author: LOTTINGER, Judge.

text:
    Edward PARTIN, Jr. v. Wendy Rothdram PARTIN.
    No. 10891.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.
    Rehearing Denied Nov. 15, 1976.
    Writ Refused Jan. 19, 1977.

      Robert M. Day, Baton Rouge, of counsel, for Edward Partin, Jr.
    Fred H. Belcher, Jr., Baton Rouge, of counsel, for Wendy Rothdram Partin.
    Before LANDRY, BLANCHE and LOT-TINGER, JJ.
   LOTTINGER, Judge.

This is a suit by Edward Partin, Jr., plaintiff, seeking a divorce from his wife, Wendy Rothdram Partin, defendant, after having lived separate and apart for more than one year following a judgment of separation from bed and board. Plaintiff also seeks custody of the minor child, Jason Ian Partin, and the defendant reconvened asking that she be granted the permanent care, custody and control of the minor child.

The Trial Court had previously, by ex parte order, awarded the temporary care, custody and control of the minor to Mr. and Mrs. James Ed White. Following trial on the merits, plaintiff was awarded a divorce as well as the permanent care, custody and control of the minor child, with the temporary physical custody of the minor child to remain with Mr. and Mrs. James Ed White. The defendant has appealed this judgment as it regards the custody of the child.

This couple was married when plaintiff was 17 and the defendant was 16 years of age. Nine months following the marriage, they gave birth to young Jason. While we are not concerned with the facts surrounding the separation and divorce, it was apparently one of incompatibility as defendant testified that at the age of 17 she found herself married to a man who did not love her and so she left. Her testimony was as follows:

“[A]s I say I was emotionally upset. I was receiving little support from Edward. I was scared, very confused. I didn’t know exactly which way to turn. I felt I had no one to listen and help with the situation at hand.”

Several weeks later she returned and lived with her husband again. She found that the situation hadn’t changed, and felt she had to get away again. She heard of a man who wanted someone to share expenses on a trip to California, so she quit her job and with her last wages left with him. She testified that she had no sexual relations with this man, and plaintiff does not accuse her of such. Following this trip she returned to Baton Rouge still emotionally upset. Her husband was suing her for separation and told her he was going to take custody of Jason. She went to live with her aunt and uncle, got a full time job with Kelly Girls paying $512.00 per month.

In February, 1975, the defendant’s mother was injured in an accident and she moved in with her to care for her. In September, 1975, following the recuperation of the mother she returned to live with her aunt and uncle.

During these above periods of time, the minor child lived with Mr. and Mrs. White. The Whites came to regard Jason as their own and, although the separation judgment awarded custody to the plaintiff with reasonable visitation privileges to the defendant, the Whites decided the defendant-mother could only see the child two days a month and that she could never keep the child over night. The reason the defendant did not contest custody at the separation trial was because at the time she felt unable emotionally and financially to care for her son.

The defendant contends that the Trial Court erred in (1) awarding custody of the minor to the Whites by ex parte motion: (2) awarding custody to the father when the mother has superior rights; and (3) in requiring defendant to meet the double burden of proof as to custody.

In discussing the specifications of error, we will first determine whether the defendant must bear the “double burden” of proof in attempting to regain custody of her minor child as required by Decker v. Landry, 227 La. 603, 80 So.2d 91 (1955), rehearing denied (1955).

We note that the petition for separation was grounded on habitual intemperance, as well as abandonment of the husband and the minor child. There are no other grounds listed for the separation nor for custody. The petition for the separation and custody of the minor child was not contested by the defendant, and a default judgment was granted. Defendant testified in the instant proceedings that the reason she did not contest custody in the separation proceeding was that she was not financially or emotionally capable of caring for the minor, and that knowing the Whites were going to be caring for him, she knew he would be in good hands.

In interpreting what the Louisiana Supreme Court meant by the language “considered decree” in establishing the “double burden” rule in Decker v. Landry, supra, this Court said in Gulino v. Gulino, 303 So.2d 299, 303 (La.App. 1st Cir. 1974), “that a considered determination of custody means a trial of the issue and decision thereon applying pertinent principles of law to the facts adduced.” We do not find that any such determination was ever made in this case, and thus hold that the “double burden” rule does not apply.

Since we have concluded that the “double burden” rule is not applicable under the facts of this case, we must determine whether the Trial Judge has abused the great discretion that is granted to him in child custody matters.

The welfare of the child is the main issue that the Court is concerned with. This issue is more important than any wishes or wants the parents may have. Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971), rehearing denied (1971). As a general rule, and in particular where children of young age are involved, preference is given to the mother in custody cases. This preference is very simply explained, the mother is normally better able to care for the child and look after the education, rearing, and training necessary. Estes v. Estes, 261 La. 20, 258 So.2d 857 (1972), rehearing denied (1972).

No argument is made that the mother is not now morally or emotionally fit to care for the child, or that the house in which she lives is not a proper place to rear a child. In fact, the Trial Judge admitted that it was a fine home.

The Trial Judge has not favored us with written reasons for judgment, however, we must conclude from various statements by the Trial Judge that appear in the record that he could find no fault with the defendant, nor was there anything wrong with the house in which she lived. It thus becomes apparent to this Court that the Trial Judge applied the “double burden” rule to the defendant. We have already ruled that the “double burden” rule does not apply in this situation, and thus, under the established jurisprudential rules, we can see no reason why the defendant-mother should not be granted the permanent care, custody and control of the minor child, with reasonable visitation privileges granted to the father.

In consideration of our above opinion, there is no need to discuss the specification of error as to the ex parte granting of custody to the Whites.

Therefore, for the above and foregoing reasons, the judgment of the Trial Court is reversed, and IT IS ORDERED, ADJUDGED AND DECREED that the defendant-appellant, Wendy Rothdram Par-tin, be and she is hereby granted the permanent care, custody and control of the minor, Jason Ian Partin, and IT IS FURTHER ORDERED, ADJUDGED AND DECREED that this matter be and it is hereby remanded to the Trial Court for the purpose of fixing specific visitation privileges on behalf of plaintiff-appellee Edward Par-tin, Jr. All costs of the appeal are to be paid by plaintiff-appellee.

REVERSED, RENDERED AND REMANDED.

      . Though the petition for separation had as one of its allegations “habitual intemperance”, the plaintiff in the instant proceeding testified that he had never accused his wife of drinking, nor had he ever seen her drink.


source: Caselaw Access Project

author: BLANCHE, Judge.

license: Public Domain

text:
    Virgie SWAIN v. James L. SWAIN.
    No. 10893.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.
    Rehearing Denied Nov. 15, 1976.

      Garland R. Rolling, Metairie, for plaintiff and appellant.
    John F. Pugh, Pugh, Lanier & Pugh, Thi-bodaux, for defendant and appellee.
    Before LANDRY, BLANCHE and LOT-TINGER, JJ.
   BLANCHE, Judge.

The petition of appellant, Virgie Swain, alleges the following facts pertinent to a resolution of the issues herein:

(1) That she is a resident of the Parish of Lafourche.

(2) That the defendant, her former husband, is a resident of the State of Mississippi.

(3) That they were divorced by a judgment of the Circuit Court in and for Santa Rosa County, State of Florida.

(4) That the judgment contained provisions which divided the community of ac-quets and gains existing between them and fixed “rehabilitative alimony” in the sum of $900.

(5) That the property divided by the judgment was located in the Parish of La-fourche, State of Louisiana.

(6) That the division of the property was lesionary and thus in violation of the laws of the State of Louisiana governing the division of community property.

The prayer of the petition seeks a judgment declaring the Florida judgment a nullity insofar as it affects property situated in the State of Louisiana, a judgment declaring the division of assets of the marital community of the parties null and void due to lesion, and a judgment repartitioning the community assets and for alimony.

The judgment of the Florida court is not a part of the record, nor is there any allegation or evidence to show that it has been accorded full faith and credit in the State of Louisiana.

While the Florida judgment is not before the court, it is obvious from the petition that the judgment imposed a personal obligation upon the plaintiff to transfer certain immovable property located in Louisiana to the defendant and, in return, the defendant was ordered to transfer to the plaintiff his interest in the remaining immovable property situated in this state.

Based upon the record before us, neither party appealed the Florida judgment, and each fulfilled his respective obligation thereunder.

To plaintiff’s petition, the defendant filed exceptions of sufficiency of citation and lack of jurisdiction over both the person of the defendant and the subject matter. The trial court, without written reasons, sustained the exceptions, dismissing plaintiff’s suit, and plaintiff has appealed.

The jurisdiction of a Louisiana court is necessarily limited by its power and authority to legally grant the relief sought by the parties. LSA-C.C.P. Art. 1: Ponthieux v. Lindsay, 216 So.2d 407 (La.App. 3rd Cir. 1968), affirmed, 254 La. 647, 226 So.2d 482 (1969). See, also, Patrick v. Patrick, 227 So.2d 162 (La.App. 2nd Cir. 1969), writ refused, 255 La. 238, 230 So.2d 91 (1970). Jurisdiction is not a discretionary matter. If in law and in fact jurisdiction is lacking, the case must be dismissed on that ground rather than to be considered on its merits. See Thomas v. Travelers Insurance Company, 258 F.Supp. 873 (E.D.La.1966).

In this case the plaintiff sought relief which the trial court was powerless to grant and her petition was propérly dismissed.

The object of the plaintiff’s suit was to annul portions of an obviously valid and final Florida judgment. However, it is axiomatic that a Louisiana court is powerless to annul the judgment of a sister state.

A Louisiana court is also powerless to deny a Florida judgment the full faith and credit which is accorded to it by Article 4, Section 1, of the United States Constitution unless the Florida court lacked jurisdiction over the parties or the subject matter involved in the controversy. Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278 (1941); Crichton v. Succession of Crichton, 232 So.2d 109 (La.App. 2nd Cir. 1970), writs refused, 256 La. 274, 236 So.2d 39 (1970), U.S. certiorari denied, 400 U.S. 919, 91 S.Ct. 172, 27 L.Ed.2d 159, U.S. rehearing denied, 400 U.S. 1002, 91 S.Ct. 449, 27 L.Ed.2d 453 (1971).

