in the immediate vicinity.”

In my opinion, the foregoing provisions constitute a limitation on the authority of the State to act under R.S. 38 ¡2211(F).

In the event it is thought necessary to include a closed specification in a public contract the law provides the following procedures :

R.S. 38:2291:
“Whenever an architect or engineer, either directly or indirectly, has included a closed specification in the specifications for a public building or project, he shall submit a written report to the building authority, ten days prior to the final submission of specifications, which report shall' include the following:
“(1) Identification of each closed specification ;
“(2) A concise statement of the reasons for including a closed specification;
“(3) Identification of other products which are apparently equal and a concise statement as to why they may be excluded under the provisions of R.S. 38:2290.”
R.S. 38:2292:
“The approving authority may accept a closed specification only after it determines that all products brought to its attention are excludable under the provisions of R.S. 38:2290, however, the approving authority must reject the closed specification, should another product of equal utility and appearance be submitted to them prior to letting of the bid, in which event the specifications must be amended so as to allow substitution of an equal.”

The facts to which the foregoing legal provisions must be applied are as follows:

The Civic Center Arena is part of a complex of buildings being constructed in Baton Rouge, which, when completed, will include a court building, the arena, an exhibit hall, a theater and a central mechanical building, which will service all buildings with power, heat, air conditioning, and the like. The contract for the central mechanical building and the court complex had already been let, and construction had begun.

The contract for the arena included two sections of primary electrical switchgear to handle and distribute electricity to the arena. This switchgear was to be installed in the central mechanical building, and necessarily had to be compatible with the switchgear which was to be installed therein under the contract for the construction of the latter building. At the time of the prebid conference, everyone involved was under the impression that “Square D” switchgear was going to be provided by the subcontractor on the central mechanical job. The contract for the arena required that “Square D” switchgear be provided under that contract also.

At the prebid conference, held more than a week before the sealed bids were to be submitted, it was argued, and conceded by the supervising architect and engineer, that the foregoing constituted a closed specification.

Following the prebid conference, the following addendum to the specifications was issued, which, it was testified, was intended to eliminate the closed specification:

“The two high voltage circuit breakers, which must be installed in the switchgear located in the Central Mechanical Room now under contract, shall be furnished and installed by the successful electrical subcontractor for the Arena and Exhibit Hall. These devices shall be as purchased from wholesaler by the successful subcontractor at a cost of $52,908 not including sales taxes, or subcontractor’s profit or overhead.”

Apparently by providing an allowance which all bidders must use, it was felt that all bidders would then be on equal and competitive footing. The amount of the allowance was obtained by asking a representative of “Square D” to give the fair market value of the switchgear called for by the specifications. This figure was checked to be sure it was in line with the prices of similar equipment on the market. It is clear from the testimony that the successful bidder would have to furnish “Square D” switchgear, and that the price for same was not established under competitive conditions.

This case presents, therefore, a classic example of a situation for which the provisions of R.S. 38:2291 and 2292 were designed. I do not doubt that, under the circumstances presented, only Square D switchgear could be used, if proper engineering standards were to be maintained. That fact, however, cannot, in my opinion, excuse the failure of the architects and engineers to comply with the clear provisions of the law.

I do not agree that the addendum had the effect of removing the closed specification, since only Square D equipment could be furnished both before and after it was adopted. Therefore, other products of apparent equal quality and utility were excluded by the specifications, either directly or indirectly. By holding that the provision for an allowance has the effect of removing the closed specification, the majority in this case has provided a method for circumventing the provisions of R.S. 38:2211 (F) and R.S. 38:2291-2292. As a result, Square D switchgear will be purchased at a price which has been established without competitive bidding, and without complying with the provisions of either of the above cited statutes.

I therefore dissent.

      . LSA-R.S. 38:2211 (B) provides:
      “No public corporation or political subdivision of the state shall issue or cause to be issued any addenda modifying plans and specifications within a period of seventy-two hours prior to the advertised time for the opening of bids, excluding Saturdays, Sundays and any other legal holidays. If the necessity arises to issue an addendum modifying plans and specifications within the seventy-two hour period prior to the advertised time for the opening of bids, then the opening of bids shall be extended exactly one week, without the requirement of readvertising as provided by Subsection (A) of this section.”

