author: CULPEPPER, Judge.

text:
    Elmo BREAUX, Plaintiff and Appellee, v. MARINE ELECTRIC AND RELIANCE INSURANCE COMPANY, Defendants and Appellants.
    No. 6827.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1979.
    Rehearing Denied April 19, 1979.
    Writ Refused June 11, 1979.

      Lewis & Lewis, James T. Guglielmo, Opelousas, for defendants and appellants.
    Shelton & Legendre, Thomas Robert Shelton, Lafayette, for plaintiff and appel-lee.
    Before CULPEPPER, FORET and DOU-CET, JJ.
   CULPEPPER, Judge.

This is a suit for workmen’s compensation benefits. The plaintiff, Elmo Breaux, contends he is totally and permanently disabled as the result of back injuries suffered on September 17, 1976 while employed by the defendant, Marine Electric. The trial judge found plaintiff totally and permanently disabled and awarded $77.60 per week for the period of disability beginning September 17, 1976. Additionally, the trial court awarded penalties and attorney’s fees. The defendants, Marine Electric and its insurer, Reliance Insurance Company, appealed.

The issues on appeal are: (1) Was there an accident on September 17, 1976? (2) If such an accident did occur, what is the extent of the plaintiff’s disability? (3) Were the defendants arbitrary and capricious in their termination of workmen’s compensation benefits as of April 22, 1977, subjecting them to penalties and attorney’s fees? (4) Were the defendants arbitrary and capricious in their failure to resume compensation benefits upon the receipt of medical bills, subjecting them to penalties and attorney’s fees? (5) If the defendants were arbitrary and capricious, was the award of $7,500 for attorney’s fees so excessive as to require a reduction by the appellate court?

■THE ACCIDENT

Plaintiff alleges that on September 17, 1976 he injured his back while attempting to lift a large air conditioner compressor. His fellow worker and brother-in-law corroborated the plaintiff’s claim that while lifting, he felt something pop in his back. He immediately quit working allowing the other workers to finish the job. Because it was lunchtime and the plaintiff was not working at the office location, he went home for lunch. He did not return to work that afternoon because of the pain. After lunch, the brother-in-law reported the accident. There is a record of the accident in the company’s files, but it indicates that the accident occurred in the office warehouse while the plaintiff was moving an appliance. The plaintiff contends that his supervisor put this in the report despite his protestations that the location of the accident was not correct.

The trial judge found that there was in fact an accident on September 17, 1976 which caused the plaintiff’s injuries. In view of the testimony outlined above, we hold that the trial court’s finding of an injury on September 17, 1976 is not clearly wrong under the standard of appellate review of fact enunciated by the Supreme Court in Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

EXTENT OF DISABILITY

The next issue is the extent of plaintiff’s disability. After the accident on September 17, 1976, plaintiff sought medical help on September 20, 1976 from Dr. Philip Purp-era, a general practitioner. This doctor found lumbar spasm and referred plaintiff to an orthopedic surgeon, Dr. Blanda, who confirmed Purpera’s diagnosis of lumbar spasms and treated the patient conservatively for several months. In January of 1977, Dr. Blanda ordered a myelogram, which was negative. However, Dr. Blanda did note that the plaintiff’s anuli meningeal index was enlarged, indicating a possible disc problem. Dr. Blanda then referred the plaintiff to Dr. Robert Martinez, a neurologist, to determine whether the patient suffered a neurological deficit. Dr. Martinez examined the plaintiff on January 31, 1977 and found no neurological abnormalities.

In a report to Reliance dated February 8, 1977, Dr. Blanda stated:

“PATIENT: BREAUX, ELMO DATE: 2/8/77
“FOLLOW UP VISIT: He still complains of some back pain. Neurological report from Dr. Martinez says that he does not feel that this man has a herniated disc. I think our investigative measures are complete. I have released him to return to work at light duty. I feel that he has only a chronic lumbar strain and should be able to return to work.” (Emphasis added)

In a report to Reliance dated April 6, 1977, Dr. Blanda stated:

“PATIENT: BREAUX, ELMO DATE: 4/6/77
“The patient still complains of back pain. His exam again today was normal. It is my opinion that this man should return to work although he still complains of the pain in the lumbar area. All evaluations from neurology neurologic consultations have been normal yet he feels that his back is still working (sic) and he cannot return to his normal activities.”

On receipt of Dr. Blanda’s April 6, 1977 report that plaintiff could return to his normal duties, Reliance terminated compensation payments as of April 22, 1977.

After the termination of compensation benefits, plaintiff did not return to work. He continued to see Dr. Blanda and to complain of pain. Suit was filed on June 21, 1977. When Dr. Blanda examined the plaintiff on June 27, 1977, the pain running down the right leg had reoccurred. On July 11, 1977, Dr. Blanda performed a disco-gram, a procedure whereby a dye is injected directly into the disc to show whether there is any abnormality. This test was positive for a ruptured disc at L5-S1. A surgical laminectomy was performed on July 12, 1977. Plaintiff was discharged from the hospital on July 19, 1977.

Insofar as the record shows, Dr. Blanda last examined the plaintiff on August 29, 1977. He testified that on this examination plaintiff was recovering normally from surgery, but that he could not perform heavy labor. The doctor was of the opinion that it was not long enough after surgery to give a final rating of disability, but he stated that if plaintiff continued to progress as well as he had, he should only have about a 5% residual disability of the body as a whole. The doctor could express no opinion as to whether plaintiff would be able to return to the heavy labor involved in the work he was performing at the time of the accident, but he stated that he thought plaintiff would certainly be able to return to gainful employment. The doctor stated that, as a general rule, a final estimate of residual disability could not be made until six months after such disc surgery.

Under these facts we will first address the question of the extent of plaintiff’s disability. Since the accident occurred on September 17, 1976, the 1975 amendments to the Workmen’s Compensation Act are applicable. LSA-R.S. 23:1221(1) defines temporary total disability as follows:

“(1) For injury producing temporary total disability of an employee to engage in any gainful occupation for wages whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience, sixty-six and two-thirds per centum of wages during the period of such disability.”

LSA-R.S. 23:1221(2) defining “permanent total disability” is exactly the same as the definition of “temporary total disability” except for the word “permanent.” As a practical matter, it makes little difference whether the award is for temporary total disability or for permanent total disability since the weekly payments are the same, the duration of payments is the same, and under LSA-R.S. 23:1331 the judgment is subject to modification after six months on the application of either party to show that the disability has subsequently either diminished or increased.

LSA-R.S. 23:1221(3) defines “partial disability” as the inability to perform the duties in which the employee was customarily engaged when injured, and the rate of compensation is two-thirds of the difference between the wages the employee was earning at the time of the injury and any lesser wages which the employee actually earns thereafter. This subdivision has no application here.

In the present case, the district judge found plaintiff is totally and permanently disabled and awarded benefits accordingly. Although, as stated above, it makes little difference as a practical matter whether the award is for permanent total disability or temporary total disability, we find that under the expert medical evidence in the present case the award clearly should be for temporary total disability. Dr. Blan-da, the treating physician and a Board Certified Orthopedic Surgeon, expressed the opinion that as of the date of his deposition, which was about five months before trial, plaintiff was totally disabled. However, this physician was of the opinion that after recovery from surgery plaintiff’s residual disability would be only about 5% of the body as a whole, and, although it was too soon after surgery to express an opinion as to whether plaintiff could return to the hard manual labor which he was performing at the time of the injury, that he would be able to return to gainful employment. There is no expert medical evidence to contradict this opinion by Dr. Blanda. Accordingly, we will amend the judgment appealed to change the finding of disability to temporary total disability.

PENALTIES AND ATTORNEY’S FEES

The next issue is penalties and attorney’s fees. LSA-R.S. 23:1201.2, which is applicable to employers under the Workmen’s Compensation Act, and LSA-R.S. 22:658, which is applicable to workmen’s compensation insurers, contain substantially similar provisions that if payments are not commenced “within sixty days after receipt of written notice”, penalties and attorney’s fees will be assessed “when such failure is found to be arbitrary, capricious, or without probable cause.” The discontinuance of payments is also subject to this same test.

The district judge did not find defendants arbitrary, capricious or without probable cause in discontinuing payments in April of 1977 after receiving Dr. Blanda’s April 6, 1977 report that plaintiff could return to his normal activities. This is clearly correct. Defendants had a right to rely on this report from the treating physician who is highly qualified.

The only serious issue regarding penalties and attorney’s fees is whether Reliance Insurance was arbitrary, capricious or without probable cause in not resuming payments after the July 12, 1977 surgery until September 25, 1977.

In his written reasons, the district judge states:

“The problem arises in this particular instance as the notifications were sent to Dwight Andrus Agency relative to the medical bills of Mr. Breaux and in August of 1977, Dwight Andrus Insurance Agency was in receipt of a bill from Our Lady of Lourdes Hospital covering the hospitalization of Mr. Breaux for the surgery performed on the 14th of July, 1977. This bill remained unpaid and a second bill was sent the Dwight Andrus Insurance Agency seeking collection of this amount. No inquiry was made by Reliance Insurance Agency or Dwight An-drus Insurance Agency after the receipt of the hospital bills, which hospital bills were forwarded by the Dwight Andrus Agency to Reliance Insurance Company.
“In view of the manner in which workmen’s compensation claims were apparently handled in this particular instance, that is through the Dwight Andrus Agency and in turn forwarded to Reliance Insurance Company, defendants should have known of the continuing disability of the plaintiff herein, and their failure to make inquiry as to the condition of Mr. Breaux and make a determination of the facts of the surgery were such as to render their failure to pay compensation from the date of the termination to present arbitrary and capricious and accordingly, renders them liable for penalties and attorney fees.”