On the facts of the record before us, the Florida court obviously had jurisdiction over both the parties and the subject matter, that is, the marriage that existed between the plaintiff and the defendant and the legal effects that flowed therefrom. In this connection we further note that plaintiff does not attempt to invalidate the divorce which was adjudicated by the Florida judgment. The Florida court was, therefore, competent to impose personal obligations upon the parties with respect to the dissolution of the marriage and a partition of the marital property. The parties have not contended otherwise, and, in fact, voluntarily performed their respective obligations under the judgment.

In view of the foregoing, the application of the full faith and credit clause to the instant case renders the courts of Louisiana powerless to deny the validity and effect of the Florida judgment.

Plaintiff contends that Louisiana has subject matter jurisdiction over the instant cause because the property located in Louisiana must be divided in accordance with Louisiana law, citing LSA-C.C. Art. 2400 which provides:

“All property acquired in this State by nonresident married persons, whether the title thereto be in the name of either the husband or wife, or in their joint names, shall be subject to the same provisions of law which regulate the community of ac-quets and gains between citizens of this State.”

In addition, plaintiff cites LSA-C.C. Art. 2406, which, in pertinent part, provides:

“The effects which compose the partnership or community of gains, are divided into two equal portions between the husband and the wife * * * at the dissolution of the marriage * *

Unquestionably, Louisiana has the right to establish a conflicts of law rule which provides that property acquired in Louisiana by non-resident married persons shall be subject to Louisiana law and, accordingly, divided equally between the partners on the dissolution of the marriage, Crichton, v. Succession of Crichton, supra. Presumably, the Florida court applied Louisiana law when it partitioned the property; and if it did not, it seems to us that the plaintiff should have complained to the Florida court before its judgment became final. Now plaintiff, not being satisfied with that judgment wants to try her luck in our courts with the hope that on her second time around another partition will be more favorable.

The courts of Louisiana are powerless to inquire into the merits of the cause of action or the validity of the legal principles on which the Florida court based its decision. U.S. Constitution, Article 4, Section 1; Mil-iiken, supra.

Plaintiff also petitioned for alimony pursuant to the Florida judgment. Without going into the merits of her case, we note that on the face of the record the Florida judgment has not been made execu-tory in Louisiana, LSA-C.C.P. Article 2541. Accordingly, the trial court was powerless to render a judgment with respect thereto.

For the above and foregoing reasons, the judgment of the trial court is affirmed, at appellant’s costs.

AFFIRMED.


text:
    Pierre LeBLANC, d/b/a Pierre LeBlanc Farms v. EMPLOYER’S REINSURANCE COMPANY.
    No. 11018.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.
    Rehearing Denied Nov. 15, 1976.
    Writ Refused Jan. 21, 1977.

      J. Minos Simon, Lafayette, for appellant.
    James H. Morgan, III, Baton Rouge, for appellee.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

MOTION TO DISMISS

This matter is before us on motion by defendant-appellee to dismiss the appeal of plaintiff for not being perfected timely.

The trial in this ease was held on September 11, 1975, and after taking same under advisement, judgment was rendered and signed on November 18, 1975, and on that day the clerk of court mailed notice of the judgment to all counsel of record.

Defendant timely made application for a new trial, and judgment of the Trial Court reversing itself was rendered on December 22, 1975, and read and signed on December 30, 1975, with the clerk of court on that date mailing notice of this judgment to all counsel of record.

The plaintiff then applied for a new trial which was denied on January 20, 1976, as is shown by the minute entry which reads as follows, to wit:

“This matter came on for hearing on motion for a new trial filed on behalf of plaintiff having waived his appearance. The matter was submitted to the court. Where upon, the court denied the motion.”

On June 2, 1976, a written judgment denying the motion for a new trial was signed by the Trial Court, and a notice of this judgment was mailed to all counsel of record on that date.

Motion for a devolutive appeal was filed on June 10, 1976, and cash in lieu of bond was filed on June 17, 1976.

In making the motion to dismiss the appeal, defendant-appellee argues that since plaintiff-appellant never filed a written request for notice of the refusal of his motion for a new trial, as provided by LSA-C.C.P. Art. 1914, the delay for the devolutive appeal commenced to run upon the court’s refusal to grant a new trial, and thus a motion for an appeal filed on June 10, 1976 was untimely;,

Plaintiff-appellant in opposing the motion to dismiss the appeal argues that any judgment which determines in whole or in part the merits of a case is a final judgment, thus when the Trial Judge granted a new trial on January 20, 1976, by reversing his original position, this judgment was a final judgment because it determined the merits of the controversy, and thus cannot be termed an “interlocutory judgment”. Therefore, it must follow that any granting or refusal of a motion for a new trial is in and of itself a “final judgment” and not an “interlocutory judgment”, thus, the Trial Court’s refusal of plaintiff-appellant’s motion for a new trial is a “final judgment”. An appeal can only be taken from a final judgment that has been signed, and when it was signed on June 2, 1976 plaintiff-appellant timely perfected his devolutive appeal.

The courts of this state have consistently held that the refusal to grant a new trial is an interlocutory judgment, and that written request is required for notice of the refusal to grant a new trial where the motion was taken under advisement. Rottman v. Bituminous Casualty Corporation, 306 So.2d 471 (La.App. 1st Cir. 1974), rehearing denied (1975), writ refused, La., 310 So.2d 642 (1975).

No written request for notice of refusal to grant a new trial was filed by plaintiff-appellant, and further, the minutes of court denote that the refusal to grant a new trial was decided at the same time it was called for hearing, and not taken under advisement. Though plaintiff-appellant was not present at this hearing, the minutes indicate the waiver of his appearance. Therefore, the delays for perfecting an appeal in the instant case began to run on January 21, 1976, the day after the court refused to grant the plaintiff-appellant’s motion for a new trial. The time allowed for the taking of a devolutive appeal in this situation is 90 days from the court’s refusal to grant a timely application for a new trial. LSA-C.C.P. Art. 2087. Thus, by our calculation the time within which to perfect a devolutive appeal expired on April 19,1976. In the instant case the motion for the appeal was granted on June 10,1976, and thus was not timely, and the appeal must be dismissed.

Therefore, for the above and foregoing reasons the appeal is'dismissed at plaintiff - appellant’s cost.

APPEAL DISMISSED.


text:
    Thelma LEONARD et al. v. ALBANY MACHINE AND SUPPLY COMPANY et al. James FISHER et al. v. ALBANY MACHINE AND SUPPLY COMPANY et al.
    Nos. 10849, 10850.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.
    Rehearing Denied Nov. 15, 1976.
    Writ Refused Jan. 19, 1977.

      Ronald F. Plaisance and Nicholas A. Dan-na, Jr., New Orleans, for plaintiffs-appellants.
    Walter M. Babst, Metairie, for defendants-appellants Albany Machine & Supply Co. and Hartford Insurance Group.
    Edwin C. Schilling, Jr., Amite, for defendant-appellee Wilco Machine Works, Inc.
    Charles W. Franklin, Baton Rouge, for defendant-appellee Nichols Construction Corp.
    Before SARTAIN, BLANCHE and LOT-TINGER, JJ.
   BLANCHE, Judge.

The plaintiffs, Thelma Leonard, et al., and James Fisher, et al., and also the defendant, Albany Machine and Supply Company, appeal the judgment of the trial court in this products liability case. The plaintiffs appeal the dismissal of their suit against defendants, Nichols Construction Corporation and Wilco Machine Works, Inc., and seek an increase in the quantum awarded by the trial court. Albany appeals the trial court’s finding of liability against them. We reverse the judgment against Albany and affirm the dismissal of Nichols and Wilco. Separate judgments will be rendered.

On September 26, 1966, James Fisher instituted the suit which is the subject matter of Appeal No. 10,850 (trial court Suit No. 4431) against Albany, Terrebonne Lumber and Supply Company, Inc., and several of its supervisory employees; Wilco, Nichols and various other defendants. Therein he sought to recover damages for personal injuries sustained in an accident on September 29, 1965, in the course of his employment by Terrebonne, while working near a machine known as an Albany Trimmer 20-foot Model No. 40WA saw, Serial No. 214. The trimmer was manufactured by Albany, sold by Wilco, and installed by Nichols. Fisher was struck by a piece of lumber ejected from the device.

Subsequent to the institution of suit, Fisher died and his wife and children were substituted as parties to the action.

On June 14,1967, Fisher’s widow, Thelma Leonard, individually, and as natural tutrix of her minor children, Beverly Ann Fisher, Erma Dean Fisher, James Worthy Fisher, Jr., and Keith Fisher, instituted the suit which is the subject matter of' Appeal No. 10,849 (trial court Suit No. 4608) to recover for Fisher’s alleged wrongful death. Recovery was sought against the same defendants that were named in the first suit.

The survival and wrongful death actions were consolidated for trial, and various procedural aspects of the litigation have been reported at La.App., 246 So.2d 218; La. App., 246 So.2d 230; and 261 La. 747, 260 So.2d 691.

After many procedural delays, trial was had on the merits in December, 1972, and resulted in judgment on November 8, 1973, in favor of plaintiff, Thelma Leonard Fisher, as duly qualified natural tutrix of her minor children in the sum of $25,000 for each child, or a total of $100,000 for the four minor children. There was further judgment in favor of plaintiff, Thelma Leonard Fisher, individually, in the sum of $37,765 for loss of earnings and other special damages and an additional $35,000 for the general damages sustained by both the plaintiff, Thelma Leonard Fisher, and the decedent, totaling $72,765. The total award of $172,765 was to bear legal interest at the rate of 5 percent from the date of judicial demand until paid.

Cast in judgment, jointly, severally, and in solido, were Albany and their insurer, Hartford Insurance Group, and T. B. Law-rason, Jr., the manager of Terrebonne’s sawmill at the time of the accident, and his insurer, New Amsterdam Casualty Company. The liability of Hartford was limited by its policy to the sum of $100,000.

The judgment debtors were cast for all costs, plus expert witness fees in the sum of $400. New Amsterdam was given credit for $12,463.75 for workmen’s compensation benefits previously paid.

Wilco and Nichols were dismissed from the suit, as were the remainder of the defendants.

Subsequent to the rendition of judgment, the plaintiffs settled the portion of the judgment against Lawrason and New Amsterdam, and the only issues presented on appeal by plaintiffs are the dismissal of Nichols and Wilco and the quantum awarded by the trial court. Our reversal of the judgment against Albany disposes of these issues.