      . Three bids were received: Pittman Construction Company, Inc., $17,594,000; W. M. Heroman and Gervais Favrot, $19,986,000; and J. A. Jones, $20,698,000. The difference between the low bidder and the next lowest bidder was $2,392,000. It would seem obvious that an item of $52,908 had no apparent effect on the outcome of the bidding, and certainly did not play any part in stifling competition.


author: BARNETTE, Judge.

text:
    Dr. William ALLEN v. Roger L. PIPPIN.
    No. 10484.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.
    Rehearing Denied March 1, 1976.
    David L. Dawson, Jr., Baton Rouge, for plainti f f-appellant.
    Bart Eaton, Baton Rouge, for defendant-appellee.
    Before LANDRY, COVINGTON and BARNETTE, JJ.
   BARNETTE, Judge.

This is a suit for recovery of an alleged balance due for professional services rendered by the plaintiff, a dentist, against his patient, the defendant. The defendant answered denying that he owed the alleged balance and sought by reconvention the return of a $600 payment made to the plaintiff for work not done because of the plaintiff’s alleged refusal to complete the work except upon payment of the total amount of $1,055 in accordance with their agreement. Another payment of $50 was made, return of which the defendant did not pray for. The defendant also seeks by reconvention $399 additional as damage as a result of incomplete and defective dental treatment.

The trial court judge found that the plaintiff was entitled to payment of $350 for services rendered but was obligated for the return of the balance of the $650 paid by the defendant for services not rendered. There was no evidence to support and the court found no merit in defendant’s recon-ventional demand for damages. Accordingly judgment was rendered in favor of the defendant, plaintiff in reconvention, Roger L. Pippin and against the plaintiff, defendant in reconvention, Dr. William Allen, in the principal sum of $300 with legal interest and costs. The plaintiff, defendant in reconvention, Dr. Allen, has brought this suspensive appeal.

The defendant, plaintiff in reconvention, Pippin, did not appeal, nor answer the appeal. In his counsel’s brief in this court he said:

“Plaintiff, Dr. Allen chose to appeal to this court but defendant Pippin though not exactly tickled pink with the decision did not feel that the Judge had committed manifest error.”

We agree there is no manifest error in the trial court’s reasons and judgment rendered, except in the figure of $350 allowed for services rendered. There is no evidence whatever in the record to support or justify this arbitrary figure. If the plaintiff was entitled to any payment for services rendered the only amount which the evidence justifies is $527.50. We will discuss this more fully below.

The plaintiff, Dr. William B. Allen, a practicing dentist in Baton Rouge, began in October, 1972, a protracted dental treatment of his patient, Roger L. Pippin, in preparation for major bridge work, referred to as prosthetic devices. His preparatory work and treatment included repairing tooth damage, treatment of gums, filling cavities in existing teeth and grinding off teeth in preparation for cementing of permanent bridge work to replace missing teeth. Temporary bridge work was done to meet the patient’s needs until the permanent prosthetic devices were completed and in position. His agreement with Mr. Pippin was to do this preparatory work and treatment and the temporary bridge work on a pay-as-you-go basis.

This preparatory and corrective treatment and temporary bridge work continued until March, 1973. During that time Mr. Pippin made payments totalling $486.

It was agreed that the total fee for making and placing the prosthetic devices in permanent position would be done for an additional fee of $1,055, one half of which was to be paid when the order was placed for the making of the devices and the remaining one half was to be paid when they were placed in permanent position.

In March, 1973, when the time arrived to order the making of the permanent prosthetic devices, the defendant testified he requested Dr. Allen to hold up on placing the order until he could more conveniently make the required payment. This alleged request for delay is denied by Dr. Allen and the order for making the devices was placed with the dental laboratory.

When the prosthetic devices were delivered Dr. Allen made many attempts to get Mr. Pippin back to his office to complete the job. At this point their relationship appears to have broken down.

In the meantime, Dr. Allen had listed property for sale with Mr. Pippin who was a licensed real estate broker. Mr. Pippin procured a buyer who made an offer of $42,000. Dr. Allen refused the offer, holding out for $48,000. Time rocked on with no further dental services being performed but repeated demands for payment of the alleged balance due of $1,055 were made.

