text:
    Launey W. BECKHAM v. CITY OF NEW ORLEANS.
    No. 7211.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 24, 1976.
    Rehearing Denied March 16, 1976.
    Writ Refused May 4, 1976.
    Dodd, Barker, Boudreaux, Lamy & Gardner, Harold J. Lamy, New Orleans, for plaintiff-appellee.
    Philip S. Brooks, City Atty., Thomas P. Anzelmo, Sr., and Jackson P. McNeely, Asst. City Attys., for defendant-appellant.
    Before SAMUEL, LEMMON and MORIAL, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit against the City of New Orleans in workmen’s compensation. He seeks benefits for total and permanent disability allegedly resulting from a heart condition which manifested itself on March 25, 1972 while he was engaged in fighting a fire in the course and scope of his employment as a fireman. Compensation benefits also are sought under the Firefighters’ Heart and Lung Bill, R.S. 33:2581.

Defendant answered, admitting' plaintiff was employed as a fireman on March 25, 1972 but asserting he is entitled to no further compensation benefits other than those already paid to him by defendant.

After a trial on the merits, there was judgment in favor of plaintiff for total and permanent disability at the rate of $49 per week for five hundred weeks commencing April 25, 1972, together with interest and present and future medical expenses, subject to a credit for compensation benefits paid by the City. The City has appealed from that judgment.

The record shows plaintiff was employed as a fireman by the City since January 6, 1958. On March 25, 1972, while attending a fire in the course of his employment, he grew extremely weak and dizzy when he participated in carrying a heavy fire hose a substantial distance to a fire hydrant. He did not perform any further services at that fire, but he did complete his work shift on that day. Later, he attended several more fires, and eventually consulted Dr. Jack Ruli, a physician designated by the City to render medical treatment to its firemen. Dr. Ruli diagnosed plaintiff’s condition as mild hypertension, coronary disease with angina pectoris, chronic bronchitis, and chronic gastritis. In his opinion plaintiff was totally and permanently disabled from attending his duties as a fireman.

Plaintiff was hospitalized from May 10, 1972 until May 20, and he continued under Dr. Ruli’s care to the time of trial. Defendant paid plaintiff workmen s compensation benefits from April 25, 1972 until September 26, 1973, at which latter time he went on disability retirement pension with the New Orleans Fire Department. Thereafter, compensation payments were discontinued by the defendant. Plaintiff testified he did not know what was wrong with him when he became ill at the March 25th fire. He continued to work and attended three more fires, the extent of his duties being limited primarily to cleanup work. On April 25, plaintiff’s last day of work, he began to experience more severe chest pains, and reported to Dr. Ruli for the first time.

Dr. Ruli testified he saw plaintiff and hospitalized him on May 10 for a period of nine to ten days, during which time treatment was administered. The doctor stated his diagnosis of coronary artery disease with angina pectoris was the reason for his recommendation that plaintiff be terminated from fire fighting duties. Without the heart condition, he would have recommended only a period of rest for plaintiff’s other conditions.

During the course of his testimony Dr. Ruli was presented with the basic conditions under which plaintiff worked as a firefighter for fifteen years. He was asked to assume, plaintiff attended between 100 and 200 fires, on many occasions was required to enter smoke-filled areas during which time he inhaled quantities of smoke, that he expectorated quantities of black sputum after such fires, and was anxious and nervous when fire alarms sounded in the fire house.

Based on these hypothetical facts, Dr. Ruli was asked if, in his professional opinion, plaintiff’s firefighting activities caused, aggravated, or accelerated his heart condition. Dr. Ruli’s answer was if plaintiff attended the stipulated number of fires and inhaled smoke he would conclude plaintiff’s work-related activities played a major, or at least a significant, role in causing the heart condition and disability. Consequently, we hold plaintiff in this case has carried the burden of proof to show he is entitled to total and permanent disability benefits.

The mere development of a heart condition while employed by another does not entitle a worker to compensation benefits. However, when there is an accident or incident on the job which causes, precipitates, or accelerates the condition, the accident is compensable even if it results from usual and customary activities and exertions connected with the particular employment. In the present case there is little doubt that an accident or incident occurred on the job when plaintiff suffered chest pains while carrying a hose at the scene of a fire. Moreover, the medical evidence establishes without contradiction that the plaintiff’s heart disease was caused or contributed to by the exertion, heat, lifting, and other incidents of his employment as a firefighter. Under the circumstances, plaintiff has met his burden of proof and he is thus entitled to workmen’s compensation benefits for total and permanent disability.

As plaintiff has proved his case and is entitled to the compensation under the general concepts of Louisiana Workmen’s Compensation statutes, without need 'for him to rely on more liberal provisions of R.S. 33:2581, the Firefighters’ Heart and Lung Bill, we need not, and do not, consider the numerous issues raised by the City regarding the latter statute.

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

Affirmed.

      . In brief in this court, the defendant City of New Orleans attempts to raise the issue of prescription. Code of Civil Procedure Art. 927 provides that defense may not be supplied by the court. While the record indicates the case was not prescribed, defendant’s failure to file an exception makes a consideration of the issue improper.

      . It is not the position of the defendant that plaintiff is not entitled to workmen’s compensation benefits merely because of the fact that he is on disability retirement pension. The reason for termination of workmen’s compensation benefits is not clear, since the chief who terminated the benefits did not testify. His successor in office testified he did not himself terminate workmen’s benefits merely because plaintiff is on disability retirement.

      .The hypothet is based on facts established by the testimony.

      . Nickelberry v. Ritchie Grocer, 196 La. 1011, 200 So. 330; Sherman v. Southern Scrap Material Company Ltd., La.App., 284 So.2d 71; Weber v. McLean Trucking Company, La.App., 265 So.2d 628; Vicknair v. Avondale Shipyards, Inc., La.App., 220 So.2d 580; Guerrera v. City of New Orleans, La.App., 212 So.2d 223; Landry v. Park Wood Products, Inc., La.App., 201 So.2d 306; Dusang v. Liberty Mutual Insurance Company, La.App., 195 So.2d 340.


source: Caselaw Access Project

author: DOMENGEAUX, Judge.

license: Public Domain

text:
    Simpson WILLIAMS, Plaintiff-Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY et al., Defendants-Appellees.
    No. 5295.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1976.

      G. F. Thomas, Jr., Natchitoches, for plaintiff-appellant.
    Bolen, Halcomb & Bolton by Gregory Erwin, Alexandria, for defendant-appellee.
    Before CULPEPPER, DOMENGEAUX and PAVY, JJ.
   DOMENGEAUX, Judge.

This is a workmen’s compensation suit. Plaintiff-appellant, Simpson Williams, initiated this action seeking an award for total and permanent disability and statutory penalties and attorney’s fees from a work-related injury while in the employ of the defendant, Tidewater Construction Company. The trial court found plaintiff to be totally and permanently disabled but denied his claim for penalties and attorney’s fees against his employer’s workmen’s compensation insurer, Liberty Mutual Insurance Company. Defendants filed a motion for a new trial which was denied. Plaintiff has appealed from that portion of the judgment denying penalties and attorney’s fees. Defendants have answered the appeal seeking a reversal of the judgment declaring plaintiff to be totally and permanently disabled and further desire a reversal of the trial judge’s denial of their motion for a new trial.

In 1969 plaintiff received a back injury in connection with a work-related accident while in the employ of Sherwood Homes Company. He was treated initially by Dr. Charles Cook of Natchitoches, Louisiana, who examined him on January 16, 1969, and thereafter by Dr. W. W. Fox, an orthopedist in Shreveport, who treated plaintiff on February 1, 1969. Doctor Fox performed an examination and a myelogram and found a slight narrowing of the spinal interspace at the L-5 disc. Doctor Fox determined this to be a degenerative condition, prescribed bed rest, a back brace, and a corset for plaintiff. After an examination on August 5, 1969, this specialist felt that Mr. Williams was probably disabled at that point but did not examine him further. As a result of that accident and injury plaintiff received a lump sum settlement of $3,500.00.

After returning to work Mr. Williams received a second back injury on January 6, 1970, for which he was examined on January 27, 1970, by Dr. Jackie Huckaby, a general practitioner in Natchitoches, Louisiana. Doctor Huckaby suspected a possible ruptured disc and placed the plaintiff in a back brace and prescribed muscle relaxants. Mr. Williams testified that as a result of this injury he was unable to work for a period of nine months to one year.

The above referred to accidents in 1969 and 1970 predated the two accidents hereinafter described, which form the basis of this suit.

Plaintiff was subsequently employed by the defendant herein, Tidewater Construction Company, as a vibrator air tool operator. On October 29, 1973, he was operating a rotary drill which went out of control and struck him in the right hip. At that time he was examined again by Dr. Jackie Huckaby who diagnosed the plaintiff’s injury as a left illiac crest bruise. Aboout three week after the accident plaintiff began to complain of pain in his lower back and legs and occasionally lost the use of his left leg. He was forced to take aboht five days off work even though he had been placed on lighter duty since this accident.

After that injury plaintiff was also examined by Doctor Huckaby’s associate, Dr. Fred Willis, who found acute muscle spasms bilaterally in plaintiff’s back and lumbo-sacral area and diagnosed the injury as acute myoligamentous lumbosacral strain.

After returning to work with Tidewater plaintiff was again injured on March 6, 1974, on the job, when an object onto which he was holding broke, causing him to fall into a storage tank, again injuring his back. Plaintiff was taken immediately to Doctor Willis’ office, who diagnosed the injury as one similar to the previous one, i. e. acute myoligamentous lumbrosacral strain. Plaintiff attempted to return to work but experienced further difficulty on March 9, 1974, and after being seen by Doctor Willis on that date, the original diagnosis was confirmed. Mr. Williams returned to work with some difficulty and on April 5, 1974, was forced to seek Doctor Willis’ care again as he had not responded to treatment.

Doctor Willis diagnosed plaintiff’s problem as essentially the same and hospitalized him that same day. This physician had plaintiff x-rayed for evidence of possible disc damage and treated him conservatively with traction for a period of about eight days. Doctor Willis discovered continuous muscle spasms in the lumbosacral area and finally discharged plaintiff with instructions to use a back brace.

Doctor Willis referred plaintiff to Dr. A. E. Dean, Jr., an orthopedic surgeon in Shreveport, Louisiana, who initially examined him on April 12, 1974. This doctor performed subsequent examinations on April 16, 1974, and April 29, 1974. Doctor Dean’s examination revealed tenderness in the lower lumbar area and some narrowing at the jD-5, S-l interspace. His initial impression was that plaintiff suffered from a degenerative lumbosacral disc with some nerve root difficulty at times and felt that plaintiff may have possibly had a sprain superimposed upon this above described back condition.