In 1966, Terrebonne decided to increase the capacity of its lumber mill at Pine Grove, Louisiana. In conjunction therewith, an engineer, Mark Howard, was hired to design an addition to the mill, utilizing as much of the existing facility as practicable.

Because of the projected increase in capacity, a new trimmer was required and ultimately purchased from Albany through its commissioned sales representative, Wil-co.

The trimmer was approximately twenty-two feet long, with a stationary or “zero-saw” at one end, and additional saws at two-foot intervals up to twenty feet. Its function, as one of the last components in the lumber processing line, was to trim the already-processed green lumber into commercial lengths of two, four, six, eight, et cetera, feet.

This particular trimmer was automatic, and, for example, if an eleven-foot board came down the conveyor line, small pins would be activated so that the zero blade and the ten-foot blade would automatically trim it to ten feet. Additionally, the operator of the trimmer could cause the middle blades to descend and remove unuseable sections from the center of the board.

The trimmed lumber would pass through the saw on a chain conveyor belt, and after being trimmed, it was deposited onto another conveyor which carried it to the drying areas. The small pieces cut from both ends of the board would be separated from the good lumber and disposed of.

The conveyor that brought the lumber to the trimmer and the one that carried it away were both part of the pre-existing physical plant. The Albany trimmer was simply inserted into the line-up in place of the old trimmer, with its long axis in a north-south direction.

The decedent’s job was to stand at the south end of the trimmer and prevent the trimmed lumber from jamming up on the conveyor. There was also some evidence to the effect that he was to grade the trimmed pieces and set aside those that required resawing.

Nevertheless, his duties required him to occasionally go onto the ten-foot wide conveyor table on the finished or downstream side of the trimmer to straighten any lumber he could not reach from his position with a six-foot metal hook. Because of the mill process, he could not deactivate the trimmer, since lumber would continue to flow downstream and cause a jam-up on the front side of the saw. Therefore, when he went onto the table on the downstream side, the blades usually continued turning and sawing fresh lumber.

The evidence reveals that on the day the trimmer was put into operation, T. B. Law-rason, Jr., the mill manager, was notified that the trimmer was forceably throwing the cut-off pieces downstream or in the direction of the table where the decedent was required to work. To remedy the problem, he ordered the construction of a three-foot high, wooden baffle which was hung in a vertical position along the entire length of the trimmer at a point between the blades and the table where the decedent worked. The purpose of the baffle was to shield the workers in the immediate downstream area from the flying cut-offs.

After the installation of the shield, Law-rason thought the problem was cured and ordered resumption of operations. However, on about the third day of operations, the decedent was struck on the right forehead by a piece of cut-off lumber while returning from the table to his position at the south end of the saw. The evidence is inconclusive as to which blade threw the cut-off. Fisher died approximately sixteen months later as a result of his injuries.

The evidence establishes that the original three-foot high shield was- inadequate, because when it was increased to four feet, immediately after the accident, the risk of injury to the worker on the table was virtually eliminated.

The plaintiffs recovered against Lawra-son based upon the breach of his supervisory duties owed to the decedent.

At the trial the plaintiffs failed to establish that the decedent was injured as the result of a malfunction of the trimmer. Nevertheless, the trial judge granted them recovery against Albany based upon a defect in the design of the trimmer, that is, the failure to shield the blades, thereby causing an unreasonably dangerous risk that a workman such as decedent would be injured by flying cut-offs.

We conclude that it was error to hold that the trimmer was defectively designed.

The only evidence offered by the plaintiffs to prove a defect in design was the testimony of their expert witness, Fred Ackis, an associate professor and chairman of the Department of Industrial Safety at Delgado Junior College, who, admittedly, had never worked in a sawmill or designed one.

He concluded that the trimmer was a dangerous machine and was of the opinion that it should not be operated at all. However, his only recommendation for a safer design was the installation of guards similar to those used on hand-held skill saws, over each blade.

Albany countered with the expert testimony of Rene Fritz, Sr., the president of the defendant company, who had spent his entire working life operating and designing sawmill equipment.

His testimony established that all circular saws such as the instant trimmer throw cut-offs. However, he contended that the skill saw guard advocated by the plaintiffs expert would be useless on such trimmers since those guards are designed to protect fingers and not to prevent the throwing of cut-offs. He also pointed out that the tremendous speed at which the trimmer blade rotates “approximately 1,800 revolutions per minute” makes it more prone than a skill saw to throw pieces of lumber. The high speed, however, is required to meet the capacity of today’s commercial sawmills.

Fritz related that Albany, since its inception in 1947, had sold approximately fifty to seventy-five trimmers of the type herein. The company had also completely designed eight to ten sawmills in which similar trimmers had been utilized. However, no shield was ever sold as a component part of any trimmer manufactured by Albany.

His company would design a shield for the trimmer only when it was responsible for designing the entire sawmill; but, even then, the actual construction and installation of the shield was done by the contractor. In such cases the shield was not a component part of the trimmer itself, but was separately designed and installed to meet the requirements of the particular mill. In all other cases, that is, where the company did not design the mill and merely sold the trimmer to be installed as a component part thereof, the shielding was left to the purchasers.

Fritz’s testimony established that sawmills are arranged in sequence, and machines such as the instant trimmer are merely component parts of the production line-up. The sequence, of course, varies from mill to mill. Accordingly, the method of protecting or shielding workmen from flying cut-offs is different for each mill. Therefore, it would be relatively impossible to include, as a component part of the trimmer a shield which would meet the criteria of every purchaser. The sequence and capacity of the mill, the position of the workmen, the space available and even the type of lumber to be produced are all factors which must be considered when designing the shield. Fritz never argued that the trimmer should not be shielded. His only contention was that the shield is the responsibility of the person who designs the mill.

To illustrate the complexities involved in the design and placement of trimmer shields, we note that the trimmer which was replaced by the Albany model required no shielding at all. That trimmer, since it was an undercut saw, that is, the blades were raised rather than lowered to cut the boards, threw cut-offs upstream or in the opposite direction from the decedent. Consequently, there was no requirement to shield the decedent from injury. By contrast, the Albany trimmer, being an overcut saw, threw cut-offs downstream in the direction of the decedent.

Although Howard, the engineer who designed the addition to the instant mill, requested Albany to make several small adjustments in the size of the trimmer, Albany was never consulted with regard to the design of the mill; nor was Albany requested to advise Howard concerning the shield requirements of the trimmer. Since Albany was unaware of the mill design, it would have been useless for it to attempt to design a shield for the trimmer.

On appeal there has been no contention that the instant trimmer did not throw the cut-off which struck the decedent. Therefore, since Albany designed and sold said trimmer, its conduct was a substantial factor or cause in fact of the accident. Shelton v. Aetna Casualty & Surety Company, La., 334 So.2d 406; Dixie Drive It Yourself System v. American Beverage Company, 242 La. 471, 137 So.2d 298 (1962).

However, a finding that Albany’s conduct was a cause in fact of the decedent’s injury does not, without more, establish liability. Additionally, Albany must have breached a legal duty imposed to protect the decedent against the particular risk that occurred. The particular risk herein was the danger of being struck by cut-offs ejected by the trimmer. The question on appeal is, therefore, did Albany have a duty to protect against that risk; and, if so, did it breach that duty.

In cases where, as herein, no statutory duty exists, courts may impose duties upon manufacturers to protect the well-being of persons who use their products in this state. The general jurisprudential rule is that a manufacturer owes all reasonably foreseeable users of its product a duty to adequately design and manufacture that product. Bowen v. Western Auto Supply Company, 273 So.2d 546 (La.App. 1st Cir. 1973); Gauthier v. Sperry Rand, Inc., 252 So.2d 129 (La.App. 3rd Cir. 1971), writ refused, 259 La. 940, 253 So.2d 382 (1971).

Accordingly, the plaintiffs urge this court to impose a duty upon Albany to protect the decedent against the risk that occurred. We find, however, that the burden to properly shield the subject trimmer was not the responsibility of Albany in the instant case.

The custom of the industry, although not conclusive, may be considered when determining the duties owed by a manufacturer for its product. Leathern v. Moore, 265 So.2d 270 (La.App. 1st Cir. 1972). In the instant case, the unrebutted testimony of Albany’s expert, Fritz, established that the custom in this industry is to shield the trimmer by various methods after it is installed into the mill assembly line. In fact, no trimmer manufactured in the United States comes equipped with a shield. His testimony also established that it is always the designer of the mill who provides shielding for the workmen, based upon the physical lay-out of the plant. As we have previously noted, Albany had nothing whatsoever to do with the design of the instant sawmill.

The purchaser and decedent were both aware of the custom to supply trimmers without shielding, and, upon discovering that the subject trimmer was throwing cutoffs in decedent’s direction, a shield was constructed at the site without even consulting or questioning Albany. Furthermore, at the time of its installation, Albany’s obligation to shield the trimmer was never raised, and there is no evidence in the record to indicate that Albany was charged back for the expense of constructing and erecting said shield.

We have carefully considered the evidence in light of the danger involved and the unique nature of the product as a component part of the sawmill production line; and we conclude that the custom of the industry to shield the trimmer by on-site construction is more reasonable than to attempt to design a trimmer component part to protect against all contingencies.

We, therefore, reject plaintiff’s argument that Albany owed a duty to the decedent to provide a shield on the trimmer it sold to Terrebonne.

We also reject plaintiff’s contention that Albany owed a duty to warn the decedent of the danger. Where the risk is obvious, there is no duty to warn or protect against it. Albert v. J & L Engineering Company, 214 So.2d 212 (La.App. 4th Cir. 1968).

The risk was obvious herein, as both the purchasers and users of the Albany trimmer knew of its propensity to throw cut-offs. In fact, before putting the trimmer into operation, the purchasers built a protective cage around the operator of the saw some twenty-feet upstream from the trimmer. Tragically, however, the design of the mill failed to include similar protection for the decedent on the downstream side. Albany, of course, was not responsible for the design failure.

In view of the evidence presented in this case, we find that Albany breached no duty to the decedent, and, consequently, the finding of liability against it by the trial court must be reversed.

Due to our reversal of the finding of liability on the part of Albany, the remaining issues on appeal, that is, the questions of liability of Nichols and Wilco, in quantum, are now moot.