Mitzi Melancon, the claims supervisor for the office of Reliance Insurance Company in Metairie, Louisiana, testified that Dwight Andrus Insurance Agency had written the policy in question, and, as a matter of courtesy to the insured, had received medical bills and forwarded them to Reliance, but that Dwight Andrus had no authority to act on the bills and was not the agent of Reliance in this respect. Mrs. Me-lancon was first questioned about a request from Our Lady of Lourdes Hospital for payment of services rendered to plaintiff on June 7, 1977 in the amount of $83.10. This notice shows on its face that it was received by Dwight Andrus and forwarded to the Metairie claims office of Reliance, where it was stamped “Pull August 22, 1977.” Mrs. Melancon testified that she did not know whether Reliance was liable for these services and she did not recall taking any action at the time.

Mrs. Malancon was next questioned about the bill from the Lafayette Bone & Joint Clinic for services rendered June 6 through July 27, 1977 in the sum of $30. Mrs. Melancon testified that she assumed this was for follow-up office visits to the doctor after plaintiff was discharged, and so she paid it on July 7, 1977. Of course, this was before the surgical laminectomy was performed by Dr. Blanda on July 12, 1977.

Ms. Patricia Guidry, a claims secretary for Dwight Andrus Insurance Agency, identified a collection notice received from Our Lady of Lourdes Hospital on August 18, 1977 and mailed to Reliance on August 19, 1977. This collection notice is for services rendered to plaintiff on June 7, 1977 in the sum of $83.10, and is a copy of the same notice about which Mrs. Melancon testified, as discussed above. Ms. Guidry also testified regarding another bill from Our Lady of Lourdes Hospital received by Dwight Andrus and mailed to Reliance on September 6, 1977 for services rendered to plaintiff ending July 19, 1977 in the sum of $1,675.

Mrs. Melancon was called back to the stand to explain what action her office took on receiving these bills and collection notices. She testified that after receiving Dr. Blanda’s April 6, 1977 report that plaintiff could return to work at his normal duties, workmen’s compensation payments were terminated as of April 22, 1977. Mrs. Me-lancon said the first knowledge Reliance had of plaintiff’s subsequent surgery on July 12, 1977 was when she received on August 3, 1977 the hospital bills from Our Lady of Lourdes Hospital. She testified that she did not know what the surgery was for or whether it was causally related to the accident in question. It was Mrs. Melan-con’s testimony that Reliance did not actually learn of the laminectomy until Dr. Blanda’s deposition was taken on September 14, 1977. Also, the evidence shows the first bill received by Reliance from Dr. Blanda for services in connection with the July 12, 1977 surgery, is dated September 15, 1977. On September 25, 1977, Reliance paid all medical bills and all compensation payments due since April 22, 1977. Payments were still being made at the time of trial.

LSA-R.S. 23:1201.2, applicable to employers, and LSA-R.S. 22:658, applicable to insurers, provide that claims must be paid “within sixty days after receipt of written notice.” Defendants correctly point out that in the present case plaintiff gave no written notice to either the employer or the insurer of his claim for medical expense or compensation benefits arising out of the July 12, 1977 surgery. As stated above, Reliance did not learn of the surgery until Dr. Blanda’s deposition was taken on September 14, 1977. The medical expense was paid and compensation payments resumed on September 25, 1977.

We cannot agree with the trial judge that defendants were arbitrary for failing to investigate and pay immediately the hospital bills in connection with the July 12, 1977 surgery, which bills were received by Dwight Andrus and forwarded to Reliance either in late July or early August of 1977. Mrs. Melaneon says she did not receive the bill until August 3, 1977, and, not knowing whether Reliance was liable, she did not pay it immediately. Of course, it was paid on September 25, 1977, which was within sixty days after Reliance had any reason even to investigate.

These penalty statutes, like all penalty statutes, must be strictly construed. Cole v. Sears, Roebuck & Company, 337 So.2d 900 (La.App. 3rd Cir. 1976); Thompson v. Natchitoches Parish Hospital Service District, 335 So.2d 81 (La.App. 3rd Cir. 1976). Penalties and attorney’s fees will not be assessed unless it is clearly shown that the defendant was arbitrary and capricious, particularly where there has been no written notice of the claim and the defendant pays the claim within sixty days after it has adequate knowledge. Mayes v. International Paper Company, 185 So.2d 854 (La. App. 3rd Cir. 1966).

Having decided defendants are not liable for penalties and attorney’s fees, we do not reach the question of whether the award of $7,500 for attorney’s fees is excessive.

For the reasons assigned, the judgment appealed is reversed and set aside insofar as it awards penalties and attorney’s fees. The judgment is amended so as to provide that benefits be paid for temporary total disability under LSA-R.S. 23:1221(1), instead of for permanent total disability. Otherwise, the judgment appealed is affirmed.

REVERSED IN PART, AMENDED IN PART AND AFFIRMED IN PART.


source: Caselaw Access Project

author: WATSON, Judge. STOKER, Judge, DOUCET, Judge,

license: Public Domain

text:
    Bennie SLOCUM, Plaintiff-Appellant, v. Odell LAMARTINIERE, Defendant-Appellee.
    No. 6850.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1979.
    Concurring Opinion March 8, 1979.
    Dissenting Opinion March 13, 1979.
    Rehearing Denied April 19, 1979.
    Guidry and Doucet, JJ., voted for rehearing.

      Boatner & Luke, R. H. Luke, Bunkie, for plaintiff-appellant.
    Gravel, Roy & Burnes, Chris J. Roy, Alexandria, for defendant-appellee.
    Before WATSON, GUIDRY, CUTRER, STOKER and DOUCET, JJ.
   WATSON, Judge.

This is a suit to recover workmen’s compensation benefits. Defendant, Odell La-martiniere, a grocer for thirty-two years, undertook the construction of a new grocery store and engaged plaintiff, Bennie Slocum, a carpenter, to perform all of the necessary carpentry work. On January 4, 1977, plaintiff was injured in a fall from a ladder and filed suit against defendant for permanent partial disability benefits. The trial court rendered judgment in favor of defendant Lamartiniere and plaintiff has appealed.

The facts are uncomplicated:

It is undisputed that plaintiff spent his work time in manual labor. He was assisted by his son, Lynn Slocum. Both were paid by check each Friday: plaintiff earned $7 an hour and his son $6. The construction materials were ordered and paid for by defendant Lamartiniere who selected the grade of materials desired. (TR. 53). Slocum paid for his own tools and transportation. Defendant had also engaged Ted La-borde to do the electrical work on the new store, Raymond Blanchard to do the plumbing; and a bricklayer to do the brick work. Slocum testified that he had been hired by the hour to do whatever Lamartiniere wanted done. (TR. 82). His work for La-martiniere was identical to the work he had done for general contractors. (TR. 62).

When the new store was completed, defendant Lamartiniere moved his business into it with no interruption of grocery store activity.

The liability issue is whether Slocum’s work was part of Lamartiniere’s trade, business or occupation.

CONTENTIONS OF THE PARTIES

The parties have argued this case twice, both times taking the position that Slocum was an independent contractor. We are not certain that their appreciation of Slocum’s status is correct, but in any event, the question is whether the construction of the grocery store was part of Lamartiniere’s trade, business or occupation.

Counsel for defendant says that his client is a grocer and that the construction work in which Slocum was engaged formed no part of Lamartiniere’s grocery “business.” Therefore, according to defendant’s counsel, Lamartiniere owes Slocum no compensation benefits.

Counsel for plaintiff argues that, either (1) building a new grocery store is part of a grocer’s business or (2) when defendant began building the new store he became not only a grocer but a building contractor, and under either alternative, Lamartiniere is liable to Slocum for compensation benefits.

LIABILITY

A person rendering services for another is presumed to be an employee. LSA-R.S. 23:1044. Slocum could be regarded as an employee under these circumstances. See Thomas v. Holland, 345 So.2d 1000 (La.App. 2 Cir. 1977). If Slocum is regarded as an independent contractor, doing manual labor, rather than an employee, he would be covered under the provisions of the compensation act unless otherwise exempted. LSA-R.S. 23:1021(5). LSA-R.S. 23:1035 and LSA-R.S. 23:1061 provide that the services rendered by an employee or independent contractor must be “in the course of” or “part of” the employer’s “trade, business or occupation.” In Lushute v. Diesi, 354 So.2d 179 (La., 1978) the Louisiana Supreme Court held that such work must be a “necessary,” rather than incidental, part of the business. 354 So.2d 183. Lushute concluded that air conditioning is not an essential part of a restaurant business. However, a building is an essential part of a grocery store; Lushute is not controlling here. Defendant Lamartiniere had determined that his business required a' new building, and this decision was his to make, not ours.

Clearly, Lamartiniere was not building his new store as a hobby. Whether the building be regarded as a continuation of the grocery business or a venture into the construction business, it was a commercial enterprise in every respect and those employed for the labor are covered by the compensation act. Speed v. Page, 222 La. 529, 62 So.2d 824 (1952); Doss v. American Ventures, Inc., 261 La. 920, 261 So.2d 615 (1972). Here, as in Doss, Lamartiniere undertook to contract the construction of his new store and could be considered engaged in a second trade or business as a contractor. It is well established that an individual may be engaged in more than one trade or business. Broussard v. Adams, 270 So.2d 913 (La.App. 3 Cir. 1972); Evans v. Naihaus, 326 So.2d 601 (La.App. 4 Cir. 1976).

The trial court was clearly wrong in deciding that Slocum’s employment by La-martiniere was not a part of the latter’s trade, business or occupation.

BENEFITS

The medical evidence is contained in the deposition of Dr. Douglas Gamburg, an or-thopaedic surgeon of Alexandria. He described plaintiff’s injury as a comminuted fracture of the upper humerus. He assigned 10% partial permanent disability of the “shoulder” or “upper extremity.” (TR. 33). Plaintiff’s brief states that the parties agree that he has 10% partial permanent impairment of the “shoulder” and that the medical expenses totaled $328 as of trial.

The compensation act does not include “shoulder” as a body part so we will consider the loss referable to Dr. Gamburg’s other description, the “upper extremity” or arm, the loss of which is compensable for 200 weeks. LSA-R.S. 2S:1221(4)(f).

The award of compensation is as provided by LSA-R.S. 23:1221(4)(o), 10% of weekly benefits for 200 weeks, but this amount must be increased to the 20% minimum of LSA-R.S. 23:1202.