Plaintiff returned to his home where he was continually under the care of Doctor Willis, who was of the opinion that plaintiff suffered from chronic lumbosacral injury with some nerve root irritation and felt that as of his September 12, 1974, examination that plaintiff was disabled from doing heavy work for an indefinite period of time. He also felt that plaintiff had not returned to normal since prior to his injury he had worked well without any pain, but could no longer do so.

Mr. Williams was also examined by Dr. Joseph Thomas, a general practitioner in Natchitoches, Louisiana, who saw him on July 1, 1974. Doctor Thomas felt that plaintiff had a possible ruptured interverte-bral disc at about L-4, D-5, and felt that surgery was a possible necessity. He referred plaintiff to Dr. D. F. Overdike, Jr., an orthopedic surgeon in Shreveport, in August. After examining plaintiff on the day of the trial (September 30, 1974) Doctor Thomas discovered no change in plaintiff’s condition since his original examination.

Doctor Overdike examined plaintiff extensively on August 8, 1974. He performed a myelogram and electromyogram, and finding no nerve root involvement, diagnosed plaintiff’s injury as a lumbar sprain or strain. He hospitalized the plaintiff for eight days and at that time felt that he was disabled. On August 23, 1974, Doctor Overdike was of the opinion that the plaintiff was not ready to return to work at heavy labor. At the time of the trial Mr. Williams was still under the care of this physician.

On two separate occasions, June 27, 1974, and August 26, 1974, the plaintiff was examined by Dr. Austin W. Gleason, an orthopedic surgeon in Shreveport, at the request of ■ the defendant-insurer, Liberty Mutual Insurance Company. Doctor Gleason found no disc problem, no nerve root irritation, and subsequently no disability. His findings were consistent after both examinations. He did, however, find some narrowing of the spaces at L-4, L-5, but did not feel that this condition was sufficient to cause disability. Doctor Gleason admitted, however, that plaintiff was suffering some degree of pain in his back on his final examination.

Defendant, Liberty Mutual Insurance Company, paid plaintiff compensation benefits of $65.00 weekly from April 8, 1974, until June 16, 1974, at which time benefits were terminated without resumption.

The issues presented by this appeal and answer thereto are:

1. Is plaintiff totally and permanently disabled as a result of the injuries he received from the above mentioned accident or accidents while in the defendant’s employ?

2. Did the trial judge properly deny defendant’s request for a new triál ?

3. Was Liberty Mutual Insurance Company’s termination of plaintiff’s weekly benefits arbitrary, capricious, or without probable cause so as to subject it to penalties and attorney’s fees as provided for by LSA-R.S. 22:658?

PLAINTIFF’S DISABILITY

The plaintiff in a workmen’s compensation suit need not prove the exact nature of his disability so long as he can show that he is suffering from such disability to a degree that he is prevented from performing his normal work duties. Wallace v. Spohrer-Pollard Contractors, 76 So.2d 312 (La.App. 2nd Cir. 1954).

As the Supreme Court stated in Bertrand v. Coal Operators Casualty Company, 253 La. 1115, 221 So.2d 816 (La. 1969):

“. . . where there is proof of an accident and of a following disability without any intervening cause, it is presumed that the accident caused the disability.”

The causal relation between the defendant’s disability and his work related accident may be inferred whenever there is proof of an accident and an ensuing disability without the showing of an intervening cause. Gradney v. Vancouver Plywood Company, Inc., 299 So.2d 347 (La.1974); Johnson v. Travelers Insurance Company, 284 So.2d 888 (La.1973); Bertrand v. Coal Operators Casualty Company, supra.

This court held in Ardoin v. Houston Fire & Casualty Insurance Company, 235 So.2d 426 (La.App. 3rd Cir. 1970) that:

“. in determining whether a claimant’s disability is causally related to an accident, great weight attaches to the fact of a sudden change from a condition of health or ablebodiedness prior to the accident to one of disability immediately thereafter. Nixon v. Pittsburgh Plate Glass Company, 161 So.2d 361, 367 (La. App. 3rd Cir. 1964); Taylor v. Mansfield Hardwood Lumber Company, 65 So.2d 360 (La.App. 2nd Cir. 1953).”

As we have previously stated in Roberson. v. Liberty Mutual Insurance Company, 316 So.2d 22 (La.App. 3rd Cir. 1975) :

“The disability of a workmen’s compensation claimant ‘is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, provided that .the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition.’ Bourque v. Monte Christo Drilling Corporation, 221 So.2d 604 (La.App. 3rd Cir. 1969). See also Porter v. Augenstein Construction Company, 280 So. 2d 861 (La.App. 3rd Cir. 1973); White v. E. A. Caldwell Contractors, Inc., 276 So.2d 762 (La.App. 3rd Cir. 1973); Freeman v. Standard Materials, Inc., 246 So.2d 258 (La.App. 1st Cir. 1971).”

The occurrence of plaintiff’s work related accidents of October 29, 1973, and March 6, 1974, is not disputed. The fact is also apparent that for a period of at least two years preceding the first accident the plaintiff was able-bodied and in sufficient health to perform as a heavy laborer in the construction trade. The record in this case provides an adequate basis for a finding that Mr. Williams can no longer function as a construction laborer without considerable difficulty and pain.

While the medical evidence is not altogether consistent concerning plaintiff’s disability, the trial judge was apparently convinced that a sufficient showing of disability had been made. Of the examining physicians who attended plaintiff after his last two accidents, Doctors Willis, Thomas, and Overdike would not certify him to return to his previous employment. Doctor Dean felt that plaintiff was not able to perform heavy manual labor as of his last examination on April 29, 1974. Only Doctor Gleason felt that plaintiff was not disabled. However, after his August 23, 1974, examination, this physician was not ready to permit plaintiff to return to construction work.

It is significant that Dr. Fred Willis, who treated plaintiff initially and who has continued as his attending physician since the accident, found on September 12, 1974, that Mr. Williams was disabled from doing any heavy work for an indefinite period of time. We find the rule stated in Babin v. Highlands Insurance Company, 290 So.2d 720 (La.App. 1st Cir. 1974) applicable to this situation:

“It is well settled that where the testimony of specialists in a workmen’s compensation case is conflicting or indicates only limited disability, it is not error for the trial court to accept instead, and accord greater weight to the testimony of the treating physician, even though he is only a general practitioner, because of his much greater opportunities for observation over an extended period of treatment. Gates v. Ashy Construction Company, Inc., 171 So.2d 742 (3rd La.App. 1965), writ refused 247 La. 678, 173 So. 2d 542 (1965); Harris v. Argonaut Insurance Company, 142 So.2d 501 (2nd La.App. 1962).”

After reviewing the medical evidence and according it the proper weight we find a reasonable basis for the trial judge’s finding of plaintiff’s disability.

The defendant makes a strong attempt to show that plaintiff’s disability was actually caused by a pre-existing degenerative spinal condition.- While the evidence indicates that as early as 1969 Mr. Williams was suffering from a narrowing of the spinal interspace at the lumbar 5 level we find no merit in defendant’s contention. The jurisprudence of this state stands firmly for the proposition that an employer takes an employee as he finds him and is liable to him for compensation even when the disabling accident was such only because of a pre-existing disorder in the employee. See Gatheright v. United States Fidelity and Guaranty Company, 267 So.2d 576 (La.App. 3rd Cir. 1972), writ refused 263 La. 612, 268 So.2d 675, and cases cited therein; and Harrell v. Delta Drilling Company, 251 So.2d 97 (La.App. 3rd Cir. 1971), writ refused 259 La. 896, 253 So.2d 221, and cases cited therein. See also the case of Clement v. Fidelity & Casualty Company of New York, 220 So.2d 575 (La.App. 3rd Cir. 1969) in which this court stated:

“The worker who is normally susceptible to disability from an accident is entitled to the full protection of the compensation statute, even though the same accident would cause little or no harm to a healthy worker. Nor is it important that the diseased or weakened condition might alone have eventually produced the disability. An employee’s disability is fully compensable when precipitated by an industrial accident, even though caused, also, by a contributing, pre-exist-ing dormant physical condition, or predisposition. Parish v. Fidelity & Casualty Company of New York, 124 So.2d 234 (La.App. 2nd Cir. 1960), cert. denied, and citations therein.”

Even if plaintiff’s degenerative back condition pre-existed his accidents, the fact remains that he was able-bodied and relatively healthy preceding those occurrences. At the very least, it must be said that plaintiff’s work-related injuries triggered or aggravated an already troubled back condition suffered by the plaintiff. Under these circumstances we must agree with the trial judge in his conclusion that the plaintiff is totally and permanently disabled as a result of the accidents in which he was injured while in the employ of Tidewater Construction Company.

DEFENDANTS’ APPLICATION FOR A NEW TRIAL

In their application for a new trial the defendants allege that since the trial on the merits there has been a discovery of new evidence which they should be allowed to submit to the court. Defendants’ basic contention is that at the time of the trial plaintiff was still under the care of Dr. D. F. Overdike and that since the trial, which was September 30, 1974, and after Doctor Overdike’s deposition, which was September 23, 1974, said physician has changed his position concerning plaintiff’s disability. Defendants assert that Doctor Over-dike would now testify that plaintiff is no longer disabled, thus destroying a portion of the basis for the trial judge’s finding of total and permanent disability. Defendants’ request for a new trial is based upon LSA C.C.P. Article 1972, which reads:

“Art. 1972. Peremptory grounds
A new trial shall be granted, upon contradictory motion of any party, in the following cases:
(1) Where the judgment appears clearly contrary to the law and the evidence ;
(2) Where the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial; or
(3) In jury cases, as provided in Article 1814.”

After the close of the trial on the merits, the note of evidence was left open so that the parties could obtain the depositions of two of the physicians and the insurance adjuster involved in this case. The depositions of Drs. Jackie D. Hucka-by, Charles E. Cook, and Mr. Tom St. Ger-main were taken as late as October 8, 1974. However, the defendants made no attempt to request an opportunity to re-examine Doctor Overdike during that period. Nor did they seek an extension of the note of evidence to cover a subsequent deposition of that doctor, although they were fully aware that the plaintiff was still under his care. While it is true that the case was re-opened in February to allow the introduction of additional evidence pertinent to the medical expenses incurred by plaintiff, the determination of disability had already been made by that time. Thus even if the alleged change of opinion by Doctor Over-dike could be considered “new evidence”, we feel that the defendants failed to exercise due diligence as required by LSA C. C.P. Article 1972 in an effort to obtain this testimony while the note of evidence was still open.