ORDER IN NO. 10,849

For the above and foregoing reasons, the judgment of the trial court in Appeal No. 10,849 which found Albany Machine and Supply Company liable to the plaintiffs for defects in the design of its trimmer is hereby reversed. The dismissal of the plaintiffs’ suits against Nichols Construction Corporation and Wilco Machine Works is affirmed. All costs are to be paid by plaintiffs.

REVERSED IN PART, AFFIRMED IN PART AND RENDERED.

ORDER IN NO. 10,850

For the reasons set forth above, the judgment which found Albany Machine and Supply Company liable to the plaintiffs for defects in the design of its trimmer is hereby reversed. The dismissal of the plaintiffs’ suits against Nichols Construction Corporation and Wilco Machine Works is affirmed. All costs are to be paid by plaintiffs.

REVERSED IN PART, AFFIRMED IN PART AND RENDERED.


text:
    John K. WASKOM v. Frank CACIOPPO. LOUISIANA FARM BUREAU MUTUAL INSURANCE COMPANY v. Frank T. CACIOPPO. Frank T. CACIOPPO v. MILLER FORD COMPANY, INC., et al.
    Nos. 10888-10890.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.
    Rehearing Denied Nov. 15, 1976.
    Writ Refused Jan. 14, 1977.
    Ronald J. Brumfield of James, Knight and Brumfield, Franklinton, for plaintiff John K. Waskom.
    John D. Kopfler, Hammond, for defendant Frank T. Cacioppo.
    Emile L. Turner, Jr., New Orleans, for third party defendant Miller Ford Co.
    Robert E. Barkley, Jr. of Sessions, Fish-man, Rosenson, Snellings & Boisfontaine, New Orleans, for third party defendant Fred Jones Mfg. Co.
    John N. Gallaspy of Gallaspy & Paduda, Bogalusa, for plaintiff Louisiana Farm Bureau Mut. Ins. Co.
    Before SARTAIN, BLANCHE and LOT-TINGER, JJ.
   BLANCHE, Judge.

These consolidated suits arise from an accident which occurred on Louisiana Highway No. 10 in Washington Parish, Louisiana. The accident took place when Frank T. Cacioppo, appellant, was unable to stop for a school bus that was slowing down to pick up a child of John K. Waskom, appel-lee, whose house and farm buildings were located on the south side of the highway. As appellant was following the bus, he allegedly applied his brakes in order to bring his vehicle to a stop behind the bus when the brakes, suddenly and without warning, failed. To avoid the bus and child, appellant swerved his truck to the left, went off the highway, crossed the shoulder of the road, hit and knocked down a utility pole, continued onto the property of John Was-kom, and hit a gas storage tank next to Waskom’s barn. A broken wire from the utility pole ignited the gas from the storage tank, starting a fire that burned up the barn and all of the hay stored therein.

Appellant blames the brake failure on a brake booster which he contends became separated as a result of a manufacturing defect. The brake booster was manufactured by Fred Jones Manufacturing Company, Inc., and purchased by appellant from Miller Ford Company, Inc., in Franklinton, Louisiana.

The following legal proceedings arose from these factual circumstances. The first suit was filed by Waskom against Cacioppo for the damage to Waskom’s property which was not reimbursed by Waskom’s insurer. Cacioppo filed a third party demand in that suit against Miller Ford Company and Fred Jones Manufacturing Company. The second suit was a subrogation suit by Waskom’s insurance company, Louisiana Farm Bureau Mutual Insurance Company, against Cacioppo for $1,100 which the insurance company paid to Waskom for damages to his barn. Cacioppo also filed a third party demand in that suit against Miller Ford and Fred Jones Manufacturing Company. The third and last suit was filed by Cacioppo against Miller Ford and Fred Jones Manufacturing Company for the damages that occurred to his truck in the accident.

The trial court rejected Cacioppo’s testimony that his brakes failed and held that the accident was solely his fault, based on the undisputed physical fact that appellant Cacioppo’s vehicle left 160 feet of skid marks. Judgment was rendered in favor of Waskom and his insurer against Cacioppo in the total principal amount of $5,032.50. Ca-cioppo’s suit was dismissed, as were his third party demands against Miller Ford Company and Fred Jones Manufacturing Company. Cacioppo has perfected an appeal from the foregoing judgments. We affirm.

The only issue in the case is whether the trial judge committed manifest error in holding that Cacioppo did not prove that the accident in question was caused by a defect in the brake booster.

We approve the trial judge’s findings of fact as set forth in his Reasons for Judgment as follows:

“The evidence shows that in December of 1968, Mr. Cacioppo bought a brake booster from Miller Ford in Franklinton. The booster was sold by Miller Ford boxed and sealed as it came from the manufacturer. Mr. Cacioppo installed the booster himself. The braking system worked fine until the date of the accident. At that time the truck had been driven some 5600 miles since the installation of the booster.
“The evidence further shows that the Cacioppo truck was towed from the scene of the accident to Miller Ford in Frank-linton by Mr. Floyd Jarrell, a mechanic for Miller Ford. On arriving at the scene he was told that the brakes had failed and he noted that the booster had separated at a point where it is joined by a band tightened by a bolt and nut. He towed the truck in and loosened the band, replaced it in its proper position, tightened it, and the brakes worked properly.
“The evidence is clear that the booster comes as a unit from the factory with the band joining the two elements. When the booster is installed there is no necessity to make any adjustments of the band. Normally the bolt which tightens the band is bent by the manufacturer after tightening so the bolt cannot slip loosening the band. According to Mr. Jarrell, he loosened and tightened the nut on the bolt of this booster after the accident indicating the bolt was straight. It is contended that the bolt being left straight by the manufacturer caused the nut to work loose, in turn- loosening the band so the booster separated causing the truck to lose braking power. It is clear that if the booster separates in the manner described the brake will fail and go to the floor. The question is whether that happened in this case.
“The evidence strongly suggests that the accident happened in the manner testified to by Mr. Cacioppo except for the salient uncontradicted physical fact that the state trooper testified he found some 160 feet of skid marks on the roadway and into the Waskom yard. If the brake booster separated prior to the accident the evidence is clear that there would have been no braking power. Certainly there would not have been enough to cause 160 feet of skidding, some of it in dirt off a roadway.
“Consequently, the evidence is simply insufficient to show that the separation of the booster occurred prior to the accident. * * *” (Reasons for Judgment, Record, pp. 69-70)

Evidently, the trial judge did not believe appellant’s testimony that his brakes failed, because if they had failed, then appellant could not have left the skid marks. Another fact which may have influenced the trial judge is the fact that appellant Cacioppo is a mail carrier and not a mechanic, even though he may well have known how to install a brake booster. Nevertheless, the installation was the responsibility of appellant, and the possibility exists that the separation of the booster may have been a result of faulty installation. Additionally, appellant had driven his vehicle for over 5,600 miles with no apparent problem with his booster until the time of the accident. Also, the testimony of a brake expert at trial suggested that if the booster had failed, then the brakes would have gone to the floor. However, if there had been no brakes, it would have been physically impossible to leave the length of skid marks observed at the scene.

There is no error in the trial judge’s factual findings, and appellant has failed to sustain the burden of proving that the proximate cause of the accident was a brake failure.

ORDER IN NO. 10888

For the above and foregoing reasons, the judgment of the trial court in Suit No. 10,888 is affirmed, at the cost of appellant, Frank T. Cacioppo.

AFFIRMED.

ORDER IN NO. 10889

For the reasons set forth above the judgment of the trial court herein is affirmed, at the cost of appellant, Frank T. Cacioppo.

AFFIRMED.

ORDER IN NO. 10890

For the reasons set forth above, the judgment of the trial court herein is affirmed, at the cost of appellant, Frank T. Cacioppo.

AFFIRMED.


author: HALL, Judge. MARVIN, Judge

text:
    Hal V. LYONS, Plaintiff-Appellee, v. CITY OF SHREVEPORT, Defendant-Appellant.
    No. 13016.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 1, 1976.
    En Banc. Rehearing Denied Dec. 6, 1976.
    Writ Refused Feb. 3, 1977.

      John Gallagher, Roland J. Achee, James R. Malsch and Neil Dixon by Neil Dixon, Shreveport, for defendant-appellant.
    Hal. V. Lyons, Shreveport, for plaintiff-appellee.
    Before BOLIN, PRICE, HALL, MARVIN and JONES, JJ.
   HALL, Judge.

Hal V. Lyons, an attorney, sues the City of Shreveport for attorney’s fees allegedly due for services rendered in a tort action brought by his client, an employee of the City, against a third party tort-feasor which action resulted in recovery by the City of workmen’s compensation benefits and medical expenses paid to and for the employee. Relying on the holding of the Third Circuit in Broussard, Broussard & Moresi, Ltd. v. State Auto & Casualty Underwriters Company, 287 So.2d 544 (La.App.3d Cir. 1974) writ refused (“Judgment not final”), 290 So.2d 908 (1974), the district court awarded plaintiff $1,500. Defendant appealed and plaintiff answered the appeal.

On original hearing before a three-judge panel of this Court, a majority of the panel was of the opinion the judgment should be reversed, with one judge dissenting. Pursuant to Art. V, § 8(B) of the La.Const. 1974, the case was assigned for reargument before a panel of five judges.

For the reasons expressed in this opinion, we reverse the judgment of the district court and deny recovery of attorney’s fees under the circumstances presented in the instant case.

Plaintiff’s client, Paul Morgan, was a police officer employed by the City of Shreveport. In August, 1972, Morgan was injured in an automobile accident unrelated to his employment. Morgan, represented by plaintiff, filed suit in December, 1972, against American Motorists Insurance Company for injuries allegedly received in the August accident.

In February, 1973, Morgan was injured in another automobile accident while in the course and scope of his employment with the City. In May, 1973, Morgan, represented by plaintiff, filed suit against Commercial Union Insurance Company and others for damages arising out of the February, 1973 accident. The petition filed in this suit alleged that Morgan was being paid workmen’s compensation benefits by the City and that the City would be entitled to recover benefits paid by it. At some point in time after the suit was filed, plaintiff furnished the City Attorney a copy of the petition. The City, represented by an Assistant City Attorney, filed a petition of intervention pursuant to LSA-R.S. 23:1102 in December, 1973, seeking recovery of compensation benefits paid to Morgan.