Plaintiff’s compensation rate is alleged to be $130 per week and this has not been disputed by defendant. The award, therefore, is $26 for 200 weeks.

Plaintiff’s demand for penalties and attorney’s fees is without merit and is denied.

DECREE

It is ordered, adjudged and decreed that there be judgment herein in favor of Bennie Slocum, plaintiff, and against Odell La-martiniere, defendant, for weekly compensation benefits in the amount of $26 per week payable weekly beginning January 4, 1977, for a period of 200 weeks, together with legal interest on all past due payments from due date until paid, and for medical expenses in the amount of $328 plus any other medical expenses legally due.

Costs of all proceedings at trial and on appeal are taxed against defendant.

REVERSED AND RENDERED.

STOKER, J., concurs and assigns written reasons.

DOUCET, J., dissents and assigns written reasons.

GUIDRY, J., dissents for the reasons assigned by DOUCET, J.

STOKER, Judge,

concurring.

The majority in this case finds in favor of workmen’s compensation claimant, Bennie Slocum. I concur on the basis of the holding of the Louisiana Supreme Court case in Doss v. American Ventures, Inc., 261 La. 920, 261 So.2d 615 (La.1972). The thrust of that case was that the owner of a building rented entirely to various tenants was in the construction business, not the rental business, when it undertook to reconstruct the building after its destruction in a hurricane. In the case before us the defendant is the owner of a small grocery. He undertook to construct a new building to house his grocery business. Plaintiff was engaged to do carpentry work. Other phases of the work were contracted out to specialty contractors including work consisting of plumbing, electrical and masonry.

Our dissenting brothers hold that plaintiff was an independent contractor within the meaning of LSA-R.S. 23:1021(5). As a carpenter a substantial part of plaintiff’s work time was spent in manual labor. Nevertheless, our dissenting brothers take the quite reasonable position that plaintiff should be denied compensation on authority of the very recent decision of the Louisiana Supreme Court in Lushute v. Diesi, 354 So.2d 179 (La.1978) in which it reversed a decision of this court. In that case the dependents of Lushute were denied compensation upon a finding that Lushute was not performing work which was a part of the defendant owner’s restaurant establishment when Lushute was injured while working on the air conditioning system in the restaurant. The Supreme Court held that Lushute was an independent contractor and was not engaged in a part of the trade, business or occupation of the restaurant owner. The dissent is of the view that the same approach should be made here. Therefore, it is argued that in working as a carpenter on a new grocery building, plaintiff Bennie Slocum, was not engaged in any part of Odell Lemartiniere’s existing grocery business.

The problem on which we focus in this case has long plagued the courts. It is one with which our Supreme Court has struggled in attempts to clarify and settle legal principles and establish guidelines. See Speed v. Page, 222 La. 529, 62 So.2d 824 (1952) and the eases discussed therein. In addition to the question of whether the work performed is a part of the trade, business or occupation of the person sought to be held liable for compensation, another complicating factor has been the issue of the hazardous versus non-hazardous nature of the employer’s business. These problems were recently noted by Professor Wex S. Malone writing in 33 Louisiana Law Review 284 at page 287. His observations were as follows:

For more than a quarter of a century the Louisiana supreme court has adhered to the position that the proprietor of a non-hazardous business does not subject himself to compensation liability by reason of the fact that he directs an employee to repair or otherwise alter the premises upon which the business is conducted. The commonly announced reason for this exclusion is that repair and alteration are not parts of the trade and/or business of the employer. It follows that repairs on premises held by the employer for rental purposes or as security for loans to customers do not constitute work covered by the statute, and this is true even in face of the fact that repair operations of this kind are clearly of a hazardous character. In striking contrast is repair on improvement work done on structures owned and operated by the proprietor who is engaged in a business that in some way can be characterized independently as hazardous. Thus, fortunate indeed is the handyman who repairs his employer’s motion picture theater, which houses an electric projector, or his cattle yard or his undertaking parlor (businesses that use motor trucks or motor propelled hearses), for he shall have compensation if injured, while the repair man who meets with an accident while doing work on premises maintained for rental by a landlord is not so fortunate, and must pay his own accident costs because the renting of property is not a hazardous occupation. This strange position was reaffirmed last year in Doss v. American Ventures, Inc. The disastrous effect for the worker, however, was avoided by excluding the facts of the controversy from the proposition announced above. The defendant had been the owner of rental premises which had been virtually destroyed by Hurricane Betsy. He had undertaken to rebuild the structure on his own account, using only specialty sub-contractors. One of these was the plaintiff, a painter, who was injured while at work on this job. Relying upon the fact that the rebuilding of the structure was a sizeable enterprise, the court concluded that the owner of the destroyed building had undertaken to engage in construction as a business. This was true even though this single reconstruction was the only enterprise in which he engaged.

In Speed v. Page, supra, the claimant was engaged as a laborer assisting in the work of demolishing and reconstructing Page’s theater building. Page argued that his business was that of operating a movie theater and the services of Speed were not performed in the regular course of the movie theater business. In Speed, the Supreme Court noted that the broad purpose of the workmen’s compensation statute was to readjust the social obligations existing between employees and employers and decided in favor of compensation coverage. It stated its conclusions as follows, 62 So.2d at pages 827 — 828:

Clearly, the cost of the maintenance of the theater building and equipment, in-eluding its repairs, is an operating or production cost of Page’s business or occupation. The fact that the theater ceased its operations temporarily for repairs that required the employment of additional labor does not, in our opinion, alter the basic fact that this forms an element of the cost of the operation of the theater that will be finally borne by the patrons.
It is our conclusion, therefore, that where the operator of an admittedly hazardous business, in the conduct of that business undertakes repair, whether it be of the building housing the same or the equipment therein, rather than have it done under contract, his employees come under the protection of the employers’ liability laws of this State. (Emphasis supplied.)

This court, when the Lushute case was before it, found that a self-employed plumber was engaged in an integral part of a restaurant operated by the defendant when the plumber, Lushute, was engaged to repair an air conditioning unit serving the restaurant. The Supreme Court, reversing, found to the contrary and held that the work being done was not a part of the restaurant owner’s trade, business or occupation. The Supreme Court reasoned that air conditioning for a restaurant was nice but not necessary. Therefore, the injured independent contractor-plumber was not covered by the provisions of the Louisiana Workmens’ Compensation Law. The Supreme Court did not expand on its holding. However, it did preface its holding by reiterating the principle that the question in such cases “is a factual issue which must be determined under the circumstances of each case”. The Louisiana Supreme Court decided Lushute v. Diesi, supra, without any reference to Speed v. Page, supra. Although those two cases reached different results, it may be argued that on the surface, at least, there is no substantial or material difference in the facts of the two cases. An answer to whether this failure to discuss the Speed ease is significant or not, will no doubt have to await further interpretation. At this time, however, I do not regard the authority of Speed v. Page, supra, to have been clearly lessened or placed in question. This review is fortified by the Supreme Court’s recent reference to it in Doss v. American Ventures, Inc., supra.

In Doss v. American Ventures, Inc., decided in 1972, a building owner-lessor was held liable for compensation to an injured painter when the owner-lessor undertook to reconstruct a building destroyed by Hurricane Betsy in 1965. In that case the Louisiana Supreme Court did not pitch its decision on an inquiry as to whether construction or reconstruction of the building was a part of the business of commercial renting. It founded its holding on a finding that, in undertaking to reconstruct its building, the owner-lessor “effectively became its own general contractor”. The court said: “Under these circumstances there can be no doubt but that the corporation (owner-lessor of the building) was engaged in the construction project as a business or trade when the plaintiff was injured . . .”.

The Supreme Court in the Doss case apparently found it necessary to ground its holding on the analysis outlined above because it did not regard leasing of buildings as a hazardous business. However, it observed that the case is different if the employer’s business is hazardous using these words:

Of course, if an employer undertakes repairs on premises used by him to carry on a hazardous business or occupation, an employee injured while engaged in such work is covered by the compensation act because he is engaged in hazardous work in the course of his employer’s hazardous business or occupation. This was the holding in Speed v. Page, 222 La. 529, 62 So.2d 824 (1952).
‡ :}: ífc
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Under the approach of Doss it is proper to hold in the case before us that Odell Lamartiniere became, in the words of Doss, “his own contractor”. As such, the contractual relationship between plaintiff, Bennie Slocum, and defendant was one between Slocum as employee and Lamartiniere ás a builder, not as a grocer. This is a relationship quite distinguishable from that in Lu-shute. The distinction provides a reasonable theoretical basis for a different treatment of a plumber-service person such as Lushute and a painter employed on a new construction project such as in Doss. It would, no doubt, cover the situation of Speed v. Page, supra.

From the foregoing analysis I am of the opinion that plaintiff Slocum can recover in this case only if defendant Lamartiniere can be classified as a builder under the circumstances.

In Doss v. American Ventures, Inc., supra, the Louisiana Supreme Court observed, 261 So.2d at page 618 of the opinion as follows:

Nor can it be said that, as a matter of law, whenever a person constructs or reconstructs his own building to be rented or used commercially he is, or is not, in the construction business. There are some cases in which it has been held that, under the particular circumstances presented, the building owner was not so engaged as a business and, hence, compensation was denied. See Lay v. Pugh, 9 La.App. 183, 119 So. 456 (1928) cert. den.; and Effler v. Edwards, La.App., 142 So.2d 599 (1962) cert. den. Rather, as urged by counsel for all of the litigants herein, whether such employer is so engaged as a business, trade or occupation is a question of fact, depending on the circumstances of each case.

After making the above quoted announcement the Supreme Court proceeded to determine on the record that American Ventures, Inc. “was engaged in the business of construction work when plaintiff (Doss) was employed by a subcontractor to repaint the reconstructed building”. Two factors were mentioned by the Supreme Court supporting its finding. One was that American had the original building constructed by a general contractor but rebuilt it without such services after Hurricane Betsy destroyed the building (i. e. through various separate subcontractors) “and, thus, effectively became its own general contractor”. The other factor mentioned was that American, in seeking reimbursement from its insurer for the cost of rebuilding its structure included ten percent over and above actual costs to cover supervisory work of American’s corporate officers and the cost of liability and workmen’s compensation insurance.