We are also of the opinion that the purported evidence alluded to by the defendants does not constitute new evidence as contemplated by the above cited codal provision. If this were the case, an insurer would have grounds for a new trial every time a doctor changed his mind or there was another new medical opinion available. At the time of the trial, and on the evidence submitted to the court (Doctor Overdike’s deposition included) there was a sound basis for concluding- that plaintiff was disabled. Doctor Overdike’s opinion at that time was one of disability. We are also of the opinion that LSA C.C. P. Article 1972 applies to evidence which existed at the time of the trial, but which was only discovered after its conclusion. Such is not the case in this litigation, and we find no basis for overturning the trial judge’s ruling denying defendants’ motion for a new trial.

Furthermore, defendants are possessed with an adequate remedy to review the compensation award under LSA R.S. 23:1331 which provides that any change in status of the employee’s condition may be reviewed at any time six months after the rendition of the original compensation judgment.

PENALTIES AND ATTORNEY’S FEES

Defendants contend from the outset regarding this issue that no demand was made upon them for resumption of compensation benefits prior to this suit, and therefore under LSA R.S. 22-658 the requisite sixty day period for resumption following demand has not lapsed. Thus defendants argue that they cannot be held liable for penalties and attorney’s fees.

We find no merit in this contention. Once a demand for payments has been made and the payments are terminated with the insurer denying liability for compensation in the subsequent suit, it is not necessary for an employee to make a second demand and wait an additional sixty days before penalties and attorney’s fees attach, should the employer or insurer’s actions be arbitrary, capricious, or without probable cause. See Chavis v. Maryland Casualty Company, 307. So.2d 663 (La.App. 3rd Cir. 1975), writ refused 310 So.2d 854; Bushnell v. Southern Farm Bureau Casualty Insurance Company, 271 So.2d 267 (La.App. 3rd Cir. 1972); Smith v. Kelly Labor Service, 239 So.2d 685 (La.App. 4th Cir. 1970); Plaisance v. Collins Industries, Inc., 193 So.2d 816 (La.App. 1st Cir. 1966), writ refused 250 La. 274, 195 So.2d 149.

In his deposition, Mr. Tom St. Germain, the adjuster assigned to this case by Liberty Mutual Insurance Company, testified that he terminated plaintiff’s weekly compensation benefits based upon the report received by him from Doctor Dean. Although the adjuster later received a bolstering report from Doctor Gleason, that second communication is irrelevant 'since it had no bearing on the state of mind of the adjuster at the time he decided to terminate compensation. The actions of an insurer in terminating benefits are to be judged only by the knowledge which it possessed at the time of termination. Roberson v. Liberty Mutual Insurance Company, 316 So.2d 22 (La.App. 3rd Cir. 1975); King v. Insurance Company of North America, 288 So.2d 878 (La.App. 3rd Cir. 1974) ; Delean v. B. F. Trappey’s Sons, Inc., 285 So.2d 297 (La.App. 3rd Cir. 1973).

Doctor Dean’s letter is dated June 3, 1974, and is addressed to Liberty Mutual in Shreveport, Louisiana, attention “Tom St. Germain, Claims Adjuster”. It reads in relevant part as follows :

“In answer to your letter concerning Simpson Williams, on his last examination of April 29, 1974, I felt that he should respond to the conservative treatment with some traction and mild analgesics.
I am unable to give any final disability at this time, however, I would expect him to have responded to conservative treatment at least within a period of 2-3 months from the time of his injury, which was 3/6/74.” (Emphasis added)

We are unable to discover any reasonable basis in Doctor Dean’s letter to the adjuster for a conclusion that plaintiff would definitely have recovered to a degree sufficient to return to his prior activity as of the date compensation was terminated. This physician uses terms such as “should respond”, “would expect him to have responded” and states that he is unable to give any final disability at that time. It is incumbent upon the insurer to make a reasonable effort to ascertain plaintiff’s exact condition at the time which compensation benefits are terminated. See Chavis v. Maryland Casualty Company, supra, and numerous cases cited therein. We feel that Doctor Dean’s letter is simply too vague and indecisive to support a good faith refusal to continue workmen’s compensation benefits. Therefore we must disagree with the trial judge in his finding that Liberty Mutual Insurance Company was not arbitrary, capricious, or without probable cause in its decision to terminate Mr. Williams’ benefits as of June 16, 1974.

The final issue before us is the amount of attorney’s fees and penalties to be awarded plaintiff. In determining the amount of attorney’s fees to be awarded, the relevant factors include the degree of skill of the attorney and the volume of work performed by him in prosecution and collection of the claim. See King v. Insurance Company of North America, supra, and Roberie v. Ashy Construction Company, 215 So.2d 857 (La.App. 3rd Cir. 1968). The litigation at bar required plaintiff’s attorney to participate in no less than a half dozen depositions in addition to a trial on the merits. A number of these depositions were taken in a parish other than that in which the case was tried. We also take notice of plaintiff’s attorney’s expertise in this field and the subsequent value of his time in such matters. Therefore we find plaintiff’s attorney’s request of fees of $4,000.00 within the bounds of reason and hereby award that amount. See the cases of Ray v. Superior Iron Works and Supply Company, Inc., 284 So.2d 140 (La.App. 3rd Cir. 1973), writ denied, 286 So.2d 365 ($4,000.00); Bushnell v. Southern Farm Bureau Casualty Insurance Company, supra ($3,000.00); Scott v. Hartford Accident and Indemnity Company, 302 So.2d 641 (La.App. 3rd Cir. 1974) ($3,000.00). The $4,000.00 award herein granted is intended as compensation for all of attorney’s services, including the trial and appeal involved in this matter.

The further award of 12% interest shall be applied from the date on which benefits were terminated (June 16, 1974), until date that such back payments are finally made current.

For the above and foregoing reasons the judgment of the trial court is affirmed insofar as it declares plaintiff to be totally and permanently disabled within the terms of the workmen’s compensation act. The judgment of the district court is reversed insofar as it denies plaintiff recovery of statutory penalties and attorney’s fees against Liberty Mutual Insurance Company, and it is hereby ordered that there be judgment in favor of plaintiff and against defendant Liberty Mutual Insurance Company, in the amount of $4,000.00 plus 12% penalties on weekly benefits which are overdue, until paid.

Costs of this appeal are assessed against defendants.

Affirmed in part, reversed in part, and rendered.

PAVY, J., concurs in the result.


author: MORIAL, Judge. REDMANN, Judge

text:
    LOUISIANA STATE EMPLOYEES’ RETIREMENT SYSTEM v. CAMPO REALTY COMPANY, INC.
    No. 7245.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1976.
    Rehearing Denied March 16, 1976.
    William J. Guste, Jr., Atty. Gen., Warren E. Mouledoux, First Asst. Atty. Gen., Louis M. Jones, Asst. Atty. Gen., for plaintiff-appellee.
    Henican, James & Cleveland, Carl W. Cleveland, Joseph P. Henican, III, New Orleans, for defendant-appellant.
    Before REDMANN, SCHOTT and MORIAL, JJ.
   MORIAL, Judge.

This is an appeal from a judgment of the district court dismissing defendant’s suit for an injunction to arrest seizure and sale under executory process.

On July 30, 1974 defendant, Campo Realty Company, Inc. received $4,100,000 from plaintiff, the Louisiana State Employees Retirement System, pursuant to a first mortgage secured by the property known as the International American Motor Inn. When the first monthly payment of $35,225.84 became due on September 1, 1974, defendant remitted its check which was returned because of insufficient funds. This check was not made good and defendant also failed to make the payment which became due on October 1, 1974.

At a meeting of the parties on October 8, 1974, it was revealed that defendant was unable to presently meet its monthly mortgage payments. Counsel for plaintiff suggested that if defendant could pay $5,000 per week on its obligation to be credited against interest, the balance of interest and principal could be postponed for six months. Defendant stated it could not produce this much cash weekly but it was expecting an Internal Revenue Service tax refund of approximately $33,000 which it would assign to plaintiff. No decision was made at this meeting.

On October 30, 1974 defendant assigned its “expected” tax refund to plaintiff. Soon after, representatives of defendant met with plaintiff’s investment committee. Defendant therein presented a proposal for a six month moratorium which it alleges had provisions for weekly payments of $2,000 plus the previously assigned tax refund. Witnesses for plaintiff though testified that in addition to the tax refund and the weekly payments, defendant was also to make good the NSF check. It is agreed by all parties that the proposal was taken under advisement and was neither accepted nor rejected at the conclusion of this meeting.

Nonetheless, on November 12, 1974 defendant began making $2,000 weekly payments, which continued until December 9, 1974. The tax rebate of $30,091.85 also was eventually received and all funds were placed in escrow. Defendant claims it terminated its weekly payments because it was advised by its counsel that plaintiff was no longer honoring the moratorium and intended to foreclose.

Plaintiff thereafter filed suit on December 26, 1974 seeking to foreclose via execu-tiva. On January 14, 1975 defendant filed a petition for injunction to arrest the seizure and sale under executory process, alleging the existence of a valid and binding moratorium agreement and a defect in the act of mortgage. The trial court refused to enjoin the sale. Defendant appeals from this judgment. We affirm.

Defendant contends the trial court erred in not holding that it had satisfied a moratorium agreement consisting of the assignment of the tax refund and weekly payments of $2,000. We do not agree.

Defendant bases its argument mainly upon plaintiff being estopped to deny the agreement because of its acceptance of five weekly payments and the assignment. We consider this to be of no moment in this particular factual framework. At the time of the investment committee meeting defendant had made no payments on the mortgage and was already $122,717.45 in arrears. As stated before, no moratorium agreement was finalized at this meeting. However, it was indicated that the assignment of the tax refund, ^ou-pled with $2,000 weekly payments and satisfaction of the NSF check, would lead to serious consideration of a moratorium. Soon after, John Campo, president of defendant corporation, assured representatives of plaintiff that the check would be made good and he was then told to begin the $2,000 payments as a gesture of good faith. When after several promises to deliver the check, payment still did not materialize, plaintiff then decided to end negotiations on a moratorium and foreclose.