There was a dispute as to which accident caused the bulk of Morgan’s injuries, which were serious and disabling. The case against American Motorists was tried in the fall of 1973, and a decision was rendered in April, 1974, awarding Morgan damages, but in effect, attributing most of his injuries to the second accident.

Upon being furnished a copy of the decision in the American Motorists suit, the attorney for Commercial Union in the second suit, being of the opinion there was no question as to liability, recommended to his company that a settlement offer be made of close to its policy limits of $25,000. Commercial Union agreed to pay $23,500 and this offer was ultimately accepted by Morgan and the City.

In order for the settlement to be accomplished, it was necessary that Morgan and the City agree on the amount to be recovered by the City. The City claimed $14,-201.50, which included full wages paid to Morgan for the several months he was away from work. Plaintiff, as Morgan’s attorney, insisted that the City was only entitled to recover compensation benefits paid and not full wages paid. Plaintiff negotiated with the Assistant City Attorney and prevailed in his position resulting in the City accepting $10,222 as reimbursement for compensation benefits paid by it and in final settlement of Morgan’s compensation claim against the City.

The workmen’s compensation settlement proceedings were prepared by the Assistant City Attorney and were filed in court. The settlement papers in the tort suit were prepared by the attorney for Commercial Union and were handled between plaintiff and the Assistant City Attorney. The settlement was concluded May 31, 1974, and the instant suit for attorney’s fees was filed the same day. There was never any discussion between plaintiff and the City’s representatives concerning plaintiff’s claim of a fee prior to plaintiff’s filing suit.

Substantially all of the negotiations with the attorney for Commercial Union in the tort suit were handled by plaintiff. The attorney for Commercial Union had very little contact with the City’s attorney. There was some contact between City officials and the defendant insurance company consisting of correspondence, forwarding bills and the like. Although efforts by the City’s officials and its attorney were not extensive, the City’s claim was actively and effectively pursued by the City’s representatives.

Plaintiff’s prosecution of the tort action against Commercial Union was eminently successful, but it did not actually require unusually extensive work on his part after the decision was rendered in the other suit, liability being virtually conceded and damages being clearly in the range of the policy limits. There was no question that the amount of recovery would be in excess of the amount claimed by the City and the negotiations between plaintiff and the attorney for the insurance company related primarily to the amount of excess to be recovered by Morgan over and above the amount to which the City was entitled. It is apparent and was conceded on oral argument that plaintiff performed no services on behalf of the City or for the City’s benefit beyond those he would have performed in any event on behalf of his client, Morgan.

Plaintiff’s contingent fee agreement with Morgan was for one-third of the amount recovered by Morgan. The amount recovered by Morgan was $13,278 and plaintiff’s fee paid to him by Morgan out of his recovery was $4,429.

Plaintiff claims that the City was benefited by his efforts to the extent of $10,222 and he is entitled to recover a fee from the City of one-third of the amount received by the City or $3,407.33. The district court awarded $1,500 as the reasonable value of the plaintiff’s services to the City.

The general rule is that an attorney is not entitled to receive compensation for his services from anyone other than his client. The right of an attorney to collect fees is based upon contract, regardless of the value and benefit others have derived from his services. Succession of Guichard, 225 La. 315, 72 So.2d 744 (1954); Succession of Russell, 208 La. 213, 23 So.2d 50 (1945); Broussard, Broussard & Moresi, Ltd. v. State Auto & Casualty Underwriters Company, supra; Baron v. Peter, 286 So.2d 480 (La.App. 1st Cir. 1973); Marx v. Sutton, 176 So. 883 (La.App.Orl.Cir. 1937). It is not unusual for one party to a lawsuit (and the party’s attorney) to benefit from the efforts of another party to the suit (and the party’s attorney) where the parties have common interests. In such instances, there is ordinarily no legal basis for the attorney who takes the lead to recover a fee from the less active party in the absence of a contractual agreement therefor.

Courts, however, have made exceptions to the general rule under unusual circumstances which bring the situation under princi-pies of negotiorum gestio, quantum meruit, unjust enrichment, quasi-contract, or the fund doctrine. Such cases as Louisiana State Mineral Board v. Albarado, 248 La. 551, 180 So.2d 700 (1965) and In re Interstate Trust & Banking Company, 235 La. 825, 106 So.2d 276 (1958), while authority for the proposition that an attorney can occasionally recover from one not his client, involve very unusual circumstances. These cases involved extensive efforts by the attorney lasting over a period of years. The persons who eventually benefited by the attorney’s labor did not participate in these efforts, and they never would have recovered were it not for these efforts. The attorney purported to act on behalf of those benefited. Finally, these cases were in the nature of class actions, which are now governed by LSA-C.C.P. Arts. 591 et seq., providing for attorney’s fees to be paid from the recovery on behalf of the class.

The instant case is easily distinguishable from those unusual cases. There was no showing of extensive efforts by plaintiff on behalf of the City of Shreveport which compared with the efforts of the attorneys in the above cases. The City’s attorney participated in the lawsuit to the extent of filing an intervention, and the intervention, together with some negotiation of the amount of the City’s recovery, were the only acts necessary to assure the City’s recovery. Plaintiff did not purport to represent the City at any time. In negotiating the amount of recovery by the City plaintiff’s position and efforts were adverse to the City. In summary, there are no circumstances setting this case apart from the ordinary workmen’s compensation third party tort action.

The Broussard case, supra, relied on by plaintiff and by the trial judge, deserves careful consideration since an exception to the general rule was recognized under allegations of fact similar to (but distinguishable from) the facts established in the instant case. A law firm which successfully represented the employee in an action against a third party tort-feasor resulting in recovery of compensation benefits paid by the employer’s insurer sued the insurance company for an attorney’s fee. The trial court sustained the employer’s exception of no cause of action but the Court of Appeal, Third Circuit reversed, overruled the exception and remanded the case for trial. The appellate opinion reflects the plaintiff law firm’s petition contained the following allegations of fact: (1) plaintiff represented the employee in a suit against the negligent third party in which a recovery of $13,000 was allowed; (2) the compensation insurer of the employer intervened in the tort action and recovered $7,336.16 benefits paid to the employee; (3) the employee recovered $5,663.84; (4) plaintiff’s one-third contingent fee based on the amount recovered by its client was $1,887.95; (5) the result was obtained through the efforts of the plaintiff law firm; (6) the insurance company was enriched by the amount received and it would constitute unjust enrichment for the insurance company to accept the benefits of plaintiff’s work without paying for same; (7) the insurance company relied on plaintiff to prosecute the claim and did little or nothing toward the actual preparation and prosecution of the insurance company’s demand; and (8) expenses of the suit were paid by the plaintiff law firm for which it was never reimbursed.

In Broussard, the court recognized the general rule against recovery of attorney’s fees from one other than a client and recognized the exceptions made in the Albarado and Interstate Trust cases. Noting that considerations inherent in quantum meruit, quasi-contract and unjust enrichment have much in common, it was also observed that the distinctions between quantum meruit and quasi-contract have long been clouded by repeated interchangeable references to both theories. The court confined its inquiry to the Civil Code articles on quasi-contracts, LSA-C.C. Arts. 2292, 2293, 2294, 2295 and 2299. The court held that plaintiff should not be denied an opportunity to prove its entitlement to a fee.

Plaintiff’s allegations and the holding of the court in Broussard are summarized in the following paragraph from the court’s opinion:

“Broussard, Ltd. has alleged that State Auto has relied on Broussard, Ltd.’s services, that State Auto has benefited from the undertaking, and that Broussard, Ltd. has rendered services and incurred certain unpaid expenses pursuant to this undertaking. These allegations state a cause of action based on quasi contract.”

The court further emphasized the allegations that the defendant did little or nothing toward the actual preparation and prosecution of the insurance company’s claim, holding that whether the defendant took substantial steps toward acquisition of its judgment is a crucial factor deserving a trial on the merits.

The holding in Broussard, which stands alone in the jurisprudence in allowing recovery of an attorney fee from one with whom the attorney had not contracted under facts anywhere close to those of the instant case, does not mandate recovery by the attorney in the instant case. First, the decision in Broussard reversed the sustaining of an exception of no cause of action and remanded the case for trial. The court held only that:

“Broussard, Ltd. should not be denied its opportunity to prove its entitlement to a fee, particularly where the Supreme Court has indicated that under certain circumstances such fees are allowable.”

Secondly, the allegations of fact in Brous-sard considered as proven for purposes of the exception, were much stronger than the facts proven in the instant case. There were strong allegations of “reliance” by the defendant on the efforts of the attorney, an undertaking by the attorney that benefited the defendant, little or no participation by the defendant in the prosecution of the suit, and incurrence of unreimbursed expenses by the attorney. The facts alleged show a relatively small fee received by the attorney from his client for the attorney’s work in the case.

In the instant case, the evidence does not support a finding that the City “relied” on the plaintiff to prosecute the City’s claim. The plaintiff did not undertake to represent the City or prosecute its claim. Although the City’s efforts in furtherance of its claim were not great, they were adequate under the circumstances and the efforts of plaintiff were not extensive either. In a material respect, plaintiff’s efforts were adverse to the City. In the words of LSA-C.C. Arts. 2294 and 2295, plaintiff did not undertake “the transaction of another’s business” nor did he “undertake of his own accord, to manage the affairs of another.” Plaintiff is not entitled to recover under the Civil Code articles on quasi-contract.

Neither is plaintiff entitled to recover under other equitable principles recognized in Louisiana law, whether termed unjust enrichment, quantum meruit, fund doctrine or otherwise. The requirements for recovery under unjust enrichment were enunciated by the Supreme Court in Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967) and again applied in Edmonston v. A-Second Mortgage Co. of Slidell, Inc., 289 So.2d 116 (La.1974). The five requirements are (1) enrichment; (2) impoverishment; (3) a connection between the enrichment and the impoverishment; (4) an absence of justification for the enrichment and impoverishment; and (5) no other remedy at law. Minyard indicates that the first four requirements apply to all quasi-contract suits. The requirements were applied in a suit for an attorney fee under facts similar to Broussard and the instant case, Mire v. Travelers Insurance Company, 318 So.2d 93 (La.App. 3d Cir. 1975). The Third Circuit, citing Edmon-ston, refused to apply its decision in Brous-sard where it was shown that the defendant compensation insurer had not actually been benefited (enriched) by the attorney’s efforts.