Before further analyzing Doss, it is perhaps proper to consider the appropriateness of the use of the term contractor in this context. While it is true that the Supreme Court employed that term in Doss, it is not necessary and probably it is unproductive to consider when an employer is, or is not, a contractor. The answer to this question is not necessarily dispositive of the issues. Certainly in the vernacular the term contractor usually is accepted to mean someone in building or construction enterprise including specialty contractors, frequently referred to as subcontractors. However, the word contractor is not descriptive of what a builder does or of services performed, for example, by a painting, electrical, plumbing, floor covering or roofing contractor. Singers, actors, and athletes all contract. They contract with movie and television producers and with business entities owning teams engaged in professional sports. However, we do not refer to them as contractors. We refer to them as singers, actors, baseball players and so forth because this is descriptive of their trades, occupations or businesses.

From the foregoing it is clear that in the usual sense a “contractor” is a builder, and building construction is his trade, occupation, or business. He is referred to in the vernacular as a “contractor”, but the word comes only because his legal engagements with clients are covered by contracts, even if oral. I suggest that this distinction is important because it should not matter in a case like Doss, whether an owner-builder in a given case has anyone who can stand with him as a principal as to whom the owner-builder is the contractor. In Doss the court did not refer to American Ventures, Inc. (the owner builder) as someone else’s contractor, but as “its own general contractor”. This is simply another way of saying that the owner assumed the role of builder to reconstruct rather than engaging (contracting with) a third party to do the work for it. American Ventures, Inc. was not, as was suggested in oral argument, the contractor of its insurer. American did claim from the insurer as a part of its reimbursement costs for reconstruction a 10 per cent fee of total actual'cases for work of its corporate officers in supervising the work. If this reimbursement was made, it did not thereby constitute American a contractor for the insurer. A careful reading of the Doss opinion, especially beginning 261 So.2d at headnote four on page 619, reveals that the focus on the word contractor came from contrasting the fact that American, in constructing the building originally, had done so by employing the services of a general contractor, but after the hurricane destruction had elected to rebuild itself “and, thus effectively became its own general contractor.” (Emphasis supplied.) If one is his own general contractor, he is no one else’s. The passage of money, or reaping of profit, is not what counts.

All of the foregoing is simply to demonstrate that to classify a person as a contractor or not is not dispositive of the issue. What Doss v. American Ventures holds is that, if an owner constructs or reconstructs his own building, the circumstances may legally place him in that trade, occupation, or business. As noted above, in Doss the court said: “nor can it be said that, as a matter of law, whenever a person constructs or reconstructs his own building to be rented or used commercially he is, or is not, in the construction business. * * * . whether such employer is so engaged as a business, trade or occupation is a question of fact, depending on the circumstances of each case.”

The foregoing discussion brings us, in my opinion, to the essential question in disposing of the issue between Bennie Slocum and Odell Lamartiniere. Since Odell Lamartini-ere was in fact engaged in building a building on his own, what are the circumstances of the case, referred to in Doss on which the liability or non-liability for compensation will turn? In the quotation of Professor Malone from 33 Louisiana Law Review set forth above, he notes: “Relying upon the fact that the rebuilding of the structure was a sizable enterprise, the court concluded that the owner of the destroyed building had undertaken to engage in construction as a business. This was true even though this single reconstruction was the only enterprise in which he engaged.” According to Malone’s interpretation of Doss, size of the enterprise would be a test but there need be only one undertaking.

Following Professor Malone’s lead we may note that Odell Lamartiniere may be deemed to have been engaged in the building business although his construction of a new grocery store was the only undertaking of this character in which he was, or had ever, engaged. Was the undertaking of sufficient size to constitute him a builder? There seems to be no particular reason to differentiate between American Ventures, Inc. which reconstructed a building to house four or five tenants and Lamartiniere who was building anew for only one — himself. Besides the services of carpenters, including plaintiff, Lamartiniere utilized the services of several specialty contractors, or undertakers. These included a plumber, bricklayer and electrician. Lamartiniere also hired someone to do some small amount of painting. Lamartiniere was generally responsible for the ordering and purchase of supplies and building materials for the job. In my opinion these circumstances indicate a building enterprise of sufficient significance to bring this case under the rule of Doss v. American Ventures, Inc.

For the foregoing reasons, I am of the opinion that the liberal social objectives of the Workmen’s Compensation Law requires the imposition of compensation liability upon defendant in favor of plaintiff. Therefore, I concur in the result reached by the majority in this case.

DOUCET, Judge,

dissenting.

The pivotal issue is whether or not the work performed by plaintiff was part of defendant’s trade, business or occupation within the meaning of LSA-R.S. 23:1035 and LSA-R.S. 23:1061. Although I believe that plaintiff was clearly an independent contractor as defined in LSA-R.S. 23:1021(5), such classification would have no effect on his right to recover workmen’s compensation benefits, since a substantial amount of his work time was spent in manual labor.

As noted by the Louisiana Supreme Court in Lushute v. Diesi, 354 So.2d 179 (La.1978), this issue is a factual one, which must be determined under the circumstances of each ease. The plaintiff in Lushute was a self-employed plumber, electrician and handyman, who ultimately died of injuries he sustained while working on the air conditioning system in the defendant’s restaurant. Holding that repairing of the air conditioning system was not part of the defendant’s restaurant business, the court made the following observations:

“A properly functioning air-conditioning system, although desirable from the viewpoint of customer comfort and satisfaction, is not necessary for the operation of a restaurant. The service rendered by decedent at the time of the accident was not a part of the restaurant business but was merely incidental thereto.”

I find that reasoning equally compelling under the facts of the instant case.

I have no difficulty agreeing that Mr. Lamartiniere was not building the new store as a hobby. However, a finding that his business was in some way enhanced by the use of the new building is an insufficient basis for holding that its construction is part of that business. Mr. Lamartiniere’s retail grocery business has been in existence for thirty-two years. I find nothing in the record to indicate that the new building was necessary for the continued operation of this ongoing business, rather than being merely incidental thereto. Absent such a showing, I feel that it is improper to conclude that the construction of the building was part of the grocery business.

The argument that it was a venture into the construction business is equally unpersuasive. Doss v. American Ventures, Inc., 261 La. 920, 261 So.2d 615 (1972) does not support such a conclusion. In Doss, American Ventures, Inc. was in the business of renting office space in a building which it owned. After the building was demolished by a hurricane, it undertook its reconstruction. Although a general contractor had been employed when the building was originally built, officers of the corporation performed this task when the reconstruction took place. American claimed from its insurer ten per cent of the total actual costs as compensation for these services. Mr. Lamartiniere did not receive such compensation.

Speed v. Page, 222 La. 529, 62 So.2d 824 (1952) does not stand for the proposition that every person employed by the owner of a commercial enterprise is covered by the compensation act. The court in that case was concerned with the situation of employers utilizing their regular employees to make repairs to the building in which they conduct their business, rather than having it done under contract. Mr. Slocum was not a regular employee of Mr. Lamartiniere in the conduct of his grocery business. His work was done pursuant to a contract. Thus, this is a fundamentally different factual situation than that in Speed. It is significant that the court in Lushute v. Diesi, supra, did not mention Speed. Surely, if it could be extended to apply to this case, it would have been equally applicable there.

For these reasons, I respectfully dissent from the judgment awarding workmen’s compensation benefits. I have no objection to the majority’s determination of the compensation rate. However, I do not feel that plaintiff is entitled any benefits under the circumstances of this case.

      . LSA-R.S. 23:1044
      “A person rendering service for another in any trades, businesses or occupations covered by this Chapter is presumed to be an employee under this Chapter.”
      !jC Sf{ Sf! Sfc

      . LSA-R.S. 23:1021(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.”

      .The opinion states that this is a factual issue but reversed a contrary factual determination by the trier of fact, which had been affirmed by this court. The nature of the manifest error is not specified.

      . With reference to the problem in general, see W. Malone, Louisiana Workmen’s Compensation Law & Practice, § 102 (Text 1951) and Pocket Part (1964).

       W. Malone, Louisiana Workmen’s Compensation Law & Practice § 102 (1951).

         Speed v. Page, 222 La. 529, 62 So.2d 824 (1952).

        Gallien v. Judge, 28 So.2d 101 (La.App. 1st Cir. 1946); Hecker v. Betz, 172 So. 816 (La. App.Orl.Cir. 1937).

       261 La. 920, 261 So.2d 615 (1972).

        Cf. Locken v. Department of Labor & Indus., 58 Wash.2d 534, 364 P.2d 232 (1961) (single land clearing operation for few days duration constitutes a business); In re Karos, 34 Wyo. 357, 243 P. 593 (1926) (professional plasterer undertook to transport a house for another on a single occasion, held engaged in business of moving).

      . For an historical summary of cases developing the standard for whether a given activity performed by an independent contractor is a part of a principal’s trade, occupation or business, see Cole v. Chevron Chemical Company-Oronite Division, 5th Cir. 1973, 477 F.2d 361.

      . Our brothers of the Second Circuit, as recently as 1977, followed and applied the Speed case in Thomas v. Holland, 345 So.2d 1000 (La.App. 2nd Cir. 1977).

       The Court of Appeal erred in holding that the Speed case supported its conclusion that all employees making repairs on all business establishments would be covered by compensation simply because the repairs were in furtherance of the business. It failed to note that in the Speed case, the employer’s occupation was hazardous.


author: WATSON, Judge.

text:
    ADOPTION OF Karl David EDWARDS, Jr.

    No. 6863.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1979.

      McHale, Bufkin & Dees, Michael K. Dees, Lake Charles, for plaintiff-appellant.
    John Van Norman, III, Lake Charles, Harold L. Lawson, Columbus, Ohio, for defendant-appellee.
    Before WATSON, SWIFT and STOKER, JJ.