Dr. Allen listed his property with another real estate broker (who in turn engaged another agent to assist on a split commission basis). A buyer was found and the sale agreed upon. It was then discovered that the intended purchaser was the same individual whom Mr. Pippin had first interested in buying the property and that the terms of sale were substantially as Mr. Pippin had proposed. Dr. Allen then became aware of his possible liability to Mr. Pippin for the payment of the realtor’s commission of approximately $2,600.

Dr. Allen engaged the services of an attorney, Ronald L. Causey, to complete the real estate transfer and to protect his interest against his possible liability to Mr. Pippin for the realtor’s commission. Mr. Causey was successful in getting the three interested real estate brokers or agents to agree to a three way division of the fee. Mr. Pippin’s pro-rata was $880, which amount he authorized any closing attorney to pay to Mr. Causey for his account. In this act of authorization he expressly released Dr. Allen from any liability to him for payment of a real estate agent’s fee or commission.

It was agreed between Mr. Causey and Mr. Pippin that Mr. Causey would withhold $600 of the $880 fee of Mr. Pippin for remittance to Dr. Allen in payment on the balance of the dental bill and pay him, Pippin, the balance.

This deal was consummated on August 24, 1973, on which date Mr. Causey wrote a letter to Mr. Pippin stating:

“This is to advise you that I have transmitted to Dr. William D. Allen the amount of $600.00 to be applied on your account with him and further, this is to authorize you to go to Dr. Allen’s office to complete the work and services which he was doing for you and further, it is understood that you will complete payment of the balance owed to Dr. Allen at the rate of $50.00 per month until paid in full.”

Mr. Causey did not make remittance to Dr. Allen of the $600 until December 13, 1973. Apparently Dr. Allen did not know until then of the agreement between Mr. Causey, his attorney and Mr. Pippin, that the balance of the account could be paid at the rate of $50 per month. Dr. Allen renounced this agreement and demanded the payment of the balance in full before installing the permanent prosthetic devices. In the meantime (the date is not certain) a $50 payment was made by Mr. Pippin, making the total credit of $650 against the $1,055 agreed fee. This left a balance of $405 for which Dr. Allen brought this suit after the relationship between him and Mr. Pippin had broken down completely in disagreement.

Dr. Allen refused to complete the dental work except for payment in full at the time of making the permanent prosthetic devices placement. Mr. Pippin insisted upon payment as agreed with Mr. Causey, but significantly made no such payments or tender of payments, except for the one payment of $50 above mentioned.

By this long interruption in the progress of the dental treatment, the temporary bridge work wore out or badly deteriorated, as would have been expected since it was designed for temporary use only. No examination was made of Mr. Pippin’s dental condition at the time of the trial below, but Dr. Allen, very reasonably speculated that the prepared prosthetic devices would not now fit properly, due to probable “drifting” of the anchor teeth in the intervening time. He also indicated the possibility that further preparatory work would now be necessary.

Counsel for appellant,- Dr. Allen, argues in this court that Dr. Allen did not authorize his attorney, Mr. Causey, to negotiate a deal with Mr. Pippin for the payment of the balance of his account in monthly installments. He contends that Mr. Causey was engaged only to negotiate a settlement of the issue of real estate agents’ commission for which he was obligated resulting from the sale of his property. He contends that his attorney exceeded his authority in negotiating a settlement of Mr. Pippin’s dental account, and he is not bound by the terms of the August 24, 1973 letter. He has cited jurisprudential authority for the principle emanating from the Civil Code Articles 3010 and 3021. He contends that the burden of proof is upon the person dealing with an agent to show that the agent (the attorney, Mr. Causey, in this case) acted within the limits of his authority.

The authorities cited are not controlling of the situation presented by the facts in this case. Dr. Allen has ratified the actions of his attorney by accepting the benefits which inured to him, which incidentally, were very substantial. We do not express an opinion whether Dr. Allen was legally obligated for the payment of a commission of $2,640 to Mr. Pippin, but he had been advised that he was so obligated, and believing this to be so, he engaged Mr. Causey to negotiate a settlement with Mr. Pippin and the two other claimants to the commission.