After a full review of the record we must conclude that a moratorium agreement was never effectuated. Although numerous discussions and proposals on the subject took place, representatives of plaintiff never agreed to merely accept $2,000 per week and the tax assignment in consideration for a moratorium. The record preponderates in favor of the conclusion that before any agreement could have become effective defendant had to first satisfy the NSF check. Plaintiff cannot now be es-topped to deny an agreement which never existed.

In conjunction with its version of the moratorium agreement, defendant alleges the doctrine of anticipatory breach of contract as its reason for discontinuing the weekly payments after notice of the pending foreclosure. While we recognize the existence of that doctrine in this state, it is inapplicable in this instance because of our conclusion that a moratorium never came into effect.

Finally, defendant asserts the trial court should not have upheld the authenticity of the act of mortgage because in his deposition the closing notary could not identify one of the witnesses signatures. In its reasons for judgment, the court found that while the notary could not recognize the signature, his testimony sufficiently established that this person was present when the document was signed by the parties. An authentic act complete upon its face carries a presumption of validity LSA-R.C.C. Art. 2236; Eschete v. Kraemer, 129 So.2d 475 (La.App. 1 Cir. 1961). The trial judge apparently concluded that defendant had not overcome this presumption. We cannot say this conclusion is manifestly erroneous.

The judgment of the district court is affirmed.

Affirmed.

REDMANN, Judge

(concurring) :

The extension of time that defendant alleges plaintiff made is unenforceable for lack of cause; C.C. 1893; Dubuch v. Goudchaux, 1851, 6 La.Ann. 780.


author: BOLIN, Judge.

text:
    Marilyn Brown REDDEN v. LIBERTY MUTUAL INSURANCE COMPANY et al. Donald W. SHERRILL, Defendant-Third Party Plaintiff-Appellant, v. FIREMAN’S FUND INSURANCE COMPANY, Third Party Defendant-Appellee.
    No. 12828.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 9, 1976.
    Rehearing Denied March 15, 1976.
    Writ Refused April 30, 1976.

      Bodenheimer, Jones, Klotz & Simmons by J. W. Jones, Shreveport, for Donald W. Sherrill.
    Blanchard, Walker, O’Quin & Roberts by J. Edgerton Pierson, Jr., Shreveport, for Fireman’s Fund Ins. Co.
    Before BOLIN, PRICE and HALL, JJ.
   BOLIN, Judge.

Marilyn Brown Redden filed a wrongful death action against several defendants to recover damages for the death of her husband in an automobile-truck accident allegedly caused by the negligence of defendant Donald W. Sherrill, the driver of the truck. In an incidental demand arising out of the wrongful death action, the lower court granted summary judgment against Donald W. Sherrill, defendant and third party plaintiff, and in favor of Fireman’s Fund Insurance Company, third party defendant and Sherrill’s automobile liability insurer. From this summary judgment Sherrill appeals.

The issues on appeal are whether a question of material fact existed which precluded the use of summary judgment and, if not, whether Fireman’s Fund was entitled to judgment as a matter of law on the basis of the undisputed facts.

In her wrongful death action, plaintiff Redden named the following parties as defendants : Sherrill, Fireman’s Fund, Crescent Ford Truck Sales, Inc., (hereafter referred to as “Crescent”), Liberty Mutual Insurance Company (Crescent’s liability insurer), Dealer’s Transport Company (hereafter referred to as “Dealer’s”), and Ford Marketing Corporation (hereafter referred to as “Ford”).

The pleadings and answers to interrogatories reveal Ford sold two trucks to Crescent. Dealer’s was under contract with Ford to deliver the trucks from the Kansas City Southern Railway’s yards in Shreveport to Crescent’s place of business in New Orleans. Elza Montgomery, a truck driver for Dealer’s, hired Donald Sherrill to drive one of the trucks to New Orleans for $50 to $75, the exact amount depending on the expenses incurred during the trip. While enroute to New Orleans, the truck Sherrill was driving was involved in an accident which resulted in the death of plaintiff Redden’s husband.

Fireman’s Fund moved for summary judgment on plaintiff Redden’s main demand. The motion was granted and Fireman’s Fund was dismissed from the suit. Thereafter, defendant Sherrill filed an answer and a third party demand. In his answer, Sherrill denied any negligence and admitted his employment by Crescent, Ford, or Dealer’s. The third party demand was against Liberty Mutual and Fireman’s Fund, alleging that Sherrill was an insured under Liberty Mutual’s policies issued to Ford, Crescent, and Dealer’s or, alternatively, was an insured under his own automobile liability policy issued by Fireman’s Fund.

Fireman’s Fund moved for summary judgment on Sherrill’s third party demand on the ground that no question of material fact existed and it was entitled to judgment as a matter of law.

Fireman’s Fund contended that Sherrill’s answer to interrogatories in which he stated Elza Montgomery was going to pay him $50 to $75 for driving the truck to New Orleans brought Sherrill within the following exclusionary clause of the policy issued to Sherrill by Fireman’s Fund:

This policy does ' not apply under Part I [liability insurance coverage]: (h) to a non-owned automobile while maintained or used by any person while such person is employed or otherwise engaged in (1) the automobile business of the insured or of any other person or organization, (2) any other business or occupation of the insured, (Emphasis added)

The trial court granted the motion for summary judgment and dismissed Fireman’s Fund from the suit and Sherrill appealed.

Louisiana Code of Civil Procedure Article 966 sets forth the requirements for obtaining a summary judgment, and states in its final sentence:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.

Sherrill argues that Crescent, Ford and Dealer’s have all denied that Sherrill was their employee and that the trial court could find that Sherrill was not the employee of any of them. Sherrill contends in that event his policy with Fireman’s Fund would provide coverage.

No party has disputed the fact that Sherrill was to receive $50 to $75 for driving the truck to New Orleans as Sherrill stated in his answers to interrogatories propounded by plaintiff Redden. Hence, we find there was “no genuine issue as to material fact.” The remaining question is whether that undisputed fact brings Sher-rill within the exclusionary clause of the policy, entitling Fireman’s Fund to judgment “as a matter of law.”

In brief, appellee has referred us to the case of Seaford v. Nationwide Mutual Insurance Co., 253 N.C. 719, 117 S.E.2d 733, 85 A.L.R.2d 496, and the annotation following that case at 85 A.L.R.2d 502. Sea-ford is very similar to this case. In that case, a policy exclusion identical to the one involved in this suit was held to exclude liability coverage when the insured had an accident while driving a non-owned trac tor-trailer rig on a one time basis only. The annotation following that case states:

Among the cases passing upon the question, it has generally been held that the term “business or occupation” as used in the policy provision excluding coverage of a “non-owned” or “other” automobile while used in a “business or occupation” of the insured is not restrictive in its meaning unless so made by a provision o.f the policy, and therefore the courts • have construed the term to include not only the regular business or occupation of the insured upon which he primarily depends for his livelihood but also any other collateral business or occupation, regardless of whether such a business or occupation is pursued for purposes other than pecuniary gain, and they have also construed the provision as applicable even where the insured is employed to drive a vehicle for one trip only, or where the insured, while in the employ of another, is driving an automobile on one particular occasion outside the duties ordinarily required of him.

We have not found a Louisiana case which holds that driving a non-owned vehicle for compensation on a one time basis only constitutes use of a non-owned automobile in the business or occupation of the insured.

In Lee v. Allstate Insurance Company, 274 So.2d 433 (La.App. 1st Cir. 1973), a part time employee of a T.G.&Y. Store, who was also a full time student at LSU, was involved in an accident while on an errand for his employer. The employee’s father’s insurer denied liability coverage on the basis of an exclusionary clause similar to the one at issue in this suit. The court, in finding the exclusionary clause applicable, stated:

Likewise, we have no hesitation in adopting the trial court’s finding that Perry was driving the 1963 Chevrolet, in the contemplation of the Allstate policy, as a non-owned automobile in his occupation. The obvious rationale of the exclusion in the Allstate policy is found in precisely a situation such as we have before us. The insurer is not undertaking by its policy to extend coverage to their policy holder while he is driving someone else’s car in his business or occupation since the responsibility for providing insurance coverage should rest with the insured’s employer or other person for whose benefit the business was being conducted. There is considerable argument by counsel ánd there was considerable interrogation of the witnesses relative to whether the work at the T.G. and Y. Store constituted young Perry’s occupation. We do not think that the questions of whether he was a part-time or a full-time worker, whether he was a sometimes student and a sometimes store employee or whether he worked less than a forty hour week are determinative of the issue. We think that in the context presented, the term occupation refers to a situation where he is gainfully employed or operating a business and where he is going about the duties of his employment or business.

See also Blackwell v. United States, 321 F.2d 96 (5th Cir. 1963), where the exclusionary clause was held to apply and exclude liability coverage when a member of the National Guard on annual two weeks summer camp was involved in an accident while driving a National Guard truck.

We find Sherrill was driving a non-owned automobile while engaged in his “business or occupation” as that term is used in the exclusionary clause. Since the policy excluded coverage, Fireman’s Fund was entitled to summary judgment as a matter of law.

The judgment of the trial court is affirmed at appellant’s cost.


author: BARNETTE, Judge.

text:
    Jack BOOTHE and Billie G. Boothe v. AMERICAN ASSURANCE CO. et al.
    No. 10556.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.
    Rehearing Denied March 1, 1976.
    Writ Refused April 23, 1976.

      Robert J. Vandaworker, Taylor, Porter, Brooks & Phillips, Baton Rouge, for defendants-appellants.
    W. Hugh Sibley, Greensburg, for plaintiffs-appellees.
    Before LANDRY, COVINGTON and BARNETTE, JJ.
   BARNETTE, Judge.

The plaintiffs, Jack Boothe and his wife, Billie G. Boothe, suffered substantial damage to their residence and household furnishing as the result of a flood. They brought this suit for damages against Bob Wickes, an insurance agent and his errors and omissions liability insurer, American Assurance Company, for damages for the alleged failure of the agent, Wickes, to obtain or notify them of his failure to obtain for them flood insurance for which an annual premium was paid in advance. Made defendant also was Aetna Casualty and Surety Company (cited as Aetna Life & Casualty Insurance Company) to whom the defendant, Wickes, made application for flood insurance on behalf of the plaintiffs.

The application form signed by the agent, Wickes, and mailed to Aetna, copy of which was filed in evidence, is dated May 9, 1973 and indicates flood insurance coverage from May 24, 1973 to May 24, 1974. A premium payment of $30 was made by plaintiffs on the day of application, May 9, 1973. On September 3, 1973, plaintiffs residence and household goods were substantially damaged by a flood, The plaintiffs have alleged that they were not informed by either Wickes or Aetna that the application was not accepted and that they were not insured, until after claim was made following the casualty.