      . LSA-R.S. 9:424 provides that in specific terms that:
      “The petition shall be styled: ‘In re _, applying for adoption.’ ” The record in the trial court was erroneously captioned as “Adoption of Karl David Edwards, Jr.” and we will use that style to avoid confusion. The petition was filed correctly titled as was the judgment signed by the trial court. .

   WATSON, Judge.

This appeal presents the question of whether the trial court erred in rejecting a petition for adoption of Karl David Edwards, Jr., eight years of age, by his father and stepmother.

Petitioner, Karl David Edwards, the legitimate father, was married on November 20, 1976, to the other petitioner, Sharon L. O’Bryan Priestas Edwards. The Edwards couple has resided in Louisiana since February of 1977. The child’s mother is Martha Grace Bryan Baer, now a resident of California. Mr. Edwards and Ms. Baer were divorced on June 5,1975, while living in the State of Ohio, and Ms. Baer was awarded custody of the child. A subsequent order, effective May 24, 1976, gave custody to Mr. Edwards and granted Ms. Baer the right of reasonable visitation. (TR. 24). The order of the Ohio court giving Mr. Edwards custody did not require Ms. Baer to contribute to the child’s support. Both Mr. Edwards and Ms. Baer were represented by counsel at the hearing on the change of custody. The referee’s report resulting from that hearing states that the child’s welfare was endangered by his mother’s custody, because she was neglectful, an itinerant alcoholic, and married to a man who mentally and physically abused the child. The report indicates that Mr. Edwards carried the burden of showing: (1) a change in circumstances; (2) a detrimental environment; and (3) that the interests of the child would be best served by a change of custody.

“A single person over the age of twenty-one years, or a married couple jointly, may petition to adopt a child. When one joint petitioner dies, proceedings may continue as though the survivor was a single original petitioner. If one of the spouses is the legitimate parent of the child to be adopted, the other spouse may adopt the child with the written consent of the legitimate parent who need not join in the petition nor be served with a copy thereof. A judgment of adoption awarded to one spouse shall not alter the relationship of the child to the spouse who is the legitimate parent.”

Mr. Edwards’ present wife now seeks to adopt the child. While the petition contemplates adoption by both Mr. and Mrs. Edwards, it is actually the wife who is the party at interest since Edwards is a legitimate parent with custody.

An attorney at law was appointed as curator ad hoc for Ms. Baer; he informed her of the pendency of the proceedings and filed an answer opposing the adoption. An Ohio attorney obtained a continuance for Ms. Baer and filed an opposition, but she was unrepresented at the hearing except by the curator. Various correspondence was filed on her behalf, including a letter from the State of Louisiana Division of Family Services of the Louisiana Health and Human Resources Administration, which advised the trial court that Ms. Baer opposed the adoption but could not afford to attend the hearing.

The testimony of Mr. and Mrs. Edwards was that Ms. Baer had not sent any contributions to the support of her son for a period of one year. Exactly one year prior to the hearing, Ms. Baer sent the child a birthday card and a ten dollar bill.

Kathy Bice, daughter of Ms. Baer, testified that she and her grandmother both knew that the child had been residing with his father and stepmother in Lake Charles. Although Kathy Bice had not advised her mother of that fact, because of limited contacts with her, she said that her mother had lived with the grandmother at times and undoubtedly had knowledge of her son’s whereabouts.

Although the trial court refused to allow introduction of the confidential report of the Department of Public Welfare into evidence, the court stated that the report was good and favorable to Mr. and Mrs. Edwards and in no way derogatory or a factor in denying the decree of adoption.

The trial court stated that section (3) of LSA-R.S. 9:422.1, in its opinion, only contemplates a father’s failure to send child support and does not apply to mothers. The trial court further reasoned that the sole purpose of allowing adoption despite the opposition of a nonresident parent is the inability of a resident parent to obtain an enforceable judgment of support against a nonresident parent. Since both parties here were residents of Ohio when the change of custody was ordered, Ms. Baer was subject to the jurisdiction of the Ohio court and a judgment ordering her to assist in the child’s support could have been ordered. In the absence of such a judgment, the trial court concluded that the intention of section (3) of the statute was not met.

Petitioners have appealed from the trial court’s refusal to approve the adoption.

Counsel for Mr. and Mrs. Edwards contends that, if LSA-R.S. 9:422.1 is interpreted to apply only to nonsupport by fathers, it violates Art. 1, § 3, of the La.Const. of 1974, which prohibits arbitrary and unreasonable discrimination because of sex. See Craig v. Craig, 359 So.2d 1119 (La., 1978). We agree that nothing in the language of the statute indicates a sexist interpretation is intended and such an interpretation would be unconstitutional. An interpolation of “husband” for “other legitimate parent” in section (3) is error.

The trial court was not entitled to ignore the clear provisions of the statute in order to serve what was conceived to be the statutory intention. Only when a statute is ambiguous and subject to two reasonable interpretations can the legislative intention be considered. LSA-C.C. art. 13; LSA-R.S. 1:4.

LSA-R.S. 9:422.1, quoted supra, states that when the spouse of the petitioner, here Mr. Edwards, is a legitimate parent of the child, then the consent of the other legitimate parent is unnecessary if either the first and second, or first and third conditions exist. The first condition (that the spouse have legal custody) is met in that Mr. Edwards was granted custody of the child by a court of competent jurisdiction. The second condition (failure to support after being ordered to do so by a court) is not met because Ms. Baer has never been placed under a court ordered obligation or support. However, the third condition (a nonresident’s failure to support for a period of one year) is met. Ms. Baer is a nonresident of the state. Mr. and Mrs. Edwards testified that she had not contributed to the child’s support for a period of one year. Thus, the first and third requirements have been met, and the adoption should have been granted in the absence of extenuating circumstances or “just cause”, a jurisprudential addendum to the statute. In re LaFitte, 247 La. 856, 174 So.2d 804 (1965).

It is generally agreed that the statute must be strictly construed against adoption in order that the legitimate parent’s rights may be protected. See Steed v. McKenzie, 344 So.2d 689 (La.App. 1 Cir. 1977); Roy v. Speer, 249 La. 1034, 192 So.2d 554 (1966); In re Ackenhausen, 244 La. 730, 154 So.2d 380 (1963); and the comment at 29 La. Law Review 178.

The case of In re Adoption of Schieman, 204 So.2d 433 (La.App. 4 Cir. 1967) considered the effect of section (3) on a mother failing to furnish support and stated:

“We can conceive of situations in which the failure of a mother to provide monetary support might bring her within the provisions of LSA-R.S. 9:422.1 subsection (3) but this is not such a case.” 204 So.2d 435.

Schieman did not allow the adoption because the mother, with custody of one child, was receiving support payments from the father for that child and was thereby relieved of the obligation of contributing to the support of two other children in the custody of their father.

Other cases state that a spouse is relieved of the obligation of support under certain circumstances. See Steed, supra. A court order that specifically waives the obligation is sufficient. In re Spraggins, 234 So.2d 462 (La.App. 1 Cir. 1970). Here, however, no just cause or extenuating circumstances have been shown.

Even where the statutory requirements are met and the nonsupporting parent has forfeited the right of consent, the adoption can be denied in order to serve the best interests of the child. Where, for example, the parent proposing to adopt has been married for a brief period, there is no abuse of discretion in denying the adoption. Domingue v. Thibodeaux, 200 So.2d 784 (La. App. 3 Cir. 1967). In the instant case, the trial court did not decide against the adoption on the basis of the child’s best interests. The record establishes that the proposed adoption would best serve the welfare of the minor. In re Merrill, 246 So.2d 207 (La.App. 1 Cir. 1971). The trial court erred in refusing to approve the adoption. For the foregoing reasons, the judgment of the trial court herein is reversed.

It is ordered that there be judgment herein in favor of petitioner, Sharon L. O’Bryan Priestas Edwards, dispensing with the interlocutory decree herein and decreeing the adoption to her of Karl David Edwards, Jr.

It is further ordered that the Clerk of the Fourteenth Judicial District Court shall forward a certified copy of this final decree to the Director of the Department of Health and Human Resources.

It is further ordered that the Clerk of the Fourteenth Judicial District Court shall forward, on a form supplied by the office of family services of the Department of Health and Human Resources, his certificate of this final decree to the state registrar.

The fee of the curator ad hoc is fixed at the sum of $150 taxed as costs.

Costs are taxed to petitioner-appellants.

REVERSED AND RENDERED.

      . LSA-R.S. 9:422

      . LSA-R.S. 9:422.1
      “If the spouse of the petitioner is the legitimate parent of the child or if the petitioner is the grandparent or grandparents of the child, then the consent of the other legitimate parent is not necessary if the first and second or the first and third conditions exist:
      (1)The spouse of the petitioner or the grandparent or grandparents or the mother or the father have been granted custody of the child by a court of competent jurisdiction and
      (2) The other legitimate parent has refused or failed to comply with a court order of support for a period of one year or
      (3) The other legitimate parent is a nonresident of this state and has failed to support the child for a period of one year after judgment awarding custody to the mother or father or grandparent or grandparents.”

      . Dicta, in some of the cases, supports the trial court’s interpretation of the statutory intention. See In re Kennedy, 357 So.2d 905 (La.App. 2 Cir. 1978); In re Stanford, 313 So.2d 849 (La. App. 2 Cir. 1975); and 23 La. Law Review 46.


author: GUIDRY, Judge.

text:
    Dennis EHRHARDT, Individually and for and on Behalf of his minor daughters, Deanna and Cindy Ehrhardt, and Shirley Ehrhardt, Plalntiffs-Appellees, v. Robert L. CUMMINS, Sr., Individually and as Administrator of the Estate of his minor son, Shawn T. Cummins, and Government Employees Insurance Company (GEICO), Defendants-Appellants.
    No. 6868.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1979.
    Writ Refused April 23, 1979.

      Voorhies & Labbe, William M. Bass, Lafayette, for defendants-appellants.
    J. Minos Simon, Lafayette, for plaintiffs-appellees.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   GUIDRY, Judge.