Mr. Causey was not called as a witness by either party and there is no explanation of their failure to do so. But we find in the record filed on behalf of Dr. Allen, plaintiff, a copy of the release by which Mr. Pippin released Dr. Allen from any further liability to him for the realtor’s commission. In pertinent part that release provides:

“That for the cash consideration of EIGHT HUNDRED EIGHTY DOLLARS AND NO/100 ($880.00) DOLLARS, he does hereby release the said William D. Allen from any liability or responsibility for the payment of any real estate fees or commissions in the event that the said property is sold to anyone including a person or persons who may have looked at the said property during the time the undersigned Af-fiant had a listing on the said property;

This is dated August 24, 1973, and notarized by Mr. Causey.

It was on this date and coincident with the execution of the release by Mr. Pippin that Mr. Causey, as Dr. Allen’s attorney, wrote and gave to Mr. Pippin the above quoted letter. The trial judge correctly admitted this letter in evidence, over the objection of counsel for Dr. Allen.

While the release executed by Mr. Pippin makes no mention of the agreement relative to the payment of $600 on his dental account out of the $880 received and the terms for payment of the remaining balance as stated in the letter, the twp instruments, when read together as they must be, clearly indicate that the settlement of Mr. Pippin’s claim for realtor’s commission took into account his off-setting debt to Dr. Allen. The $600 payment and the terms for payment of the balance are therefore a part of the total consideration for his release of Dr. Allen from liability to him for the realtor’s commission.

Dr. Allen, having accepted the benefits of Mr. Causey’s negotiations in his behalf, after all the terms became known to him, cannot now be heard to renounce that part of the agreement which he does not like. Pailet v. Ald, Inc., 194 So.2d 420 (La.App. 4th Cir.1967); Francis v. Bartlett, 121 So. 2d 18 (La.App.2d Cir.1960); Stevens-Davis Co. v. Liberty Industrial Life Ins. Co., 12 La.App. 577, 126 So. 249 (1930).

Having ratified the terms of the settlement agreement Dr. Allen is bound by its terms. But we recognize the impossibility at this late date of a successful completion of the dental procedure which the parties contracted for more than three years ago. Mr. Pippin, by his failure to follow through timely on the completion of the procedure and to comply with the terms of their agreement by payment of the required fee of $527.50 (one half of $1,055) when the order was placed by Dr. Allen for the laboratory work in March, 1973, has contributed to the impossibility with which the parties are now confronted.

We will therefore resort to the authority vested in us by Article 2164 of the Code of Civil Procedure and render a judgment which is just, legal and proper upon the record before us on this appeal.

We find, as did the trial judge, that Dr. Allen acted pursuant to the agreement when he ordered the making of the prosthetic devices in March, 1973. There is no evidence to justify a finding of fact that Mr. Pippin timely requested him to delay placing the order with the dental laboratory. Mr. Pippin therefore became obligated at that time for the payment of $527.50.

The payment to Dr. Allen of $650 overpaid Mr. Pippin’s obligation by $122.50. He is entitled in reconvention, to reimbursement of this amount.

The trial court judge arbitrarily found that the services rendered by Dr. Allen to Mr. Pippin should be valued at $350. On this basis he found the plaintiff to have been overpaid by $300 for which amount judgment was rendered in favor of defendant, plaintiff in reconvention. The record contains no evidence or testimony to support this finding. In that respect the judgment was manifestly erroneous. We find, as above stated, that the services rendered for which payment was due the plaintiff was the making of the prosthetic devices, for which the agreed payment was one half the total contract, or $527.50.

Having paid the price for the making of the prosthetic devices, they now belong to Mr. Pippin and should be delivered to him. They may no longer be suitable for the purpose intended, and it is more probable than not that further corrective work will be necessary due to the long delay in fitting the prepared devices, but he should be free to attempt to have them fitted by another dentist if he should elect to do so or to recover the salvage of the gold content. There is no reason why he and Dr. Allen could not renegotiate their contract for completion of the needed dental work in the light of the changed conditions, if their personal conflict can be resolved.

The issue of damages alleged by the defendant, plaintiff in reconvention, and rejected by the trial court, was not appealed.

The judgment rendered in favor of Roger L. Pippin, defendant, plaintiff in re-convention, and against the plaintiff, defendant in reconvention, Dr. William Allen, in the amount of $300 is now amended and reduced to $122.50, with recognition of the ownership of the defendant, Roger L. Pippin, of the prosthetic devices made and delivered to plaintiff, Dr. William Allen, and ordering the delivery thereof to the defendant, plaintiff in reconvention, Roger L. Pippin. As thus amended the judgment is affirmed except that the cost of this appeal shall be paid by the appellee, Roger L. Pippin.