Judgment was rendered in favor of the plaintiff in the trial court against Bob Wickes and American Assurance Company in solido in the principal sum of $6,346.50. Their demands against Aetna were rejected. The plaintiffs did not appeal the dismissal of their suit against Aetna and that portion of the judgment is final. The defendants, Wickes and American Assurance Company, appealed suspensively.

There is no serious dispute of the facts. Jack Boothe and his wife, Billie G. Boothe, owned and occupied a small residence in Livingston Parish located very near Blood River and more specifically very near a canal extending from the river to provide a boat slip and access by boat to the river. Mr. Boothe is a merchant seaman and is away from home long periods of time. Mrs. Boothe has his power-of-attorney and transacts business for the community in his absence.

The defendant, Bob Wickes, a licensed insurance broker is an agent for the State Farm Insurance group and conducts his business as Bob Wickes Agency for State Farm. He represents no other companies but is free to place insurance with other companies if it cannot be handled by State Farm or when, as in this case, the coverage is obtainable only from a governmental agency, such as the National Flood Insurance Program. Mr. and Mrs. Boothe had previously done business with the Wickes Agency for automobile liability insurance.

On May 9, 1973, Mrs. Boothe applied to Mr. Wickes for flood damage insurance and said to him, allegedly, that she had heard or had information that Livingston Parish had been approved for flood insurance. Mr. Wickes had the necessary forms for making application for flood insurance with “INSURANCE COMPANIES MEMBERS OF NATIONAL FLOOD INSURERS ASSOCIATION (IN COOPERATION WITH THE U. S. GOVERNMENT).’’ The form used also contained the further identification:

“REGULAR FLOOD INSURANCE PROGRAM — DWELLING BUILDING AND CONTENTS — DEDUCTIBLE COVERAGE APPLICATION AND DECLARATIONS FORM (For Use Only With the Flood Insurance Policy).” He used one of these forms and indicated coverage of $5,000 on the dwelling and $5,000 on the contents. The deductible amount was $200. The form, signed by him, provided “Policy Term 1 Year, from 5-24-73 to 5-24-74.” A premium of $30 was indicated, and * that amount paid by Mrs. Boothe.

The Aetna Casualty and Surety Company was the designated company to “service” and “process” applications for National Flood Insurance in Louisiana, a program under the administration of Housing and Urban Development. The application prepared for Mrs. Boothe, and signed by Mr. Wickes, was mailed on the same day (May 9, 1973) addressed to Aetna Casualty and Surety Company in New Orleans. This was the first application for flood insurance that Mr. Wickes had handled. He did not know if flood insurance was available, but according to his testimony agreed to submit the application.

Mr. Wickes called another agent (as he remembered) to determine the premium, which he found to be $30. Mrs. Boothe gave her check payable to him for that amount, which in due time was cleared and returned cancelled in Mrs. Boothe’s bank statement. Mr. Wickes made out his check for $20 which he placed in an envelope with the application addressed to Aetna and requested Mrs. Boothe (as an accommodation to him and to insure earlier posting) to drop it in the mail box near his office. This she testified she did immediately upon leaving his office. A photocopy of the completed and signed application form was given to Mrs. Boothe and was filed in evidence. The application form contains the following statement:

“Insurance is provided only (1) against the peril of flood as defined in the policy to which this form is attached, (2) with respect to those items specifically described herein and for which a specific amount of insurance is shown below, and (3) for the policy term specified below; and, unless otherwise provided, all conditions and provisions of this form and of the policy to which it is attached shall apply separately to each item covered. * * * [Name and address of insured and name and address of the agent and blank for policy number indicating it as not a renewal] Policy Term 1 Year, from 5-24-73 to 5-24-74”

Mrs. Boothe’s testimony was in substance that Mr. Wickes did not specifically tell her she was insured or that she was not, but she assumed from his acceptance of the premium and the terms of the application form given her that she was covered for the term indicated. Mr. Wickes was not positive that he told Mrs. Boothe that she would not be covered until the application was accepted. He testified:

“To the best of my knowledge, Mrs. Boothe came in and she said she didn’t know whether she could be covered under this flood — however this program— flood insurance — National Flood Insurance Program. I said, O.K., I will submit an application but at that time I believe I told her to look at this program that as far as I was concerned I jilst don’t know that much about the thing, the instructions. So if you are eligible, fine, I filled out the application and I filled it out, gave her the application [to be mailed] * *

Apparently Mr. Wickes thought the plaintiffs were covered by flood insurance. This is clearly implied by the following letter:

“6 September 1973
“Aetna Life & Casualty P. O. Box 61003 New Orleans, La. 70161
Dear Sir,
On 5/9/73 I sent in an application for flood insurance for Mrs. Billie G. Boothe, P. O. Box 236, Springfield, La. 70462. The policy period was 5/24/73 to 5/24/74.
Mrs. Boothe has now had a loss. In the kit that was furnished me I cannot find any claim forms. Would you please send me 6 or 8 forms. Also, I cannot find her policy number. Would you also please let me know what it is.
Thank you.
Sincerely,
[signed] Bob Wickes”

Any impression Mr. Wickes might have had to the contrary and any understanding which Mrs. Boothe had on May 9, to which they both gave parol testimony will not be considered' in contradiction of or to vary the terms of the written application form. Civil Code Article 2276. The instrument itself is the best evidence of its contents and meaning. It is the province of the court and not that of the litigants to interpret that meaning when the issue arises.

Our examination of the application form, copy of which was given to the plaintiffs and filed in evidence, convinces us that any reasonable person who had paid the specified premium would assume that the insurance coverage was effective from May 24,1973 to May 24, 1974.

Upon receipt of the September 6, 1973 letter from Mr. Wickes, Mr. Paul J. Du-sang, claims representative for Aetna testified that he searched his company’s records and could not find that the application was ever received and processed. Mr. Wickes testified that his check to Aetna mailed with the application had never cleared the bank. No explanation of these circumstances was given by any witness.

Mr. Wickes tendered his check for $30 to plaintiffs on December 7, 1973 for reimbursement of the premium paid. They refused to accept the check. There is no denial that the plaintiffs were not informed by anyone until after the casualty that the insurance was not available arid that they were not covered.

Counsel for appellants relies primarily on the argument that the loss sustained by the plaintiffs did not result from Mr. Wickes’ failure to timely notify them of his inability to procure the insurance for the reason that it was impossible for such insurance to have been obtained from any source. This fact was established by the testimony of Mr. Dusang. Such insurance can only be obtained through the National Flood Insurance Program and then only in areas approved for such coverage. Livingston Parish had never been approved for such insurance. On this premise counsel for appellants argues that the agent cannot be held liable for not doing that which was impossible to do, citing Julienne v. Touriac, 13 La.Ann. 599 (1858). That was a case involving failure to perform a contractual obligation which became impossible by the passage of an act by the Legislature prohibiting the doing of that which had been contracted to be done.

The principle of law enunciated in that case is perfectly sound but does not apply in this case. It was not possible for Wickes to obtain from any source the flood insurance applied for, but this did not relieve him of the obligation to his client to pursue the application with diligence and to timely inform his client that the insurance was not obtainable. When, after a reasonable time and no reply was received from Aetna, Mr. Wickes was less than diligent in not pursuing the application further. Had he done so he would have known that the coverage could not be obtained, and Mrs. Boothe could then have been notified. Obtaining flood insurance from some other source was not the only option left to plaintiffs had they been timely notified of noncoverage.

Counsel for appellants counters this argument with the further argument that plaintiffs had owned the property since 1969 and had taken no steps to protect it from flooding, such as by raising its foundation; nor had they made any attempt to sell it or take any other measures which they now suggest as options. This argument is without merit. We will not speculate what measures the plaintiffs might have taken or not have taken if they had been informed that they could not get flood insurance. It certainly was within the realm of possibility that any one of several alternatives could have, been employed. If nothing more, they could have returned to their former use of the property as a week-end vacation cottage and moved their major furnishings to another location and thus reduced the extent of loss.

Mrs. Boothe thought flood insurance was obtainable when she made application to Mr. Wickes. His actions upon receipt of her application completely justify her assumption that she and her .husband were insured against flood damage in the amount stated and for the term indicated. Mr. Wickes also believed that the coverage had been obtained as reflected by his letter to Aetna informing Aetna of the casualty claim. His failure to follow up the application with diligence and promptly notify his client of their non-coverage, renders him liable for damages.

The applicable jurisprudence is summed up well in Karam v. St. Paul Fire & Marine Insurance Company, 281 So.2d 728 (La.1973). The Supreme Court there said:

“An insurance agent who undertakes to procure insurance for another owes an obligation to his client to use reasonable diligence in attempting to place the insurance requested and to notify the client promptly if he has failed to obtain the requested insurance. The client may recover from the agent the loss he sustains as a result of the agent’s failure to procure the desired coverage if the actions of the agent warranted an assumption by the client that he was properly insured in the amount of the desired coverage. C.C. 3002 and 3003; Kieran v. Commercial Union Insurance Company of New York, 271 So.2d 889 (La.App. 4th Cir. 1973); Hight v. Stewart, 265 So.2d 640 (La.App.2d Cir. 1972); Bordelon v. Herculean Risks, Inc., 241 So.2d 766 (La.App. 3d Cir. 1970); Shrv Teletype Coin Exchange, Inc. v. Commercial Union Insurance Company of New York, 191 So.2d 208 (La.App. 2d Cir. 1966); Arceneaux v. Bellard, 149 So.2d 444 (La.App. 3d Cir. 1963); Brown v. Stephens Buick Company, 139 So.2d 579 (La.App. 4th Cir. 1962).”

See also Ballon v. Smith, 299 So.2d 501 (La.App. 4th Cir. 1974) and Riley v. Carver General Insurance Agency, Inc., 279 So.2d 698 (La.App. 4th Cir. 1973), writ refused, 282 So.2d 523 (La.1973).

The quantum of damage is not mentioned in the briefs before us, but on oral argument counsel for appellants made a point of the alleged insufficiency of proof given by the plaintiffs in support of their allegations of loss. There is no testimony in the record before us on this issue except that of the plaintiffs and one witness called in their behalf. They testified and filed in evidence an estimate of repair from a contractor in the amount of $4,400. They gave their testimony of the value of the items of household goods destroyed and the estimated cost of replacement. One witness in their behalf, Byron H. Wild, corroborated their description of the damage.