Plaintiffs were involved in a vehicular accident on August 15, 1976 in the city of Lafayette. Mr. Dennis Ehrhardt and his wife, Shirley, and their two minor daughters, Cindy and Deanna, were riding in their family car when it was struck from the rear by an automobile owned by Robert Cum-mins and operated by his minor son, Shawn Cummins. At the time of the accident, defendant’s vehicle was insured by Government Employees Insurance Company (GEI-CO). Suit was instituted by plaintiffs against Robert Cummins individually and as administrator of the estate of his minor son and GEICO to recover damages allegedly suffered by plaintiffs as a result of the accident. Defendants stipulated liability and trial was held solely for the purpose of fixing the amount of plaintiffs’ damages. After hearing lay and medical testimony, the trial court awarded Mrs. Ehrhardt the sum of $15,500.00 for past and future pain and suffering resulting from “cervical strain of a mild or moderate nature” and an “aggravation to the low back problem which she had prior to the accident”. The trial court also awarded Dennis Ehrhardt, on behalf of his minor daughter, Deanna, the sum of $750.00 for several “postconcussion headaches” which it found she had suffered as a result of the accident. In addition the court awarded Dennis Eh-rhardt special damages in the amount of $2711.04. From this judgment defendants have appealed. The assignments of error urged by appellants are as follows:

I. THE AWARD OF $750.00 TO DENNIS EHRHARDT ON BEHALF OF DEANNA EHRHARDT WAS EXCESSIVE.

II. THE AWARD OF $15,500.00 TO MRS. SHIRLEY EHRHARDT WAS EXCESSIVE.

III. THE SPECIAL DAMAGES AWARDED FOR “MAID SERVICES” EXCEEDED THE AMOUNT PRAYED FOR BY PLAINTIFFS, AND SHOULD THEREFORE BE REDUCED.

Although LSA-Const. Article 5 Sec. 10(B) imposes upon the appellate courts the duty of reviewing damage awards, the character of our review function in this area is limited by LSA-C.C. Article 1934(3) , which gives the trial court great discretion in fixing such awards. In the often quoted case of Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977) the Supreme Court stated:

“We do reemphasize, however, that before a Court of Appeal can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making its award. Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351, supra; Bitoun v. Landry, 302 So.2d 278, supra; Fox v. State Farm Mutual Automobile Ins. Co., 288 So.2d 42, supra; Walker v. Champion, 288 So.2d 44, supra. Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court. Bitoun v. Landry, supra; Spillers v. Montgomery Ward & Company, Inc., 294 So.2d 803, supra. It is never appropriate for a Court of Appeal, having found that the trial court has abused its discretion, simply to decide what it considers an appropriate award on the basis of the evidence.” at pg. 335.

It is with consideration of the above principles applicable to appellate review of quantum awards that we have reviewed the record to determine if the trial court’s much discretion was abused in the instant case.

I. WAS THE AWARD TO DENNIS EH-RHARDT ON BEHALF OF DEANNA EHRHARDT EXCESSIVE?

The accident in question took place at approximately 11:45 a. m. on a Sunday. The record reveals that immediately after the accident, Cindy and Deanna, who were seated in the back seat of plaintiff’s vehicle, were taken directly home and were not examined by a physician. That same afternoon Deanna went swimming. On August 28th, some twelve days after the accident, Deanna was taken to the emergency room of Lafayette General Hospital complaining of having occasional headaches. Dr. James Rivet, a neurosurgeon, examined Deanna on that date in the emergency room. Dr. Rivet testified at trial that he took x-rays of Deanna which he found to be normal. He stated that he also did a detailed neurological examination on her, which he found to be completely normal. He testified that Deanna’s headaches “ . . . were probably secondary to a very mild concussion— cerebral concussion”, which he termed incident to a “light blow to the head”. Deanna again saw Dr. Rivet on September 16, 1976, at which time she told him that she had only had one minor headache since her previous examination on August 28th. Dr. Rivet nevertheless performed an electroencephalogram on her, the results of which were normal. He saw her again on June 27, 1977, at which time she complained of headaches when she was out in the heat and after participating in gymnastics. Dr. Rivet testified that he found it to be normal for a ten year old child to experience headaches after stressful activities, and that he was unable to associate this recurrence of headaches with the accident. On October 24, 1977, Deanna made her last visit to Dr. Rivet, at which time he was informed that she no longer suffered from headaches. It appears from the record that Deanna saw Dr. Rivet four times relative to complaints following the accident.

At trial, Deanna testified that along with headaches, she suffered from dizziness which made her unable to stand or walk. Her mother testified that Deanna’s dizziness and headaches caused her to keep Deanna out of gymnastics for a year. Dr. Rivet testified that his records on Deanna included no complaint of dizziness although he did state that dizziness was often associated with postconcussion headaches. The record does not reflect that Mrs. Ehrhardt’s decision to keep Deanna out of school gymnastics was made pursuant to doctors’ instructions.

The record reflects that Deanna saw no doctor other than Dr. Rivet concerning her complaints following the accident. In sum, Dr. Rivet’s testimony reflects that from the date of the accident until August 28th, Deanna suffered from an occasional headache, and that thereafter she only suffered one headache which he could reasonably associate with the accident. After his initial examination, he told Deanna to take it easy, but he apparently put no restrictions on her activities. Considering both the lay and medical testimony and applying the principles set forth in Coco, supra, we are unable to categorically conclude that the award exceeds the highest amount which was reasonably within the discretion of the trial court to award. We therefore will not disturb this award.

II. WAS SHIRLEY EHRHARDT’S AWARD EXCESSIVE?

The record reflects that prior to the accident, Mrs. Ehrhardt suffered with a degenerative back condition. Mrs. Ehrhardt’s back problem began sometime in 1972, as the result of demonstrating exercises to a kindergarten class she was teaching. For this problem she had been treated by several local physicians but at the time of accident she was being treated by physicians in Houston, and had, prior to the accident, elected to undergo back surgery in that city. She was scheduled to have surgery performed on her back in December, 1976. She testified that at the time of the accident, she was concerned that she might have reinjured her back, and she was therefore immediately taken to the emergency room of Lafayette General Hospital. At the emergency room, Mrs. Ehrhardt was examined by Dr. Stephan Goldware. Dr. Goldware testified that at the time of his examination, Mrs. Ehrhardt told him she had a seven year history of low back pain which had worsened in the three previous years. She informed Dr. Goldware that she had scheduled back surgery for December, 1976 in Houston. The results of Dr. Gold-ware’s examination were as follows:

“(Her) Blood pressure and pulse were normal. She was complaining of some pain in her head and the left side of her neck and in her low back. On examination there were no focal motor sensory or reflex deficits. The tympanic membranes were normal. Fundi, optic fundi were normal. She was reluctant to bend and touch her toes. Straight leg raising test was negative. She had a full range of motion of her neck and there was no unusual tenderness. . . .”

Dr. Goldware further testified that following his examination of Mrs. Ehrhardt, he released her. He next saw the plaintiff on September 7, 1976, at which time she complained of having some pain in her neck, left shoulder and interscapula area, which did not radiate into her arms. Dr. Gold-ware found that her gait, strength sensation and reflexes were all normal at that time. He further testified that a Spurling maneuver was performed on her, consisting of the twisting of her head and the placing of pressure on the top of her head, which she told him caused her some pain in her neck, but none in her arms. The results of the test were negative. Mrs. Ehrhardt’s last visit with Dr. Goldware was on September 24, 1976, at which time she told him that her neck still hurt “some”. Another Spurling maneuver was performed on her, the results of which were again negative. The doctor testified that his examination at that time revealed normal strength and reflexes. On September 24, 1976, Dr. Gold-ware released Mrs. Ehrhardt from his care, and placed no limitations on her activities.

Dr. Goldware did not evaluate the plaintiff’s back problem, either before or after the accident, nor did he assess or diagnose the exact source of Mrs. Ehrhardt’s complaints of neck pain, except to state that during each of his three examinations, he found no serious physical injury. His testimony related only to three examinations of the plaintiff, during which time she complained of neck, shoulder and low back pain which could not be explained through testing, but which had subsided to such an extent by September 24, 1976 that he discharged her and recommended that she return to normal activity.

While Mrs. Ehrhardt was seeing Dr. Goldware, she was also seeing her family physician, Dr. James Fournet. Dr. Fournet testified that he first saw Mrs. Ehrhardt regarding the accident on August 16th, at which time she told him that she had been involved in an automobile accident the preceding Sunday, and that she was experiencing neck and low back pain. Dr. Fournet testified that at the time that Mrs. Eh-rhardt first came to see him following the accident, he was aware that she had a preexisting back problem which was being treated by medical specialists in Houston. However, he testified that his knowledge of her condition was based only upon Mrs. Ehrhardt’s own statement and some x-rays that he found in her clinical records which had been taken in May of 1974 and January of 1976. The x-rays, he stated, revealed a moderately advanced degenerative change in the lumbrosacral interspace. However, he stated that at no time prior to the accident had he personally examined the plaintiff’s back. Although he was aware that she had a back problem predating the accident, he nevertheless chose not to take x-rays of her low back when she came to see him after the accident. With regard to the condition of plaintiff’s back following the accident, he stated:

“I think she had a problem prior to the accident and I think she maintained her problem subsequent to the accident. I think in addition to, you know, the existing condition, that she had probably an acute flareup of her symptomatology.”