Amended and affirmed.


author: LANDRY, Judge.

text:
    Earl E. REEVES v. GULF STATES UTILITIES CO. et al.
    No. 10210.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.
    Rehearing Denied March 1, 1976.
    Writs Refused April 13, 1976.

      Dennis R. Whalen, Baton Rouge, for appellant.
    Frank W. Middleton, Jr., Baton Rouge, for Gulf States Utilities Co.
    Charles E. Pilcher, Baton Rouge, for City of Baton Rouge.
    Before LANDRY, COVINGTON and BARNETTE, JJ.
   LANDRY, Judge.

This matter is before us on remand from the Supreme Court with instructions to assess quantum due plaintiff, Earl E. Reeves (Appellant), for personal injuries and related expenses and loss of income incurred in an accident in which a vehicle belonging to defendant, Gulf States Utilities Co., and driven by Gulf State’s employee, Robert J. Tassin, struck a motorcycle on which Appellant was riding in the scope and during the course of his employment as a motorcycle patrolman by the City of Baton Rouge (City). Defendants concede liability. Appellant complains of the inadequacy of the jury award of $27,500.00, claiming error by the trial court in refusing to instruct the jury as to the collateral source rule which Appellant invoked below. Finding error on the part of the trial court, as urged by Appellant, we remanded this matter to the lower court for retrial of the issue of damages only. Reeves v. Gulf States Utilities Co., La.App., 312 So. 2d 118, March 10, 1975. The Supreme Court granted writs and agreed that the trial court erred in refusing the requested instruction. However, the Supreme Court finding the record complete as to the facts, concluded this court should decide the issue of quantum as a matter of judicial expediency and economy, and remanded this cause to this court. Reeves v. Gulf States Utilities Co., La.App., 312 So.2d 118 (1975).

Appellant was injured December 15, 1972, at which time Appellant was 28 years of age. From the scene of the accident, Appellant was taken to the hospital where he was seen by Dr. Roy Regan, Surgeon, who diagnosed Appellant’s injuries as severe bruises and contusions to the left shoulder, left side of the face and left side of the head. An obvious loss of hearing in Appellant’s left ear prompted Dr. Regan to call Dr. Relvert J. Coe, Otolaryngologist (ear, nose and throat specialist), in consultation. Dr. Regan suspected brain concussion because of plaintiff’s vomiting. However, Dr. Regan discharged Appellant from the hospital on December 17, 1972, and Appellant has not been rehospitalized since. On March 12, 1973, Dr. Regan released Appellant to resume work subject to the limitation that Appellant not drive a motor vehicle of any sort. This restriction was due to Appellant’s continued dizziness and loss of balance resulting from permanent injury sustained to Appellant’s left ear as a result of the accident. Dr. Regan stated the opinion that Appellant should be permanently barred from operating a motor vehicle because of Appellant’s propensity to dizziness and loss of balance.

Dr. Relvert J. Coe, Otolaryngologist, first saw Appellant on December 17, 1972. He found Appellant suffering from dizziness and loss of hearing. He diagnosed Appellant’s condition as presumable fracture of the temporal skull bone in the area of the middle ear space labyrinth. On December 21, 1972, Dr. Coe saw Appellant in the doctor’s office. Examination disclosed normal hearing in Appellant’s right ear, but a 50% loss of hearing in Appellant’s left ear. On June 3, 1973, Dr. Coe found Appellant’s condition unchanged. In Dr. Coe’s opinion, Appellant has sustained damage to the balance system and a 50% loss of both volume and sound discrimination in the left ear. He explained that Appellant has lost 50% of ability to determine the source or direction from which sound originates, and an equal percentage of ability to hear sounds. This condition will make it difficult for Appellant to hear in a noisy environment. Dr. Coe stated a hearing aid might restore some of Appellant’s volume loss, but would not improve ability to determine the direction from which sound emanates. Testifying at the trial in June, 1974, Dr. Coe expressed some surprise that Appellant’s loss of balance had not corrected itself within six months to a year of the accident. He felt, however, that this condition would ultimately disappear completely. Dr. Coe was of the view that Appellant’s driving ability was somewhat impaired due to the injuries, but nevertheless felt Appellant should not be barred from operating a motor vehicle.