In the instant case, at least the second requirement for recovery is lacking. Plaintiff suffered no “impoverishment.” He did not perform any services or incur any expense for the City that he would not have performed for his client in any event. He was adequately compensated for his services rendered to his client.

Impoverishment as a requirement of recovery under equitable principles finds its source in the language of LSA-C.C. Art. 1965 which espouses “the moral maxim of the law that no one ought to enrich himself at the expense of another.” (Emphasis supplied to quotation). If the City was enriched in this case, it was not at the “expense” of plaintiff.

Baron v. Peter, supra, is another recent case denying recovery of an attorney fee claimed under equitable principles. The general rule was applied.

The decision in the instant case in no way conflicts with the principle that the Workmen’s Compensation Act should be liberally construed to benefit the employee. To allow the employee’s attorney to collect a fee from the employer, over and above the entirely adequate fee he has already collected from the employee, would not in any way benefit the employee. It would not reduce the employee’s expense of pursuing his claim, nor would it prorate the expenses between the employee and employer, which might be an admirable policy or objective, but for which there is no provision in the Louisiana Workmen’s Compensation statute. This conflict is not between the employer and the employee, but rather between the employer and the employee’s attorney.

Courts of' other states which have considered the question of attorneys fees in suits against third parties by an injured employee who has received workmen’s compensation benefits which result in recovery by the employer of benefits paid, have reached varying results under the particular statutes, laws and jurisprudence of those states. The workmen’s compensation statutes of some states specifically deal with the matter in varying ways. The cases and statutes are discussed in Larson’s Workmen’s Compensation Law, § 74.32.

As noted in Baron v. Peter, supra, allowance of attorney’s fees against one who has not contracted with the attorney may raise ethical questions related to solicitation of legal business. Allowance of attorney’s fees to the attorney for an employee against the employer or the employer’s compensation insurer in third party tort-feasor actions may also raise ethical questions related to conflict of interests. These considerations are noted, not in reference to plaintiff’s efforts in this case which were carried on in the highest degree of professional ethics and skill, but as important reasons for application of the general rule and limited application of exceptions only in unusual circumstances.

The holding of this Court is that under the circumstances of this case, the plaintiff-attorney is not entitled to recover a fee from the employer of his client for services rendered by the attorney in a tort action brought against a third party tort-feasor resulting in recovery by the employer who intervened in the action, of workmen’s compensation benefits paid the employee.

For the reasons assigned, the judgment of the district court is reversed and there is judgment in favor of defendant, City of Shreveport, against plaintiff, Hal V. Lyons, rejecting plaintiff’s demands. Costs of the proceedings, including cost of appeal, are assessed to the plaintiff.

Reversed and rendered.

MARVIN, J., dissents and assigns written reasons.

JONES, J., dissents and concurs in the written reasons of MARVIN, J.

MARVIN, Judge

(dissenting).

These type cases arise because an employee is injured by a tortfeasor while in the course and scope of his employment and is paid workmen’s compensation benefits by his employer or the employer’s insurer. The employee’s attorney then pursues the damage claim. The employer also has a claim against the tortfeasor for amounts paid the employee under the workmen’s compensation law. The eventual settlement or satisfaction of judgment against the tortfeasor produces a fund from which both the employee and employer share.

In Broussard, cited in the majority opinion, the issue was squarely presented as to whether an employee’s attorney, as a matter of law, could recover compensation from an employer in such cases who had benefited from the services of the employee’s attorney, and notwithstanding that the employee’s attorney had not contracted with the employer. Broussard answered in the affirmative and the Supreme Court denied writs in 1974.

In Mire v. Travelers Insurance Company, 318 So.2d 93 (La.App.3d Cir., 1975), the particular circumstances did not warrant application of the Broussard pronouncement, but the pronouncement was again recognized. The court said “ . . .in some circumstances an attorney for one party may recover attorney’s fees from another party without the benefit of a contract of representation when the other party has benefited from the attorney’s services.” Our highest court again denied writs. 322 So.2d 775 (La.1975).

In Broussard, the court expressly noted the allegation that the compensation carrier’s attorney did “little or nothing towards the actual preparation and prosecution of [its] demand [against the tortfeasor].” The court then said:

“Whether or not [the compensation carrier] took substantial steps towards the acquisition of its judgment is a crucial factor deserving a trial on the merits.” 287 So.2d 549. (Emphasis ours).

It had earlier said:

“To say that one has intervened does not necessarily mean that adequate steps were taken toward the prosecution of its demand.” Ibid., pp. 548-549.

The statement of the majority in this case that the employee’s attorney:

“ . . . performed no services on behalf of the City or for the City’s benefit beyond those which he would have performed in any event on behalf of his client, Morgan,”

is legally unfounded and totally irrelevant and outside the issue or test established in Broussard. If we follow Broussard, as we should, the issue or test here should be:

Whether or not the City took substantial steps in its intervention toward the acquisition of the settlement in its favor.

Here the attorney for the tortfeasor’s insurer corroborated the testimony of the employee’s attorney to the effect that practically all of the work in bringing the two cases to a conclusion was done by the employee’s attorney and that there was virtually no contact with the City’s attorney.

Because the employee here sustained two accidents negligently inflicted, each tort-feasor’s insurer attempted to attribute most of the employee’s disability to the other tortfeasor. The case that the employee’s attorney tried and obtained a $3,000 judgment, opened the door for the eventual settlement in the other case because it was then apparent that the disability was attributable to the second accident which occurred while the employee was in the course and scope of his employment.

The employee’s disability exposed the City to workmen’s compensation liability of approximately $25,000. The damage claim against the tortfeasor was perhaps worth more, but the liability insurance coverage was only $25,000. While the City actually paid full wages until the tort claim was resolved, only $10,222 was due to have been paid to or for the employee under the compensation law. The negotiated settlement of $23,500 with the tortfeasor apparently achieved substantial justice but did involve these multi-faceted and overlapping problems which had to be overcome.

The City was paid its workmen’s compensation obligation of $10,222 by the liability insurer in the settlement and obtained a full and final release of a total .‘'disability workmen’s compensation claim without its attorney having exerted any substantial effort. This satisfactory result was produced almost wholly by the employee’s attorney.

The employee’s attorney sued the City for one-third of the $10,222 the City received. The trial court considered all of this, and especially considered the scant efforts made by the attorney for the City [applying the Broussard test], and concluded:

“The court finds that the City . took no material [substantial] steps . towards producing the fund of which it became part beneficiary.”

The trial court then said the City is liable to the employee’s attorney, not for one-third of $10,222, but for “adequate compensation” based on quantum meruit, and allowed $1,500.

Each of these type cases will have to depend on its peculiar facts. But there is nothing wrong with applying Broussard, its holding, or its reasoning to the facts of this case. Instead, the majority attempts to distinguish Broussard and declares that the efforts of the employee’s attorney “in a material respect . . . were adverse to the City”!!!

Where the efforts of an attorney for an employee against a tortfeasor inure to the benefit of an employer or compensation carrier, the employee’s attorney is entitled to a reasonable fee in quantum meruit from the settlement or judgment received by the employer or compensation carrier, unless the employer or compensation carrier has taken substantial steps in acquiring its settlement or judgment against the tortfeasor. This is the rule of Broussard, tacitly approved on two occasions by our Supreme Court as mentioned.

In this case, substantial justice was done below in applying the rule. The judgment below should be affirmed.

I respectfully dissent.


author: HALL, Judge.

text:
    A. W. WILLIAMSON, Plaintiff-Appellee, v. VILLAGE OF BASKIN et al., Defendants-Appellants.
    No. 13022.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 1, 1976.
    En Banc. Rehearing Denied Dec. 6, 1976.
    Writ Refused Feb. 11, 1977.
    John Barkley Knight, Jr., Winnsboro, for defendants-appellants.
    Jerry A. Kirby, Monroe, for plaintiff-ap-pellee.
    Before BOLIN, PRICE and HALL, JJ.
   HALL, Judge.

At issue on this appeal is the legality of the action of the Mayor and Board of Aldermen of the Village of Baskin (1) declaring the office of Marshal or Chief of Police of the Village vacant on the grounds that the elected Chief of Police, plaintiff herein, moved his residence outside the Village limits and (2) appointing a new Chief of Police. The district court held the action invalid for the reasons that the Village is not authorized by law to declare the office vacant, the action was taken without notice, and plaintiff was, in fact, a resident of the Village. Judgment was rendered ordering reinstatement of the elected Chief of Police with full back pay and removal of the appointed Chief of Police. The Village, its Mayor and Aldermen and the appointed Chief appealed. We affirm, but for reasons other than those given by the district court in its written reasons for judgment.

Plaintiff, A. W. Williamson, was elected Chief of Police in March, 1973. At that time he lived with his family behind a furniture store which he was operating in Bas-kin. In October, 1973, he closed the store and moved his family, furniture and possessions to a home he owned about a mile outside of Baskin. For the purpose of attempting to maintain his status as a resident of Baskin, plaintiff “rented” a room in the Mayor’s trailer home for awhile, and then “rented” a room in the home of a friend. He paid no rent, except maybe a dollar a year, and never spent the night or any other significant time in the rented rooms.

At a special meeting held July 24, 1975, the Board of Aldermen adopted a resolution declaring the office of Chief of Police vacant by reason of the fact that Williamson had moved his residence to a place outside the territorial jurisdiction of the Village of Baskin. No notice was given to Williamson of the meeting and he had no knowledge of the action until advised by letter mailed the next day. A few days later defendant, Herman E. Tubberville, was appointed Chief of Police at a meeting of the Mayor and Board of Aldermen. A commission was issued to Tubberville by the Secretary of State and he took the oath of office and commenced his duties on August 4, 1975.

On September 8, 1975, plaintiff filed suit against the Village, its Mayor and Aider-men, and Tubberville, seeking a mandatory injunction and, alternatively, writs of mandamus and quo warranto, praying for reinstatement, back pay, removal of Tubberville from the office, an increase in pay, and attorney’s fees.