Dr. Fournet’s testimony is otherwise void of any other assessment of the effect of the accident on the plaintiff’s preexisting condition. He stated that her recuperative period following the accident was probably longer because of the preexisting problem, but he also stated that the trauma did not cause any increase in the overall stability of her back. A fair assessment of his testimony would be that following the accident, the pain which the plaintiff was experiencing because of her longstanding back problem “flared up”, and caused her to experience a longer recuperative period than she would have experienced if she had not had the preexisting condition. However,, nowhere in his testimony did he make a long term prognosis of the plaintiff’s back problem, or offer any indication that the degenerative process of the plaintiff’s preexisting condition was at all accelerated by the accident. More notably, plaintiff did not present the testimony of the doctors in Houston who had been treating her back prior to the accident and who continued to have primary responsibility for treating her back after the accident. Clearly, these doctors were in the best position to evaluate Mrs. Ehrhardt’s preexisting condition, and to assess the effect, if any, of the accident on such condition. Dr. Fournet saw Mrs. Eh-rhardt a total of six times from the date of the accident until April of 1977. He did not see Mrs. Ehrhardt following her back surgery in May of 1977. Therefore, no medical evidence was offered to assess the state of Mrs. Ehrhardt’s back after April of 1977 or to indicate that she will experience any future back or neck pain as a result of the accident. It is apparent from the record that the only doctors who had particular knowledge of Mrs. Ehrhardt’s back' condition, from long before the accident until after her back surgery in May of 1977, were the doctors she was seeing in Houston. However, plaintiffs failed to produce any evidence from these doctors to support their claims for damages for future pain and suffering, or for residual aggravation of plaintiff’s preexisting condition.

Dr. Fournet testified that his primary concern following the accident was Mrs. Ehrhardt’s complaints of cervical pain. He stated that x-rays taken shortly after the accident revealed only a slight reversal of the lateral lordotic curve. He testified that by October, 2, 1976, the muscle spasm in the plaintiff’s neck had already begun to subside, and that within six months she had full range of motion in her neck. Although he made no precise long term diagnosis of the plaintiff’s neck problem, he did state that her cervical strain should have resolved itself within twelve months or eighteen months at most. When asked by plaintiff’s counsel to explain the basis for plaintiff’s complaints of continuing neck pain following activities such as jumping up and down, Dr. Fournet testified that he would “find it hard to believe” that an individual with her symptomatology would be continuing to have difficulty. He stated that he did not examine Mrs. Ehrhardt relative to her accident-related complaints after April, 1977, and that he examined her a total of six times in the course of his treatment.

Examining the medical evidence in a light most favorable to Mrs. Ehrhardt, we find nothing to indicate that she has suffered any residual impairment to her neck or back as a result of the accident. She had a preexisting degenerative back condition, for which she had elected to undergo surgery prior to the accident. Back surgery was performed on the plaintiff in May of 1977. The record is void of any evaluation of the effect of the accident on her preexisting condition other than Dr. Fournet’s testimony indicating that the accident caused a temporary flareup of pain. The doctors who had been long treating the plaintiff’s back problem, and who continued after the accident to treat her, were never called to testify, although they had peculiar knowledge concerning the nature and extent of her back condition. Insofar as Mrs. Ehrhardt’s neck injury is concerned, her family physician diagnosed her problem as a mild cervical strain, which should have resolved within eighteen months at most. The plaintiff herself testified that her back surgery had been initially postponed from December of 1976 because of the pain she was having in her neck. She stated that her doctors in Houston did not want to perform surgery until her neck was “in good enough condition” to proceed. The fact that she did undergo back surgery in May of 1977 clearly indicates that neither she nor her doctors in Houston were overly concerned about her neck problem at that time to again postpone her back surgery. Although Mrs. Ehrhardt testified that her neck and back pain continues to the present, and that such pain has caused her to restrict her activities to some extent, she also testified that one week after the accident when the new school year began, she reported to work in time to start the semester. She testified that she remained on the job throughout the 1976-1977 school year.

We find Mrs. Ehrhardt’s complaints of continuing neck and back pain to be greatly disproportionate with and unsupported by the medical testimony presented at trial.

Our consideration of the totality of the evidence clearly reveals that the award of $15,500.00 to Mrs. Ehrhardt exceeds the highest amount reasonably within the much discretion afforded the trial court, and represents a manifest abuse of such discretion. Under the principles set forth in Coco, supra, we are able to reduce this award only to the highest point which was reasonably within the discretion afforded the trier of fact. We therefore reduce Mrs. Ehrhardt’s award from $15,500.00 to $10,000.00, which is at the very highest point reasonably within the much discretion afforded the trial court under the circumstances of this ease.

III. SHOULD THE SPECIAL DAMAGES AWARDED FOR “MAID SERVICES” EXCEEDING THE AMOUNT PRAYED FOR BY PLAINTIFFS BE REDUCED?

In their original petition, plaintiffs prayed for special damages as follows:

“Petitioner Dennis Ehrhardt, as head and master of the community of acquets and gains existing between himseif and petitioner Shirley Ehrhardt, and individually and for and on behalf of his minor daughters, Deanna and Cindy Ehrhardt, alleges that as a result of the aforementioned injuries to himself, Shirley, Deanna and Cindy Ehrhardt and the care and treatment therefor he incurred the following expenses, to-wit:
(A) Dennis Ehrhardt
Dr. Reese $ 8.00
(B) Shirley Ehrhardt
Dr. Fournet 81.00
Travel to Dr. Fournet 16.00
Dr. Ehini 13.00
X-rays 38.00
Lafayette General Hospital 99.00
Dr. Eppright 10.00
Travel & Meals to Houston (Dr. Eppright) 121.00
Pharmaceuticals 110.00
Physical Therapy 184.00
Travel to Physical Therapy , 100.00
Main (sic) Service 1032.00
Secretarial Services for Shirley Ehrhardt 30.00
(C) For and On Behalf of his Minor
Daughter, Deanna Ehrhardt
Lafayette General Hospital 71.00
Electroencephalogram 50.00
Dr. Rivet 70.00
Dr. Reese 8.00
X-rays 25.00
Travel to physicians and hospitals 8.40
(D) For and On Behalf of his Minor
Daughter, Cindy Ehrhardt
X-rays, Lafayette General Hospital 25.00
TOTAL $2669.40”

At trial, plaintiffs sought to introduce evidence that they had expended $2,361.50 for maid services, and defendants objected to the admission of such evidence on the grounds that the pleadings specified maid expenses in the amount of $1,032.00, and that admission of such evidence would constitute an enlargement of the pleadings. The trial court overruled defendants’ objection, allowed the evidence to be admitted, and awarded plaintiffs the sum of $1248.00 for maid services.

The general rule is that a litigant may not recover an amount greater than that for which he prayed in his petition. Friedman Iron and Supply Co. v. J. B. Beaird Co., Inc., 222 La. 627, 63 So.2d 144 (1952); Alumaglass Corp. v. Succession of Kendrick, 303 So.2d 911 (La.App. 1st Cir. 1974); writs refused February 7, 1975; Watson v. Morrison, 340 So.2d 588 (La.App. 1st Cir. 1976), writs refused February 14, 1977. The only exception to this rule of which we are cognizant involves elements of special damages in situations when otherwise inadmissible evidence is admitted without objection and the pleadings are enlarged to that extent. LSA-C.C.P. Article 1154; Sterkx v. Gravity Drainage District No. 1 of Rapides Parish, 214 So.2d 552, (La.App. 3rd Cir. 1968), writs refused November 15, 1968. Defendants made timely objection to the. admission of evidence of expenditures for maid services which exceeded those expressly itemized by plaintiff’s petition. As we find no merit to plaintiff’s contention that maid services are “quasi medical services” which should be considered future medical expenses, we find that the trial court committed manifest error in failing to sustain defendants’ objection. As plaintiffs’ pleadings were not expanded through the admission of evidence of additional maid services, their relief is confined to that which they prayed for, and we reduce the award to plaintiffs for maid services from $1248.00 to $1,032.00.

For the above and foregoing reasons, the judgment of the trial court is amended so as to reduce the award to Shirley Ehrhardt from $15,500.00 to $10,000.00, and the award to plaintiffs for maid services from $1,248.00 to $1,032.00. In all other respects, the judgment of the trial court is affirmed. Costs of this appeal are to be paid by plaintiffs-appellees.

AMENDED AND AFFIRMED.

      . LSA-C.C. Art. 1934(3) provides in part:
      “In the assessment of damages under this rule, as well as in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury, while in other cases they have none, but are bound to give such damages under the above rules as will fully indemnify the creditor, whenever the contract has been broken by the fault, negligence, fraud or bad faith of the debtor.”


author: DOMENGEAUX, Judge.

text:
    TRI-STATE INSURANCE COMPANY et al., Plaintiffs-Appellees, v. Brenda Joyce Taylor MASON et al., Donna Wheeler Mason, Defendant-Appellant.
    No. 6881.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1979.

      Knoll & Knoll by Jerald E. Knoll, Tucker L. Melancon, Marksville, for defendant-appellant.
    Garrett & Ryland, Donald M. Garrett, Alexandria, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   DOMENGEAUX, Judge.

This suit commenced by way of a concur-sus proceeding filed by John Vaccaro & Associates, and Themus Jeansonne, Jr., a subcontractor for Vaccaro, hereinafter referred to jointly as the employer, and their workmen’s compensation insurer, Tri-State Insurance Company, in order to determine how to divide workmen’s compensation benefits among the widow and dependents of an employee, Johnny Mason, who was killed when a load of logs shifted and struck him on October 4, 1977, while working in the course and scope of his employment.

Decedent left two sets of dependents. One set consists of three children born during his marriage with his first wife, Donna Wheeler Mason, from whom he was divorced at the time of the accident. The second set consists of two children of the second wife, Brenda Joyce Taylor Mason, born to her during a previous marriage, who were ■living with their mother and decedent at the matrimonial domicile when the fatal accident occurred. The second wife is also the surviving widow of the decedent.

The insurer invoked the concursus in order to protect itself from multiple liability in the matter, and deposited the sum of $95.75 per week, the amount of benefits which it determined were due, into the registry of the Court.

Made defendants in the concursus proceedings were the first wife, as the natural tutrix of her minor children, and the surviving widow, individually and in her capacity as the natural tutrix of her minor children. Both defendants filed answers into the proceedings, alleging that the sum deposited by the insurer was inadequate, and both sought penalties and attorney’s fees.

Prior to trial, the percentage of the compensation benefits due each of the claimants was agreed to out of Court by the attorneys. The case went to trial only on the issue involving the correctness of the dollar amount of benefits deposited by the insurer and on the issue of penalties and attorney’s fees.