On March 25, 1974, Appellant was seen by Dr. Frank S. Norman, Otolaryngologist, who found Appellant suffering from numbness and loss of sensation on the left side of the face, dizziness, loss of hearing in the left ear and tinnitus (ringing in the ears). Dr. Norman found normal hearing in Appellant’s right ear, but noted a 65% loss of hearing in Appellant’s left ear. His examination revealed nerve damage in Appellant’s left ear which adversely affected Appellant’s balance. Dr. Norman believed the hearing loss may not be permanent and may improve with time. In his opinion, Appellant’s dizziness will eventually disappear. He felt that while the tinnitus will probably improve, it will never completely disappear. He felt that the loss of hearing will inconvenience Appellant in that it reduces Appellant’s ability to determine the source of sound, and also limits capacity to understand what Appellant hears. He explained that Appellant will tend to miss words in conversation, especially the beginnings and endings of words originating from the left.

From the time of Appellant’s injury, until he resumed work, Appellant was paid an aggregate of $2,545.98 by the City, itemized as follows: Workmen’s Compensation $597.80; medical expense $635.58; and 86 days sick leave in the sum of $1,-312.60. At trial judgment was rendered in favor of plaintiff-appellant for the sum of $27,500.00 without itemization by the jury. Judgment was also rendered below in favor of the City, as intervenor, against Appellant in the sum of $2,545.98, and ordered said amount paid the City by preference out of the amount for which defendants were cast.

At the trial, Appellant called Dr. Arlo Chavers, Medical Examiner, City Police Department, who was not previously aware Appellant had been recalled to duty as a foot patrolman following the accident. Dr. Chavers noted that in the light of Appellant’s injury, a reevaluation of Appellant’s status was in order. As medical examiner, he was of the positive opinion Appellant could no longer be employed in a position involving the carrying of a weapon. He stated that he would absolutely recommend Appellant’s transfer to an administrative position and, alternatively, Appellant’s disability retirement in the event Appellant could not be so accommodated. He explained that, as a patrolman, Appellant’s loss of hearing would endanger Appellant’s safety as well as the welfare of co-workers who depend upon a fellow officer to operate at 100% efficiency at all times. Dr. Chavers acknowledged that it is customary for the City to “take care” of officers injured in the line of duty by placing them in administrative positions for the remainder of their police careers. He stated he personally knew of instances in which this had been done.

When injured, Appellant received total pay of $885.00 per month composed of $700.00 paid by the City, $150.00 in supplemental pay from the State of Louisiana, and $35.00 hazardous duty pay because of Appellant’s employment as a motorcycle patrolman. At the time of trial in June, 1974, Appellant was being paid his base City pay of $700.00, and State supplement of $150.00 per month, for duty as a foot patrolman. Since resuming work, Appellant has not received the $35.00 per month hazardous duty wages paid a motorcycle patrolman.

Appellant testified he has completely recovered from the bruises and contusions. He is still bothered by the tinnitus once or twice a month, the episodes lasting from one hour to a day. He experiences constant numbness on the left side of his face, the sensation being similar to that resulting from a local anesthetic administered by a dentist. His gums and teeth are unduly sensitive. Appellant acknowledged making the samé pay as before the accident except for the $35.00 monthly hazardous duty pay. He admitted he is still doing some extra duty work for private employers, but not as much as before his injury. He also stated he has passed the examination for sergeant, and is presently thirteenth on this promotional list. He concedes there are numerous administrative positions to which he could be assigned in the police department, and which would permit opportunity of advancement to the rank of sergeant.

In addition to the $885.00 monthly wages earned by Appellant prior to the accident, Appellant performed after duty work for private employers such as providing police protection in stores and similar establishments. For the two years prior to his injury, Appellant earned an average of $2,066.00 annually from this outside source. It is conceded that if Appellant were forced to retire for physical disability, he would be entitled to a pension of at least $440.00 per month. There is no proof in the record that either plaintiff Reeves or defendants made any contribution to the pension fund.