In the absence of contradictory testimony on this issue by the defendants, we find no manifest error in the trial judge’s acceptance of the testimony of the plaintiff’s witnesses.

We do not know, and it is not necessary for us to decide if or why Aetna did not receive the application form, but in any event, the defendant, Wickes, was negligent in not inquiring why no response from Aetna had been received. He had more than three months in which to make an inquiry or in some manner follow up the application and to notify the plaintiffs of his inability to procure the insurance. He and his errors and omissions insurer are therefore liable in solido for the loss sustained as a result of that failure.

There was no privity of contract between the plaintiffs and the defendant, Aetna. If there was a breach of duty on Aetna’s part in not notifying Mr. Wickes of its inability to procure the insurance applied for, that is a matter between Mr. Wickes and Aetna.

For the foregoing reasons the judgment appealed is affirmed at appellants’ cost.

Affirmed.


author: BAILES, Judge Pro Tem.

text:
    Mrs. Rose Z. C. HANEY v. T G & Y STORES, INC., et al.
    No. 10551.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.
    Rehearing Denied March 1, 1976.

      John B. Noland, Baton Rouge, for appellant.
    Sargent Pitcher, Jr., Baton Rouge, for appellees.
    Before SARTAIN, J., and BAILES and PICKETT, JJ. Pro Tem.
   BAILES, Judge Pro Tem.

This is an action in tort. Plaintiff sued defendants, T G & Y Stores, Inc., T G & Y Stores Company of Louisiana, Inc., and Continental Insurance Company, to recover damages which she sustained when she fell in a T G & Y store in Baton Rouge, Louisiana, on October 9, 1973. The trial court awarded her lost wages and medical expenses of $2,111.75 and $2795.00 for her personal injuries, for a total award of $4,906.75. Defendants appealed. Plaintiff answered the appeal seeking an increase in the award for personal injuries. We affirm.

The facts herein are almost without conflict. On October 9, 1975, the petitioner was shopping in that place of business as she had done on previous occasions. Immediately before the fall, plaintiff was looking at a purse display located on the top of a merchandise counter. As she reached the end of the counter, she began to make a left turn around the end of it and, as she did so, struck her right toe on an object on the floor and fell, sustaining certain bodily injuries.

The record indicates that after 3 p. m. on that afternoon, the plaintiff, a registered nurse, began shopping in the rear of the store and, upon finishing, began to walk toward the cash registers near the front. As she did so, her attention was attracted to the display previously mentioned. The fall that ensued as she moved around the counter to look at the merchandise was, according to the plaintiff’s evidence, caused by a pallet or display counter support which was described as being some three feet square by. four inches high and which, at that time, was protruding from beneath the counter below the purse display.

At the trial, in addition to the testimony of the plaintiff, three persons were heard who were present at the time of this incident. John R. Cummings, whose attention was attracted by the commotion after the fall, described the platform upon which the plaintiff tripped to be an unmarked wooden structure of the approximate dimensions noted earlier herein. Because of its unnoticeable position, he felt that it created a hazard and he expressed that belief twice at that time to persons present, one of whom he thought to be a store employee.

Richard Simmons, Jr., the acting supervisor of the store, affirmed that he was there on the date of the fall and that he thereafter attended to the plaintiff and drove her home when she had sufficiently recovered. He testified that, although in his recollection there was no wooden protrusion from the bottom of the purse counter, it was possible that in the rearranging of the display, some of the upper shelves, which were easily removable, might not have been in place.

Also present was Brent Michael Dupuy, the manager of the store, who was talking with Simmons at the time of the accident. He affirmed the testimony of Simmons to the effect that he recalled no uncovered counter support as described by Cummings, but he also was not positive that the upper shelves were installed.

The evidence clearly preponderates to the effect that a dangerous object was allowed to extend out into the path of a customer whose attention was attracted to a merchandise display and away from the aisle in which she was walking. The testimony of the T G & Y employees indicates some degree of uncertainty on their part as to the presence of the display support, however, it is unconvincing when compared with the positive statements of Cummings who was present, noticed the size and position of the obstruction, and commented on its dangerous nature to onlookers, one of whom was believed to be a store employee. His account of the incident seems accurate and entirely consistent with the sequence of events described by Mrs. Haney. She could not testimonially describe the obstruction as she never saw it. A presumption of negligence has been created which the defendants have failed to overcome.

The principles of law which imposes liability on the storekeeper are clearly enunciated in the jurisprudence of this state. The law imposes on the merchant the active and positive duty of ordinary care to keep the premises, the aisles and passageways safe for the customer. The facts herein clearly show that this duty was not discharged by the storekeeper. The trial court found negligence on his part, and we perceive no error therein.

In addition to arguing that the storekeeper was free from negligence, defendant urges that we should find the plaintiff guilty of contributory negligence. This we cannot do. The display of purses were so arranged to get the attention of the shopper. That is the very purpose of the display of the seller’s wares. Hopefully, the better the display the more attention it will attract and the more purse sales the display will promote. The inattention of the shopper as to where he places his foot is the natural consequence of the attractive display. The cause in fact of the plaintiff tripping over the projection of the base of the display into the aisle was the breach of the duty to keep the passageway free from obstructions.

In the modern self-service type store, the patron has a right to presume that the aisles and passageways where it is intended for customers to walk will be free from obstructions and reasonably safe while his attention is directed to the inspection of merchandise on display. See Provost v. Great Atlantic & Pacific Tea Company, 154 So.2d 597 (La.App. 3rd Cir. 1963); Chauvin v. United States Fidelity & Guaranty Co., 223 So.2d 441 (La.App.3rd Cir. 1969); Tripkovich v. Winn-Dixie Louisiana, Inc., 284 So.2d 80 (La.App. 4th Cir. 1973); Bergeron v. Employers-Commercial Union Companies, et al., 306 So.2d 367 (La.App. 3rd Cir. 1975).

The obstruction here does not impress us as being an obvious and ordinary or easily observable danger which should have been seen by a patron in view of the surrounding circumstances. We find no merit to the affirmative defense of contributory negligence. We find no negligence on the part of the plaintiff.

We conclude that the award of the trial judge for the claim made out by the plaintiff should not be disturbed. Although the various amounts given were not itemized in the judgment, her lost wages and medical expenses of $1,557.00 and $554.75, respectively, were presumably awarded in full.

Her personal injuries resulting from this fall were described by the testimony of Dr. F. C. McMains and by a report submitted by Dr. Thomas Campanella, both orthopedic surgeons. Dr. McMains stated that she suffered a left shoulder-arm syndrome together with a sprain of the neck. Although she required some physical therapy treatments, her recovery was complete with the exception of a 5 per cent shoulder disability. According to Dr. Campanella, it seems that she also experienced an undis-placed fracture of the greater tuberosity of the left humerus, from which she recovered fully and without disability. The award of $2,795.00 substantially compensates the petitioner for those injuries and does not amount to an abuse of the wide latitude allowed the trial judge in fixing damages. Bitoun v. Landry, 302 So.2d 278 (La. 1974).

For the foregoing reasons, the judgment appealed is affirmed, at defendants’ cost.

Affirmed.


text:
    Mrs. Joyce Perez GELPI v. BEN DEVELOPMENT COMPANY, INC., in Liquidation through Anthony J. Vesich, Jr., Liquidator, et al.
    No. 7511.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 24, 1976.

      Clarence F. Favret, Jr., New Orleans, for relator.
    W. Eric Lundin, III, New Orleans, for respondents.
    Before SAMUEL, REDMANN, GU-LOTTA, MORIAL and BEER, JJ.
   MORIAL, Judge.

This is an application to prohibit the Twenty-Fifth Judicial District Court from proceeding further with the hearing of this cause on the ground that it lacks venue. See LSA-C.C.P. Articles 41, 42 and 73. We granted certiorari to review the decision of the district court and stayed all proceedings pending our further orders.

Relator, Richard J. Burke, together with the brothers, Thomas P. Eustis and Geoffrey E. Eustis, endorsers and continuing guarantors of a promissory note of Ben Development Company, Inc., were sued in solido for payment of the note in the Parish of Plaquemines, Louisiana,

Plaintiff, Mrs. Joyce Perez Gelpi, alleges in her petition that defendant Burke is a resident of and domiciled in the Parish of Orleans and that the Eustis brothers are residents of and domiciled in the Parish of Plaquemines.

Defendant Burke excepted to the venue, and prayed for dismissal of the suit for the reason that neither Eustis is domiciled in the Parish of Plaquemines. LSA-C.C.P. Article 73. The district court held that the Eustises were domiciliaries of the Parish of Plaquemines and dismissed Burke’s exception. We revérse.

It is with great reluctance that we differ from the judges of the first instance on questions of fact; but a question of domicile is not a mere question of fact. See LSA-R.C.C. Article 38. While we agree with our learned brother below that the facts show a residence for each Eustis in Plaquemines Parish, at the same time, we differ from him on the legal inferences he draws from those facts that the residences of the Eustises in Plaquemines Parish were their domiciles.

Documentary evidence in the record indicates that at various times each gave a mailing address or declared that he was a resident of and/or domiciled in the Parish of Plaquemines: a marriage contract between Geoffrey Edward Eustis and Dianne R. Preston executed on June 5, 1974 (resident) ; notarial declaration in which Thomas P. and Geoffrey E. Eustis intervened (resident); petition for emancipation of Geoffrey Edward Eustis (domiciled) ; sale by Ben Development Co., Inc. to Geoffrey Edward Eustis (resident and domiciled) ; sale by Walker Land Company, Inc., to Geoffrey E. Eustis dated February 16, 1973 (resident); motor vehicle registration of Geoffrey E. Eustis dated June 26, 1972; motor vehicle registration of Thomas P. Eustis dated December 12, 1973; vehicle registration renewals for various vehicles; 1975 Louisiana Operator’s License of each Eustis. However, we note that in the articles of incorporation of Ben Development Company, Inc., which issued its promissory note on which Thomas P. and Geoffrey E. Eustis are endorsers and guarantors, each declared his address to be in New Orleans.

Geoffrey E. and Thomas P. Eustis were both born in New Orleans, Louisiana where they lived with their parents at various addresses. Except for absences from New Orleans during the academic year while attending college, they have each maintained several residences in New Orleans.

Geoffrey was married in New Orleans on June 29, 1974 and presently lives there with his wife in an apartment building he acquired in 1974. After his marriage in Mississippi in 1968, Thomas moved to New Orleans. He lived in East Baton Rouge and Jefferson Parishes for a while. He then returned to New Orleans where he lived with his wife from whom he is now separated. He presently lives at 4418 Ca-rondelet Street in New Orleans.