The defendants filed answers and recon-ventional demands alleging the legality of the action of the Mayor and Board of Aldermen and seeking dismissal of plaintiff’s suit. Alternatively, in the event of a holding that the action of the Mayor and Board of Aldermen was not properly taken, defendants prayed for a declaratory judgment declaring the office vacant because of plaintiff’s nonresidence. The Village and its officers also filed a peremptory exception of no cause of action and no right of action claiming that title to public office cannot be litigated by injunction or mandamus where the claimant is not in possession of the office.

Williamson filed an exception of no cause or right of action to the reconventional demands contending a declaratory judgment proceeding is not a proper action to remove a public official from office.

In this posture the case went to trial. In written reasons for judgment, the trial court held (1) Williamson was illegally deposed because the Mayor and Board of Aldermen are not authorized by law to declare an office vacant and because the action was taken without notice to plaintiff or an opportunity to be heard; (2) plaintiff intended to maintain a residence in Baskin and intention being the principal consideration, there were no grounds for declaring the office vacated on the grounds of nonresidence; (3) plaintiff was not entitled to an increase in compensation; and (4) plaintiff was not entitled to attorney’s fees. Judgment was rendered accordingly.

Numerous issues are raised on appeal by the parties, including (1) whether plaintiff was a resident of the Village after October, 1973 and at the time the removal action was taken; (2) the authority of the Mayor and Board of Aldermen to declare the office of Chief of Police vacant; (3) whether notice or an opportunity to be heard is required prior to taking such action; and (4) whether the actions filed by the parties are the proper procedural vehicles to determine the issues raised.

Dealing first with the issue of whether plaintiff changed his residence from within to without the Village limits, we conclude the trial court erred in holding that plaintiff maintained a residence within the Village limits. Plaintiff moved his family and possessions tó his home outside of the Village and lived there from and after October, 1973. He “rented” the rooms in the Village for the admitted purpose of attempting to comply with the residence requirement of the law. He never spent any appreciable time in the rooms, never spent the night there, never even took a nap there, and never in any sense actually used the rooms as a place to live, even part time or occasionally. There is no evidence that his move to his former home outside of the Village was temporary or that he intended in the future to reestablish any sort of abode in Baskin.

A person may maintain more than one residence and the fact that one is maintained for political purposes does' not itself prevent the residence from being actual and bona fide. Intent to maintain a residence is an important factor, but intent alone does not establish a bona fide residence. There must be actual, physical use or occupation of quarters for living purposes before residence is established. There was no such use or, occupation in this case.

Plaintiff relies on Stavis v. Engle, 202 So.2d 672 (La.App. 4th Cir. 1967) and Daley v. Morial, 205 So.2d 213 (La.App. 4th Cir. 1967). These cases are not at all similar factually to the instant case. In Daley, a dual residence was maintained for several years and the candidate stayed at the second residence, often with his family, three or four nights each week. In Stavis, the candidate for years maintained living quarters above his restaurant and bar, which was open twenty-four hours a day seven days a week. He slept in the upstairs quarters about five nights a week and slept at his other residence, where his wife and children lived, about two nights each week.

The facts of the instant case are closer to, but weaker than, those in McIntire v. Carpenter, 202 So.2d 297 (La.App. 4th Cir. 1967), in which the candidate was held not to be a resident of Jefferson Parish. The candidate had an office in Jefferson Parish and spent one or two nights a week there, sleeping on a small cot in the office. He spent the other nights of the week at the apartment in New Orleans which he owned and where his wife lived.

Under the uncontroverted facts established by stipulation and testimony in this case, plaintiff changed his residence from within to without the limits of Baskin in October, 1973, and did not thereafter retain residence in Baskin.

Cutting through the other issues presented, this court holds, however, that the action by the Mayor and Board of Aldermen of the Village in declaring the office of Chief of Police vacant was without legal basis because at the time the action was taken there was no requirement in the law that the Chief of Police be a resident of the Village.

Art. VIII, § 13 of the Louisiana Constitution of 1921 provided:

“No person shall be eligible to any office, State, district, parochial, municipal or ward, who is not a citizen of this State and a duly qualified elector of the State, district, parish, municipality or ward, wherein the functions of said office are to be performed. And whenever any officer, State, district, parochial, municipal or ward, may change his residence from this State, or from the district, parish, municipality or ward, in which he holds such office, the same shall thereby be vacated, any declaration of retention of domicile to the contrary notwithstanding; provided further, that this article shall not apply to superintendents of public schools.”

The provisions pf Art. VIII, § 13 were not retained in the 1974 Constitution nor were they carried forward as statutory law. Under the express provisions of Art. XIV, § 17 of the Louisiana Constitution of 1974, the provisions referred to were repealed. After the effective date of the 1974 Constitution, midnight December 31, 1974, there is no constitutional requirement that a municipal officeholder be a resident of or a duly qualified elector of the municipality wherein the functions of the office are to be performed.

There is likewise no statutory requirement that the Chief of Police of a municipality governed under the Lawrason Act (LSA-R.S. 33:321 et seq.) be a resident or qualified elector of the municipality he serves. LSA-R.S. 33:384 provides that the Mayor shall be a qualified elector of the municipality and a resident of the parish for two years. LSA-R.S. 33:385 provides the same qualifications for Aldermen. No such requirement or qualification exists in the statutory law for the office of Chief of Police.

In March, 1973, when plaintiff was elected Chief of Police there was a constitutional requirement that he be a duly qualified elector of the municipality and one of the requirements of being a qualified elector under Art. VIII, § 1 of the 1921 Constitution was that the person be “an actual bona fide resident” of the municipality. In October, 1973, when plaintiff moved outside the Village territorial limits, there was in effect the 1921 Constitutional residence requirement and provision that upon change of residence from the municipality by a municipal officer the office shall be vacated. In July, 1975, when the Mayor and Board of Aldermen declared the office vacant there was no constitutional or statutory residence requirement.

Defendants urge that the action of the Mayor and Board of Aldermen was legally justified because when plaintiff changed his residence in October, 1973, the 1921 Constitutional provisions were in effect, the office was ipso facto vacated, and the fact that plaintiff illegally remained in office until July, 1975 and the fact of the adoption of the 1974 Constitution did not alter the legal consequences of his change of residence in 1973. Defendants refer to Art. XIV, § 26 of the 1974 Constitution which provides:

“Except as otherwise specifically provided in this constitution, this constitution shall not be retroactive and shall not create any right or liability which did not exist under the Constitution of 1921 based upon actions or matters occurring prior to the effective date of this constitution.”

After plaintiff changed his residence in 1973, the office could have been declared vacant and plaintiff removed from office by appropriate authority and proceedings. This did not happen and plaintiff continued to hold the office and exercise the powers and duties thereof. We do not believe Art. VIII, § 13 of the 1921 Constitution meant that an office is ipso facto, automatically vacated by change of residence of the officeholder.

The fact of change of residence may ipso facto, automatically give grounds for having an office declared vacated and the officer removed, but it cannot be said that the office is vacated until such is declared by a court or other authorized official or governing body. Until the fact of plaintiff’s change of residence was duly established and the office declared vacant, plaintiff was entitled to remain in his elected office. Such was his status at the time the 1974 Constitution went into effect and the repeal of the residence requirement did not create any right in plaintiff not existing at the time or based on matters occurring pri- or to the effective date of the Constitution.

Our holding does not apply the provisions of the 1974 Constitution retroactively, but to the contrary applies the law as it existed when the Mayor and Board of Aldermen attempted to remove plaintiff to the facts that existed at that time. The repealing clause of the 1974 Constitution makes it clear that 1921 Constitution provisions not carried forward in the new Constitution or as statutory law should not determine the rights of persons after the effective date of the new Constitution.

Pertinent here are the transitional provisions of the 1974 Constitution contained in Art. XIV, § 15, which provide in part:

“A person holding an office by election shall continue to exercise his powers and duties until his office is abolished, his successor takes office or the office is vacated, as provided by law." (Emphasis supplied)

Plaintiff, in every meaningful sense, was “holding an office by election” on December 31, 1974, when the 1974 Constitution went into effect. He was drawing the salary of the Chief of Police, and he was performing the duties of the Chief of Police. Therefore, under Art. XIV, § 15, he is to continue to hold office until the office is thereafter vacated, as provided by law.

This holding is consistent with the definition of vacancy contained in Art. X, § 28 of the 1974 Constitution:

“A vacancy, as used in this Constitution, shall occur in the event of death, resignation, removal by any means, or failure to take office for any reason.”

The phrase “removal by any means” contemplates removal of the officeholder by lawful means before a vacancy can be said to exist.

Defendants cite State ex rel. Boone v. Ammons, 47 So.2d 370 (La.App. 2d Cir. 1950). In that case brought by the District Attorney under the Intrusion into Office statute (now LSA-R.S. 42:76, et seq.) the court found the officeholder had, in fact, changed his residence and the court declared the office vacated. Thus, the office was vacated by appropriate authority — the court in a proceeding properly brought.

At the time the 1974 Constitution became effective the office of Chief of Police had not been vacated nor plaintiff removed therefrom. The constitutional residence requirement was repealed. At the time the Mayor and Board of Aldermen declared the office vacant, residence in the Village was not a qualification of the office and change of residence from the Village was not a legal basis for declaring the office vacated. The action of the Mayor and Board of Aldermen was illegal and null and void.

On the procedural issues, there are at least two recognized procedures for trying the right of a public official to his office. One is provided by LSA-R.S. 42:76 entitled “Actions to try right to office”, which provides for the action to be brought by the attorney general or district attorney. The other is a quo warranto proceeding authorized by LSA-C.C.P. Arts. 3901 and 3902. In the instant case plaintiff proceeded by petition for mandatory injunction and, alternatively, for writs of mandamus and quo warranto against the municipal corporation, its governing body, and the adverse claimant to the office. The proceeding was proper to raise the issues of entitlement to office and power of the governing body, and the judgment rendered was in accordance with the relief authorized by LSA-C.C.P. Art. 3902.

Resolution of the appeal for the reasons stated makes it unnecessary to consider the remaining issues posed on appeal.

For the reasons assigned, the judgment of the district court is affirmed, at the cost of defendants-appellants.

Affirmed.