Appellant argues that the trial court’s failure to give the jury the requested collateral source rule instruction resulted in an inadequate award for loss of future earnings. It is contended that had the jury been instructed as requested, a much larger award for loss of earnings would have resulted because the jury would have been compelled to disregard, in determining lost earnings, the fact that Appellant is entitled to a pension of over $400.00 monthly if he were forced to take a disability retirement.

The collateral source rule is well entrenched in our jurisprudence. It holds that a tort-feasor is not entitled to credit for benefits paid an injured plaintiff from a source to which the tort-feasor makes no contribution. Vogt v. Hotard, La.App., 114 So.2d 714; Doerle v. State, La.App., 147 So.2d 776.

Although we find the collateral rule inapplicable herein because, as hereinafter shown, Appellant has failed to establish a loss of future earnings because of the probability of compulsory disability retirement, nevertheless, the requested instruction should have been given.

In a jury trial, the jury is the sole judge of the law and facts notwithstanding it must accept the law as given it by the court. In this instance, the collateral source rule would have become relevant had the jury found Appellant entitled to damages for loss of future eárnings, and also found Appellant entitled to pension benefits from the City. Had the jury so found, either rightfully or wrongfully, its decisions in these regards would then have been the subject of appellate review. Since damages were not itemized by the jury in this instance, it is impossible to determine on appeal what portion of the award below, if any, was for loss of future earnings. Conceivably the jury award could have been entirely for pain and suffering. Equally tenable, the jury may have concluded Appellant was entitled to the entire award for loss of future earnings predicated upon the hereinafter mentioned economic analysis of Dr. John W. Chisholm, Economist. In this latter event, or the event any portion of the jury award was for loss of future wages, the jury should have been aware that defendants were not entitled to diminution of such award because of pension benefits to be received by Appellant from a source to which defendants did not contribute. Thomas v. Paper Haulers, Inc., La.App., 165 So.2d 61.

Defendants concede liability for the workmen’s compensation benefits and sick leave payments made by the City to Appellant for time lost following the accident. Appellant has received full wages from these sources from the time of the accident until Appellant’s resumption of employment. The City has obtained reimbursement of said amounts by virtue of its judgment in intervention. Under the circumstances, it would appear that Appellant may either demand the sick leave pay from the City, and thus utilize the amount of sick leave involved, or permit the City to retain said amount and restore the 86 days of sick leave charged to Appellant. We deem it inequitable to require the tort-feasor to make restitution to the injured party, and also to the person paying benefits from a fund to which the tort-feasor does not contribute.

We find no merit in defendants’ contention that Appellant, as the injured party, may not invoke the collateral source rule unless Appellant shows his own contribution to the fund from which benefits áre received. So far as we are aware, our jurisprudence makes no such requirement. Besides the hereinabove cited authorities, we have also considered Hudgens v. Mayeaux, La.App., 143 So.2d 606; Mat thews v. F. Miller & Sons, Inc., La.App., 146 So.2d 522; Sebren v. Millers Mutual Fire Insurance Co. of Texas, La.App., 182 So.2d 99, and Taft v. Gist, La.App., 293 So.2d 641. In every instance, we find the principle employed to be that where the injured party receives payment from a source involving the loss of a benefit due him, such as the use of sick or annual leave, or where payment is made from a pension fund to which the tort-feasor does not contribute, the tort-feasor is not entitled to diminution of damages for lost earnings on account of such payments. We are unaware of any instance in which it has been held that the injured party must contribute to a pension fund to invoke the collateral source rule. We hold, therefore, that if Appellant is entitled to loss of future earnings because of enforced retirement, the collateral source rule is applicable herein.