Geoffrey and Thomas both own property in New Orleans and are members of the New Orleans Country Club. They do their banking business at various New Orleans banks. Each keeps the majority of his clothes and personal articles at his New Orleans residence. They each spend from four to six days and nights a month in a house to which they have unlimited access located on a ranch (which was owned by their deceased grandfather) in Plaque-mines Parish. Each is a registered voter in Plaquemines Parish and has voted there for a relative who was a candidate for office. Each receives mail in New Orleans and in Plaquemines. They both consider their permanent home to be the ranch in Plaquemines Parish, where their grandfather and father are buried and where each has a burial plot reserved for him.

Thomas P. Eustis and Geoffrey both stated under oath that they considered themselves domiciled in the Parish of Pla-quemines. Words may be evidence of a man’s intention to establish his domicile at a particular place of residence. However, they cannot supply the fact of his domicile there. In such circumstances, the actual fact of residence and a real intention of remaining there, as disclosed by the entire course of conduct, are the controlling factors in ascertaining a person’s domicile, which the law commands * * * “is in the parish where he has his principal establishment.” LSA-R.C.C. Art. 38; See Succession of Rhea, 227 La. 214, 78 So.2d 838 (1955).

The many documents in which the Eustis brothers represented themselves to be residents of the Parish of Plaquemines coupled with their casual residence there, regardless of their motive, are contrary to their acts and conduct to which they testified and, are insufficient to base the legal con-.elusion that they are, or were ever, domi-ciliaries' of the Parish of Plaquemines. These declarations of the Eustises lose their weight when considered with their conduct at the same epoch and prior thereto. This conduct speaks much louder than the mere words of their intent when it comes to a determination of their domicile.

The fact that they exercised their voting rights in the Parish of Plaquemines is insufficient to establish domicile there. The place where a person exercises his political rights, which are based upon a requirement of residency (LSA-R.S. 18:31), is not his domicile, if that person has a dwelling house elsewhere which he habitually oct...pies and therein maintains his domestic establishment and conducts the bulk of his business activities.

The first domicile of Thomas and Geoffrey was the place of their nativity— New Orleans, the domicile of their parents; it is by their testimonies their habitual place of residence since birth. The habits of their lives, as well as their domestic establishments, are in New Orleans and have never been in the Parish of Plaquemines. See LSA-R.C.C. Article 39; Succession of Franklin, 7 La.Ann. 395 (1852); Hill v. Spangenberg, 4 La.Ann. 553 (1849). The business transaction which gives rise to this litigation as well as their banking business is transacted almost exclusively at various New Orleans banks. It is inescapable from the record before us that the domicile of the Eustises is in the Parish of Orleans. They must overcome the presumption that it has not been changed by positive and satisfactory proof of the establishment of their domicile in the Parish of Plaquemines, the intention to remain there and the abandonment of their domicile in the Parish of Orleans. This they have failed to do. See LSA-R.C.C. Article 41; In re Adoption of Rials, 220 La. 484, 56 So.2d 844 (1952).

For the foregoing reasons, the judgment of the district court dismissing relator’s exception is reversed, the exception is maintained, and the case is remanded to the district court for transfer to Civil District Court for the Parish of Orleans in accordance with LSA-C.C.P. Article 121.

Reversed and remanded.

REDMANN, J., concurs.

REDMANN, Judge

(concurring).

The Eustises seem to be suable in Pla-quemines, either because they are estopped to deny domicile there, or because (as in Foster v. Breaux, 1972, 263 La. 1112, 270 So.2d 526) they have not timely excepted to the venue. Foster, at 263 La. 1122, 270 So.2d 530, noted but did not rule on the issue we have: Does maintainability of venue against one solidary obligor, for reasons other than C.C.P. 42, make venue proper as to the other solidary obligors ? The answer is that C.C.P. 73 only authorizes actions against all solidary obligors m any venue proper as to any one solidary obligor “under Article 42”.

The evidence is that Orleans is today the Eustises’ domicile within C.C. 38. There is no reasom to estop Burke from showing so. The Eustises are therefore not suable in Plaquemines under C.C.P. 42; Burke is therefore not suable with them in Pla-quemines under C.C.P. 73.

      . In this Act of Sale Geoffrey E. Eustis declared his mailing address to be 1632 Napoleon Avenue, New Orleans, Louisiana.


author: SAMUEL, Judge. REDMANN, Judge

text:
    William CARTER and Shelly Carter, wife of William Carter v. The CITY OF NEW ORLEANS et al.
    No. 7353.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 24, 1976.

      Alvin J. Bordelon, Jr., Metairie, for re-lators.
    Wayne G. Cresap, New Orleans, for respondents.
    Before SAMUEL, REDMANN and BEER, JJ.
   SAMUEL, Judge.

This suit is in tort against the City of New Orleans and others for injuries allegedly sustained by plaintiff, William Carter, while he was incarcerated in the Orleans Parish House of Detention during the month of June, 1975.

Plaintiffs timely prayed for trial by jury and furnished bond therefor. The City moved to strike plaintiffs’ prayer for trial by jury insofar as that prayer was applicable to that defendant. The City’s' motion was granted. On plaintiffs’ application for writs, we granted certiorari to review the ruling which denies them a jury tral of their claim against the City. That is the only issue now before us.

The applicable constitutional and statutory law is:

“(A) No Immunity in Contract and Tort. Neither the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property.
(B) Waiver in Other Suits. The legislature may authorize other suits against the state, a state agency, or a political subdivision. A measure authorizing suit shall waive immunity from suit and liability.
(C) Procedure; Judgments. The legislature shall provide a' procedure for suits against the state, a state agency, or a political subdivision. It shall provide for the effect of a judgment, but no public property or public funds shall be subject to seizure. No judgment against the state, a state agency, or a political subdivision shall be exigible, payable, or paid except from funds appropriated therefor by the legislature or by the political subdivision against which judgment is rendered.” Louisiana Constitution of 1974, Article 12, § 10.
“(A) Retention. Laws in force on the effective date of this constitution, which were constitutional when enacted and are not in conflict with this constitution, shall remain in effect until altered or repealed or until they expire by their own limitation..
(B) Expiration of Conflicting Law. Laws which are in conflict with this constitution shall cease upon its effective date.” Louisiana Constitution of 1974, Article 14, § 18.
“No suit against the state or other public body shall be tried by jury.” R.S. 13:5104 (Act 27 of 1960).
“No suit against the state or a state agency or political subdivision shall be tried by jury.” R.S. 13:5105 (Former R.S. 13:5104 as reenacted as R.S. 13:-5105 by Act 434 of 1975).
In pertinent part:
“A trial by jury shall not be available in:
(5) All cases where a jury trial is specifically denied by law.” C.C.P. Art. 1733.

The question presented is whether the prohibition of jury trial in contract and tort suits against the state, a state agency or a political subdivision (R.S. 13:5105) is within legislative authority to “provide a procedure for suits against” those defendants under Constitution Article 12, § 10 (B) in view of the fact that, as provided by Constitution Article 12, § 10(A), such defendants no longer have sovereign immunity in contract and tort. More narrowly stated, the question is whether trial by jury is a procedural matter within the meaning of the first sentence of Constitution Article 12, § 10(C).

We do not consider relator’s argument that because this suit was filed after the effective date of the Constitution of 1974, and therefore without the necessity of legislative consent, former R.S. .13:5101 made R.S. 13:5104 inapplicable because Section 5101 limited Section 5104 to suits “authorized by special or general law or resolution passed by the legislature.” If the rule against jury trial is procedural, then the 1975 R.S. 13:5105 is applicable.

Imprimis, we note that the Seventh Amendment of the United States Constitution guarantees the right to trial by jury. However, as the right to trial by jury is not an essential element of due process, the Seventh Amendment does not apply to proceedings in state courts and it is significant that the United States itself often prohibits trial by jury against it. Except only in matters involving expropriation, the Louisiana Constitution and 1974 does not mention trial by jury in civil cases. Other than that exception, trial by jury in civil cases appears to be a legislative matter.

Article 12, § 10(A) of the 1974 Constitution abolishes sovereign immunity only in contract and for injury to person or property. Under Article 12, § 10(B), sovereign immunity from other suits has been maintained, subject to the fact that the legislature may waive that immunity and authorize such other suits. Article 12, § 10(C) requires the legislature to provide a procedure for suits against the state, a state agency or a political subdivision. Section 10' does not' in any way circumscribe or limit the authority or judgment of the legislature in providing what such procedure shall be. It is clear that, if suits against the state or a political subdivision were to be subject to the same rules as suits between or among private individuals only, there would have been no need to require the legislature to provide a procedure for suits against any of those defendants and there would be no reason for the existence of the first sentence of Subsection C of Section 10.

That there is a, clear difference between suits involving private litigants and suits against the state or a political subdivision is further illustrated by the last two sentences of Subsection C of Section 10, which prohibit seizure of public property or funds and which provide that no judgment against. the state or political subdivision shall be exigible, payable or paid except from funds appropriated therefor by the legislature or the political subdivision cast. The difference between suits involving private litigants and suits against the state is age-old.

Insofar as it relates to trial 'by jury against the state or political subdivision, under Louisiana’s civil law-oriented system of appellate review of both the law and the facts, a trial by jury is less significant than it is in those states without such appellate review. There is nothing against public policy or against proper administration of justice in prohibiting a jury trial in suits against the state or political subdivision. In Palko v. Connecticut, a case involving criminal procedure outside the State of Louisiana, the court stated the “right to trial by jury . . . are not of the very essence of a scheme of ordered liberty . . . few would be so narrow or provincial as to maintain that a fair and enlightened system of justice would be impossible without it . . . ”

Insofar as concerns the question of whether or not trial by judge alone or trial by jury is “procedure” as that word is used in Subsection C of Article 12, § 10, the word “procedure” is defined in Black’s Law Dictionary as follows:

“The mode of proceeding by which a legal right is enforced, as distinguished from the law which gives or defines the right, and which, by means of the proceeding, the court is to administer; the machinery, as distinguished from its product.”

We believe it clear that trial by jury or by judge is a means or mode of proceeding by which a legal right is enforced; it is the machinery, as distinguished from its product, the judgment. Our Louisiana jurisprudence is to the effect that the provisions of R.S. 13:5104, prohibiting jury trials in suits against the state or other public bodies, is a procedural matter.