      . Prior to 1970, LSA-R.S. 33:381 provided for a “marshal” as one of the officers of a municipality governed by a Mayor and Board of Aider-men. Act 594 of 1970 changed the title of the office to “Chief of Police.” The word “marshal” still is used in several other sections of Title 33. The office will be referred to as “Chief of Police” in this opinion.


author: BOLIN, Judge.

text:
    Robert P. LUDLOW, Plaintiff-Appellant, v. AMERICAN BANK & TRUST COMPANY and Commercial Union Insurance Company, Defendants-Appellees.
    No. 13024.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 1, 1976.
    En Banc. Rehearing Denied Dec. 6, 1976.

      Dimos, Brown & Erskine by Donald R. Brown, Monroe, for plaintiff-appellant.
    Theus, Grisham, Davis & Leigh by Ronald L. Davis, Jr., Monroe, for defendants-appel-lees.
    Before BOLIN, PRICE and HALL, JJ.

       Jones, J., recused.

   BOLIN, Judge.

Plaintiff, an independent contractor spending a substantial part of his time performing manual labor for defendant bank, sues defendant and its insurer in tort for injuries he received when he slipped and fell in a shallow pool of water on defendant’s premises. The trial court found plaintiff’s exclusive remedy was under the Workmen’s Compensation Act but, if not, plaintiff’s contributory negligence barred his recovery in tort. In finding the bank to be a statutory employer of plaintiff, the lower court considered it necessary to find that the work being performed by the independent contractor was an integral part of the bank’s business. Plaintiff appeals, agreeing with the law applied by the lower court, but he contends the bank did not prove plaintiff’s business was an integral part of the bank’s business. We agree plaintiff’s exclusive remedy is under the Workmen’s Compensation Act, but for reasons different from those expressed by the trial judge.

The primary issue is whether or not plaintiff may be classified as an employee of his principal under the Workmen’s Compensation Act without a showing that the work of the contractor was an integral part of the principal’s business.

Relevant to this decision are:

R.S. 23:1021(6) [now 1021(5)]
“Independent Contractor” means any person who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or as a whole, under the control of his principal as to results of his work only, and not as to the means by which such result is accomplished, and are expressly excluded from the provisions of this Chapter unless a substantial part of the work time of an independent contractor is spent in manual labor by him in carrying out the terms of the contract, in which case the independent contractor is expressly covered by the provisions of this Chapter. (Emphasis added)
R.S. 23:1061
Where any person (in .this section referred to as principal) undertakes to execute any work, which is a part of his trade, business, or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; . . .. (Emphasis added)

Plaintiff owned and operated a service station and in connection with this operation he reconditioned repossessed automobiles. Plaintiff contracted with the bank to recondition certain cars which the bank had repossessed so the bank could more easily retail these automobiles. Plaintiff was returning to his car after delivering a reconditioned car to the bank when he slipped in a pool of water and sustained the injuries made the basis of this suit. If plaintiff be considered as an employee of the bank, he clearly was performing a service arising out of and incidental to his employment in the course of his employer’s general business at the time of his injury. (R.S. 23:1035)

Since it is admitted that plaintiff spent a substantial part of his time performing manual labor, he must be treated as an employee of the bank under the clear language of R.S. 23:1021(6).

A finding that plaintiff was performing work which was an integral part of the bank’s business is only required if the claimant is an employee of an independent contractor. R.S. 23:1061; Leger v. Amerada Hess Corporation, 479 F.2d 1250 (5 Cir. 1973); Foster v. Western Electric Co., 258 So.2d 153 (La.App. 2nd Cir., 1972); Sam v. Deville Gin, Inc., 143 So.2d 838 (La.App. 3rd Cir., 1960); Malone, Workmen’s Compensation, The Work of the Louisiana Appellate Courts for the 1962-1963 Term, 24 La.L. Rev. 244.

Since plaintiff’s remedy is exclusively in workmen’s compensation (R.S. 23:1032), it is unnecessary for us to determine if the lower court was correct in finding him contributorily negligent in his tort action.

The judgment is affirmed at appellant’s cost.


text:
    Reginald D. WATSON, Plaintiff-Appellant, v. HARTFORD ACCIDENT & INDEMNITY COMPANY et al., Defendants-Appellees.
    No. 13025.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 1, 1976.
    En Banc. Rehearing Denied Dec. 6, 1976.
    Writ Refused Feb. 9, 1977.

      McKeithen, Burns & Lewellyan, by John J. McKeithen, Columbia, for plaintiff-appellant.
    Hudson, Potts & Bernstein, by Ben R. Hanchey, Monroe, for defendant-appellee, Hartford Acc. & Indem. Co.
    Hayes, Harkey, Smith & Cascio, by Thomas M. Hayes, Jr., Monroe, for defendant-appellee, Empire Fire and Marine Ins. Co.
    Before BOLIN, PRICE and HALL, JJ.
   BOLIN, Judge.

In July 1974, while riding in an automobile driven by his wife, plaintiff was injured in an automobile wreck. It was stipulated the accident was caused by the wife’s negligence and that Hartford Accident and Indemnity Company was the primary insurer with policy limits of $25,000. Empire Fire & Marine Insurance Company was alleged to be the excess insurer. The lower court rendered judgment in favor of plaintiff against Hartford for plaintiff’s personal injuries for $18,000 plus medical expenses. Plaintiff appeals and we affirm.

Appellant contends: (1) his award for personal injuries is inadequate; (2) the court erred in not allowing him recovery for loss of future earnings; and (3) Empire should be liable as an excess insurer if the total award exceeds $25,000.

Immediately following the accident plaintiff was taken by ambulance to a nearby hospital where he remained for seven days. During this period he was treated by a general practitioner. He was then moved to another hospital where he remained for two days and was examined and treated by his family doctor. He received multiple injuries, the most serious being a severe compression fracture of the fourth lumbar vertebra and possible fractures of other vertebrae. On recommendation of an orthopedist, plaintiff’s doctor fitted him with a back brace which he wore for approximately seven months after his release from the hospital. Within approximately two months following the accident he was relatively free from back pain and received no further treatment or medication. During the fall and winter of 1974 he hunted squirrels and ducks frequently, and the following spring he played softball for a local Jaycee team.

At the time of the accident plaintiff was 20 years old and was working during the summer months for his father who operated a courier service for a local bank. He has performed no work since the accident. Pri- or to the accident plaintiff had attended college for several semesters, changing his course of study twice. He first studied geology and testified it was his ambition at that time to become a petroleum engineer. His grades in geology were so poor he was compelled to stay out of school for at least one semester. He had also studied pre-law. He testified he had planned to go back to school in the fall following the accident but was unable to do so because of his injuries. He did return to school the following spring but again was unable to continue his studies because of his poor grades.

Considering first the award of $18,000 as general damages for pain and suffering, we note the testimony of Dr. Rambach, an orthopedist, who examined plaintiff in September 1974 and August 1975. Dr. Ram-bach was of the opinion plaintiff had a 25% disability of the spine and of the body as a whole. He believed plaintiff could perform numerous types of work not involving heavy manual labor. Plaintiff conceded he was not unemployable, but "stated he could not do any job which required heavy lifting or hard manual work.

We find the trial judge did not abuse his discretion in awarding the plaintiff $18,000 plus medical expenses as general damages for his personal injuries. Civil Code Article 1934(3); Spillers v. Montgomery Ward & Company, Inc., 294 So.2d 803 (La.1974), and cases cited therein.

The most serious question is whether or not plaintiff is entitled to a judgment for loss of future earnings. To support an award for this type of damages plaintiff must prove his loss with reasonable certainty. Speculation, probabilities, and conjecture cannot form the basis for the award. Heard v. Sanders, 223 So.2d 212 (La.App. 2nd Cir., 1969); Burrows v. Louisiana Department of Highways, 319 So.2d 867 (La.App. 3rd Cir., 1975).

Plaintiff originally contended his 25% disability would seriously handicap him in his intended career as a petroleum engineer. However, the great weight of testimony was that plaintiffs ability to perform the duties of a petroleum engineer was not diminished by this accident. We are also unconvinced that plaintiff ever demonstrated either the intent or the scholastic aptitude to become a petroleum engineer. He transferred from Louisiana Tech, which possessed an engineering school, to Northeast University which had none, and his grades have been poor. Under the above circumstances there is no basis for an award based on lost wages as a petroleum engineer.

Subject to defendant’s objection, plaintiff also attempted to show his inability to perform various jobs requiring heavy manual labor and offered testimony as to possible loss of future wages as a manual laborer or factory worker. There is no evidence plaintiff ever desired or contemplated an occupation as a manual laborer. Plaintiff testified he felt he could make good grades in a chosen field if he applied himself, and that he intended to return to Northeast and study aviation. The lower court found an award for loss of future earnings based on the salary of either a manual laborer or a factory worker would be pure speculation; we agree.

The evidence indicates the injury did not cause plaintiff to lose any wages from the work he was doing at the time of the accident. Plaintiff’s father testified his son received about $700 per month from the bank for the operation of the courier service; that he was required to pay his own expenses; and that the expenses equaled the income. Plaintiff, therefore, failed to prove any past or future loss of wages from the courier service. Additionally, plaintiff evidenced no desire to continue his job as courier, even had he not been injured.

Appellant forcefully and persuasively argues that to reject his demands for loss of future earnings would in effect penalize him for attempting to get a college education. Plaintiff cites several cases in support of this argument. Edwards v. Sims, 294 So.2d 611 (La.App. 4th Cir., 1974); Green v. State, Southwest Louisiana Charity Hospital, 309 So.2d 706 (La.App. 3rd Cir., 1975); Guidry v. Canal Insurance Co., 313 So.2d 860 (La.App. 1st Cir., 1975); Simmons v. Travelers Insurance Co., 295 So.2d 550 (La. App. 3rd Cir., 1974); Turner v. State, Loui siana State Penitentiary, 333 So.2d 310 (La. App. 1st Cir., 1976). We have examined all the cited cases and find them factually different from this case.

This decision is based upon plaintiff’s failure to prove with any reasonable degree of certainty any loss of future wages; it is not intended to penalize plaintiff for attending college. It would require rank speculation to assume that plaintiff would be a factory worker or manual laborer in the absence of testimony that he reasonably expected to engage in these activities.

We conclude the amount of the award of the lower court is correct, and since this amount does not exceed the coverage of the primary insurer, it is unnecessary for us to decide if Empire is liable as an excess insurer.

The judgment is affirmed at appellant’s cost.