To establish his claim for alleged lost earnings, Appellant offered the testimony of Dr. John W. 'Chisholm, Economist, who has also served as a City volunteer police officer for several years. Dr. Chisholm is thoroughly familiar, by virtue of his voluntary police work, with all facets of operation of the Baton Rouge Police Department. He calculated Appellant’s potential loss of earnings predicated upon Appellant’s attaining the rank of police sergeant within two years (after ten years service), and, alternatively, on the assumption Appellant would not be promoted. In each instance, Dr. Chisholm also assumed Appellant would continue to earn the same amount in extra duty work for private employers, and that Appellant would also receive hazardous duty pay in the amount of $35.00 monthly. Employing these factors, Dr. Chisholm calculated Appellant’s loss of future earnings based on Appellant’s supposed retirement after 20 and 30 year periods of service. Chisholm added to these computations his estimate of Appellant’s earnings after retirement to age 71, Appellant’s life expectancy. Assuming Appellant’s attaining Sergeant and retiring after 20 years service, Chisholm found Appellant would earn a gross of $338,126.34 to age 71. Discounted at 5%, he reached a present value of said sum in the amount of $173,690.39, and discounted at 7%, he computed the present value to be $143,609.33. Supposing Appellant’s making Sergeant and retiring after 30 years service, Appellant’s total earnings would be $472,786.34 with hazardous duty pay and $426,990.00 without such pay. Discounting the latter figure at 5% would entitle Appellant to $215,591.81, and at 7%, $171,718.02 for lost earnings. On the premise that Appellant did not attain rank of Sergeant and retired after 20 years service, and without considering any extra duty pay, Dr. Chisholm found that Appellant’s income to age 71 would have a present value of $141,808.07 if discounted at 5% and $118,327.20 if discounted at 7%.

Dr. Chisholm conceded that if Appellant were forced to retire, Appellant was capable of earning at least minimum wages in other lines of employment. Assuming Appellant retired after having attained the rank of Sergeant and having served twenty years, and also assuming Appellant earned minimum wages at other lines of employment to age 71, Appellant’s earnings, after retirement, would produce a present net worth of $95,435.63 if discounted at 5%. Subtracting this sum from Appellant’s earnings as Sergeant during this same period, Dr. Chisholm found Appellant would suffer a net loss of $78,254.76 in earnings. Discounting Appellant’s minimum wage schedule earnings at 7% for this same period, Dr. Chisholm determined Appellant’s net loss would be $114,529.88.

It is basic law that an injured plaintiff must establish claimed damages or losses with legal certainty and by a reasonable preponderance of evidence, and that evidence which establishes only speculative, conjectural, mere possibility or even unsupported probability of damages does not suffice. Dowden v. State, La.App., 81 So. 2d 48; Pierrotti v. St. Paul Fire & Marine Insurance Co., La.App., 273 So.2d 363.

We find Appellant has failed to establish with legal certainty alleged loss of future earnings by virtue of enforced retirement and acceptance of a pension in lieu of wages as a police officer. We think the testimony of Appellant and Dr. Chavers clearly establishes a City policy of continuing police officers injured in line of duty as administrative officers in the police department. Significantly, Appellant has not cited one instance in which an officer injured in line of duty was compelled to accept disability retirement because he could not be accommodated in an administrative position in which he could function. We find the evidence preponderates in favor of the conclusion that it is far more probable than not that Appellant will be continued by the City in an administrative police position with no reduction in wages, save for hazardous duty pay as a motorcycle patrolman, rather than compel Appellant’s involuntary retirement for disability incurred in line of duty.

Appellant has, however, established a loss of $35.00 per month as hazardous duty pay, and has also shown some slight loss in extra duty wages received from private employment. Since the accident, Appellant has continued outside work but on a reduced scale, partly because one such employer discontinued Appellant’s service, and partly because Appellant found one such employment (warehouse duty) too dangerous in view of Appellant’s handicap. We find an award of $10,000.00 will adequately compensate Appellant for such earning losses, and the additional sum of $25,000.00 will fully recompense Appellant for past, present and future pain, suffering, inconvenience, disability and limitations resulting from the injuries noted.

It is ordered, adjudged and decreed that there be judgment herein in favor of plaintiff-appellant, Earl E. Reeves, against defendants, Gulf States Utilities Co. and Robert' J. Tassin, in solido, in the sum of Thirty-seven Thousand Five Hundred Forty-five and 9S/ioo ($37,545.98) Dollars, with legal interest thereon from date of judicial demand, until paid.

It is further ordered, adjudged and decreed that there be judgment herein recognizing the intervention of the City of Baton Rouge, and that out of the aforesaid award to plaintiff, Earl E. Reeves, the sum of Two Thousand Five Hundred Forty-five and 9%oo ($2,545.98) Dollars be paid said Intervenor by preference and priority, together with legal interest thereon from date of judicial demand, until paid.

It is further ordered, adjudged and decreed that all costs of these proceedings, including the cost of expert witness fees fixed by the trial court, be paid by defendants Gulf States Utilities Co. and Robert J. Tassin.

Amended and rendered.