Accordingly, our conclusion is that R.S. 13:5105, which prohibits the trial by jury of suits against the state or other public body, is valid and enforceable.

For the foregoing reasons, the writs previously issued in this proceeding are recalled, the judgment of the trial court denying a jury trial in plaintiffs’ suit against the City of New Orleans is affirm-' ed, and the matter is remanded to the trial court for further proceeding in accordance with law.

Writs recalled and remanded.

REDMANN, J., dissenting with written reasons.

REDMANN, Judge

(dissenting).

Sovereign immunity from civil jury trial, a relic from but no longer supportable by the discredited and abolished doctrine of complete sovereign immunity, is inconsistent with the equal protection guarantee of La.Const. art. 1 §§ 3 and 22 (and if not, then with that of Ü.S.Const. Amend. 14). La.R.S. 13:5105’s prohibition of civil jury trial against the state or its- political subdivisions is therefore unconstitutional.

The authorization by La.Const. art. 12 § 10(C) of enactment of “a procedure” for suits against the state means a procedure consistent with the constitution: consistent with the due process guarantees of art. 1 §§ 2 and 22, consistent with the equal protection guarantees of art. 1 §§ 3 and 22, and consistent with every other word of every section of every article of the constitution. Authorization of “a procedure” does not authorize refusing a plaintiff cross-examination of the State’s witnesses —though cross-examination is a matter of procedure — because the due process clauses guarantee the right of cross-examination. And authorization of “a procedure” does not authorize prohibiting jury trial (or judge trial!) to some plaintiffs on the basis of the personality of their defendants — though jury trial be a matter of procedure — because the equal protection and justice administered without partiality clauses guarantee that laws cannot be applied differently to different classifications of persons unless there is a rational basis to the classification.

Neither the City nor the Attorney General has suggested any rational basis for classifying persons allegedly injured by the state (or its servants) into a category not entitled to the determination of liability by a jury and the assessment of damages with “much discretion” by the “jury", C.C. 1934 (3). (The Attorney General suggests that the state’s “deep pockets” might subject it to unfair treatment by juries. So might the deep pockets of large corporations and wealthy individuals. R.S. 13:5105, however, does not classify all wealthy defendants as exempt from jury trial, but only the state and its subdivisions.)

Except for R.S. 13:5105, Louisiana law limits denial of jury trial to classifications of causes of action, such as demands for less than $1,000, or probate matters, C.C.P. 1733. (I interject here, without equal-protection analysis, that R.S. 13:5035 grants civil jury trial to citizens against the state when the state is plaintiff!)

R.S. 13:5105’s prohibiting civil jury trial against the state as defendant makes no more sense than would prohibiting civil jury trial against redheads as defendants. It is whimsy. It deprives plaintiffs injured by the state of equal protection of the jury-trial law, It is therefore unconstitutional, because violative of La.Const. art.' 1 §§ 3 and 22.

      . See Melancon v. McKeithen, 345 F.Supp. 1025 (Ed.La.1972), affirmed, 409 U.S. 943, 93 S.Ct. 289, 34 L.Ed.2d 214 (1973) and State v. Beer, 252 La. 756, 214 So.2d 133 (1968).

      . See, for example, 46 U.S.C. § 742 and § 782.

      . Article 1, § 4, Constitution of 1974, which provides, in part, “ . . .a party has the right to trial by jury to determine compensation.”

      . 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288.

      . Black’s Law Dictionary, 4th Ed. Revised.

        . Abercrombie v. Gilfoil, La.App., 205 So.2d 461; Pelloat v. Greater New Orleans Expressway Com’n., La.App., 175 So.2d 656, writ refused, 248 La. 122, 176 So.2d 452.


author: SAMUEL, Judge.

text:
    Griven A. MULLENS v. DEPARTMENT OF PUBLIC SAFETY, DRIVERS LICENSE DIVISION.
    No. 7184.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1976.
    Rehearing Denied March 16, 1976.
    Writ Refused May 26, 1976.

      Ronald P. Herman, Metairie, and Edward A. Armstrong, Jr., New Orleans, for plaintiff-appellant.
    Foye L. Lowe, Jr., Baton Rouge, for defendant-appellee.
    Before SAMUEL, REDMANN and SCHOTT, JJ.
   SAMUEL, Judge.

This is an appeal from a judgment of the Twenty-fourth Judicial District Court affirming the action of the Louisiana Department of Public Safety in suspending appellant’s driving privileges under R.S. 32:667 because of his failure to submit to a test to determine the alcoholic content of his blood.

The facts are basically not disputed. Appellant, Griven A. Mullens, was arrested by a Jefferson Parish deputy sheriff on March 17, 1974 and charged with violation of R.S. 14:98, driving while intoxicated. While incarcerated, a police officer requested Mullens to submit to a photoelectric intoximeter (P.E.I.) test to determine the percentage of alcohol in his blood pursuant to the various provisions of the implied consent law, R.S. 32:661, et seq. Mullens refused to subject himself to the test, and the police forwarded a statement certifying this fact to the Department of Public Safety. On the basis of this certification, the Department of Public Safety ordered the suspension of Mullens’ driving privileges for a period of six months.

Timely request was made by Mullens for an administrative hearing pursuant to law. During this administrative hearing, the Department did not call any witnesses, but relied on documentary evidence, while Mullens testified and submitted an affidavit. No other evidence was introduced. Following the hearing, the original suspension of driving privileges was affirmed.

Appellant perfected a timely appeal to the Twenty-fourth Judicial District Court. At that hearing on December 13, 1974, the Department for the first time introduced the testimony of one of the police officers whose name appeared as a witness on the statement certifying appellant’s refusal to submit to the P.E.I. test. The district court affirmed the suspension of appellant’s license, and this appeal ensued.

The two issues raised for this court’s consideration by this appeal are: (1) whether the proceeding in the district court to review the administrative hearing shall be conducted as an appeal or as a trial de novo; and (2) whether appellant's license can be suspended in view of the ruling of the Louisiana Supreme .Court in State v. Jones. Our conclusion on the second issue, that the license cannot be suspended in view of the ruling in Jones, makes a consideration of the first issue unnecessary.

In State v. Jones the court ‘held that before the State may rely on the statutory presumption of intoxication created by a positive P.E.I. test, it must offer into evidence the permit or certificate of the machine operator and must show the test was performed in conformance with standards approved by the Louisiana Department of Health (now the Louisiana Health and Human Resources Administration). In that case, the court stated the State may not avail itself of the presumption of intoxication arising from positive test results until the Health and Human Resources Administration establishes and promulgates carefully detailed methods, procedures, and techniques covering repair, maintenance, inspection, cleaning, chemical accuracy, and certification of P.E.I. equipment and until the State adduces evidence that such a test was performed in conformity with such methods, procedures, and techniques.

In the course of its decision, the Supreme Court rejected the State’s argument that the provisions of R.S. 32:663 were met by (1) a letter dated September 19, 1969 from George H. Hauser, M.D., Director of the Bureau of Laboratories, to the assistant director of the State Police Crime Laboratory, stating techniques of breath analysis taught in a 40 hour course given by the Division of State Police and measured by the photoelectric intoximeter “is hereby approved by the Louisiana State Department of Health” and (2) a pronouncement by the Health and Human Resources Administration dated December 19, 1974, stating “the method approved for breath testing for alcohol is the Photoelectric Intoxi-meter Test performed with the instrument manufactured by Intoximeter, Inc., St. Louis, Missouri, or any equivalent machine which is approved by the Bureau of Laboratories, State Division of Health.”

In effect, the Supreme Court stated tests given under the implied consent law, R.S. 32:661, et seq. were invalid unless and until the Health and Human Resources Administration establishes and promulgates detailed methods, procedures and techniques pursuant to R.S. 32:663. We note that on December 20, 1975, subsequent to the filing of briefs in this case, the Health and Human Resources Administration promulgated new rules in an attempt to meet the requirements of R.S. 32:663.

Revised Statute 32:663 provides:

“Chemical analysis of the person’s blood, urine, breath or other bodily substance, to be considered valid under the provisions of this Part, shall have been performed according to methods approved by the state department of health and by an individual possessing a valid permit issued by said department for this purpose. The state department of health is authorized to approve satisfactory techniques or methods, to ascertain the qualifications and competence of individuals to conduct such analyses, and to issue permits which shall be subject to termination or revocation at the discretion of the department. Added by Acts 1968, No. 273, § 14.” LSA-R.S. 32:663 (emphasis ours).

Appellant argues the Jones case renders invalid all P.E.I. tests for failure of compliance with R.S. 32:663, with the result that refusal to submit to an invalid test is not grounds for suspension of a driver’s license. On the other hand, the State argues the Jones case is a criminal proceeding and the rationale of that decision applies only to criminal cases.

Statutory enactments involved in this litigation are contained in Louisiana Revised Statutes, Title 32, Chapter 3, Part XIV, entitled “Tests for Suspected Drunken Drivers”. Part XIV contains provisions applicable only to criminal proceedings (such as R.S. 32:662 and 32:666) and others applicable only to civil proceedings (such as R.S. 32:667 and 32:668). The procedure for performing such tests is provided by R.S. 32:663, also in Part XIV, quoted above. The portion of R.S. 32:663 emphasized by the court shows that the testing procedures outlined in that statutory section apply to the entire Part XIV, and make no distinction whatever between criminal and civil proceedings. Therefore, since the procedure for taking the test, the effect of the test in criminal cases, and the effect of the test in civil cases are all contained in Part XIV, and since R.S. 32:663 provides for the validity of tests “under the provisions of this Part,” making no distinction between civil or criminal proceedings, the only conclusion which can be drawn is that failure of- Louisiana Health and Human Resources Administration to promulgate the necessary rules, regulations, and procedures pursuant to R.S. 32:663 applies both to criminal and civil proceedings.

Our reading of State v. Jones, convinces us that all tests given or proposed to be given prior to the December 20, 1975 promulgation of new rules by the Health and Human Resources Administration were invalid. Consequently, the test proposed to be given to the plaintiff in this case on March 17, 1974 was invalid and plaintiff’s refusal to submit thereto is not ground for suspension of his driving privileges.

For the reasons assigned, the judgment appealed from is reversed, the trial court is ordered to issue the injunction prayed for by plaintiff, and the matter is remanded to the trial court solely for that purpose.

Reversed and remanded.

      . 316 So.2d 100 (S.Ct.1975).

      . Supra, footnote 1.

      . See 1 Louisiana Register, 562.

        .Supra, footnote 1.