After a hearing, the trial judge determined that the decedent was paid wages at the rate of $40.00 per day. Using La.R.S. 23:1021(7)(d), he found that decedent’s average weekly wage was $164.92. He took 65% of this amount, or $107.20, and divided it as agreed to between the parties, as follows: 32.5%, or $34.87 weekly, to the surviving widow, with the remainder divided among the children and stepchildren, or $14.47 each weekly. The trial judge specifically denied penalties and attorney’s fees. Judgment was rendered accordingly.

From this judgment, Donna Wheeler Mason, the first wife, appeals in her capacity as the natural tutrix of her minor children, contending that the trial judge should have applied La.R.S. 23:1021(7)(a), instead of La. R.S. 23:1021(7)(d), in the computation of the average weekly wage, and contending that the trial judge should have awarded penalties and attorney’s fees. The surviving widow, Brenda Joyce Taylor Mason, did not appeal. The employer and insurer did not appeal, nor did they answer the appeal.

La.R.S. 23:1021(7) defines the term “wages” as the average weekly wage at the time of the accident, and sets forth various methods by which the average weekly wage should be computed. It provides:

“ ‘Wages’ means average weekly wage at the time of the accident. The average weekly wage shall be determined as follows: (a) If the employee is paid on an hourly basis, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the injury or forty hours, whichever is greater; (b) If the employee is paid on a monthly basis, his monthly salary divided by four; (c) If the employee is employed at an annual salary, his annual salary divided by fifty-two; and (d) If the employee is employed on a unit, piecework, commission, or other basis, his gross earnings from the employer for the twenty-six week period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said twenty-six week period and multiplied by four; provided, however, that if such an employee has worked for the employer for less than a twenty-six week period immediately preceding the accident, his gross earnings from the employer for the period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said period and multiplied by four.”

It is appellant’s position that the evidence in the record indicates that decedent was paid an hourly, as opposed to daily, wage, and that, therefore, sub-part (a) of the statute should have been used in the calculation of benefits.

The evidence in the record consisted of the employer’s payroll records, the employer’s quarterly reports of taxable wages under the Federal Insurance Contribution Act, the employer’s quarterly report to the Louisiana Department of Employment Security, the cancelled paychecks of decedent, and the testimony of the sub-contractor-employer, Themus Jeansonne, Jr.

Jeansonne clearly stated at trial that the decedent was paid on a daily basis at a rate of $40.00 per day. He also explained that this was based on an eight hour work day. Jeansonne stated that occasionally weather conditions would not permit work for the full day and that, in these instances, he would pay for either a half a day or a whole day, depending upon the circumstances. On those occasions when decedent would stay on the job longer than the other workers, Jeansonne stated that he paid decedent extra.

Jeansonne’s payroll records listed decedent’s rate of pay at $40.00 per day. The quantum of work decedent performed was recorded in either whole days or increments of quarter days. There is no record of the number of hours decedent actually worked, nor any indication that an hourly record was kept.

We feel that, on the basis of the above facts, the trial judge was not in error by finding that decedent was paid on a daily, instead of an hourly, basis. The complete absence of any record listing the number of hours the employee worked, coupled with the fact that the employer listed decedent’s rate of pay at $40.00 per day on the payroll records, makes this conclusion obvious.

The fact that increments of quarter days were sometimes used makes this employee no less a daily wage rate worker than an employee whose salary is computed in increments of quarter hours is an hourly wage rate worker. There is, of course, a limit on how small the increments of a daily wage rate employee can be. For example, an employee who lists a worker at $40.00 per day for an eight hour day, and then computes the worker’s salary in increments of eights of a day, which would actually be one hour increments, would have a difficult time in arguing that the worker’s rate of pay was daily and not hourly. However, this is not the situation presented in this case. Thus, we conclude that the trial judge was correct in applying sub-part (d) instead of sub-part (a) in the calculation of decedent’s average weekly wage.

However, although the trial judge was correct in applying sub-part (d), we feel that he erred in calculating the dollar amount of benefits due. Decedent worked for the employer from June 27, 1977, until the date of the‘fatal accident on October 3, 1977. The trial judge failed to include the wages paid decedent for the week ending September 22, 1977, in his calculations, apparently because the employer’s payroll sheet for that period was not contained in the record. However, the amount of wages earned by decedent for that period can be determined by subtracting the total amount of the employee’s earnings for the other pay periods of the third quarter of 1977 from the total amount reported for the employee for this quarter on the Quarterly FICA and Department of Employment Security forms filled out by the employer. Decedent earned $60.00 during this pay period. Additionally, the trial judge made a clerical error in reporting the wages for the week of September 9, 1977, as $80.00 instead of $95.00, which was the amount indicated on the employer’s payroll records.

The most significant problem, however, is in the method by which the trial judge computed the average weekly wage. When applying sub-part (d) of La.R.S. 23:1021(7), the trial judge divided the total gross earnings by the days and fractions of a day the employee worked. The fractions of a day that the employee worked were readily ascertainable in this case because the employer sometimes paid in fractions of a day, as indicated above. We do not feel, however, that fractions of a day should be used in the formula outlined by sub-part (d); instead, we feel that the calculation should be made in whole days only.

Sub-part (d) provides that the average weekly wage of an employee employed on any basis other than hourly, monthly, or annually, is computed by dividing the gross earnings for the twenty-six week period immediately preceding the accident by the number of days the employee actually worked for the employer, and multiplying the resultant quotient by four. If the employee worked for the employer for less than a twenty-six week period, the average weekly wage is computed by taking the gross earnings, dividing them by the number of days actually worked, and multiplying the resultant quotient by four.

By dividing the number of days worked into the total gross earnings, the formula derives an average daily wage. By multiplying the quotient by four, the formula derives an average weekly wage, based upon a four day work week. For unit, piece, or commission work, the formula results in changing the measure of salary from a unit, piece, or commission basis to a basis of time. The formula works well in these instances, because the individual productivity element is still present when the transformation from unit, piece, or commission is made to time. Obviously, an employee who works faster will earn more in the same period of time than an employee who works slower. Thus, given two employees who work at the same rate of pay, the employee who works faster should end up with a higher average weekly wage than the employee who works slower.

In actuality, therefore, the purpose behind the formula in sub-part (d) is simply to answer the question: What amount of money can a particular employee be expected to earn in any particular week, on the average?

When this purpose is kept in mind, it is apparent that the use of fractional days for a daily wage rate earner is incorrect. When one uses fractional days in the formula, the resulting figure does not yield the amount of money the particular employee could be expected to earn in a particular week on the average, because, when dividing the amount earned in a day by the fraction of the day required to earn it, the quotient, in mathematical terms, will yield the daily wage rate and not the average daily wage. Accordingly, when this quotient is multiplied by four, the resulting product is not the average weekly wage. The following example is illustrative:

Assume that there are two employees, A and B. Each is employed at a daily wage rate of $40.00 per day, and each works four days per week. However A works full days and gels paid for full days. B works half days and gets paid only half of the daily wage. At the end of each week, A has weekly gross earnings of $160.00 (4 X $40.00); B, however, has gross earnings of only $80.00 (4 X xh X $40.00). Assume further that each is killed in the course and scope of his employment at the end of a four week period. Utilizing the formula in sub-part (d), A’s average weekly wage is $160.00. A’s total gross earnings, $640.00, is divided by the total days worked, 16, and the average daily wage would be $40.00. This, multiplied by 4, will yield an average weekly wage of $160.00. With regard to B, if one uses fractional days, B’s average weekly wage will also be $160.00. B’s total gross earnings, $320.00, would be divided by 16 one-half days, or 8 days, which will yield an average daily wage of $40.00. When this is multiplied by 4, the average weekly wage would be $160.00, despite the fact that B never earned close to $160.00 in any one-week period.

We do not think that this result is correct. A worked twice as much as B and, in actuality, earned twice as much as B while he was working. Yet both A and B will have the same average weekly wage for compensation purposes. The problem results from using fractional days in the calculation of B’s average weekly wage. If one, however, uses 16 days for B, because B was actually at work for 16 calendar days, the average weekly wage becomes $80.00, which is the correct sum.

We feel that the legislature did not intend to pass a statute which could lead to such results. Thus, we conclude that, when computing the average weekly wage under La.R.S. 23:1021(7)(d), the phrase “number of days the employee actually worked” refers to calendar days, and not to fractional days.

Turning to the record in the instant case, the employee had the following earnings:

Decedent began work on June 27, 1977, and was killed on October 4, 1977. Therefore, he worked less than a 26 week period, and his average weekly wage is computed by dividing his gross earnings, $1,319.00, by the days actually worked, 35, and multiplying the resultant quotient by 4. This procedure yields an average weekly wage of $150.76. Under La.R.S. 23:1232, the widow and children are to receive 65% of this amount, or $97.99 weekly. The stipulation entered into by counsel for the surviving widow and stepchildren, and counsel for the natural tutrix and children, provides that the surviving widow, Mrs. Brenda Joyce Taylor Mason, receives 32.5% of this amount, with the remainder to be divided equally among the children and stepchildren. Thus, the surviving widow should have received $31.85 weekly, and the five children and stepchildren should each have received $13.23 weekly.

However, inasmuch as the insurer and the employer did not appeal nor answer the appeal, we are powerless to reduce the amount of compensation awarded. La.C. C.P. Article 2133. We will affirm the judgment of the trial court with regard to the amount of benefits due.

The final matter deals with penalties and attorney’s fees. The trial judge denied an award of penalties and attorney’s fees, finding that the insurer’s actions were not arbi-

trary, capricious, or unreasonable, under the circumstances presented.

The insurer in this case deposited the sum of $95.75 per week into the registry of the Court when it invoked the concursus. Upon the rendition of the judgment of the District Court, the insurer supplemented its deposits in order to meet the amount of benefits awarded by the trial court.

The record before us does not contain any evidence of a demand being made upon the insurer following the death of decedent, nor any evidence of the facts the insurer had before it at the time it began to deposit the weekly benefits into the registry of the Court.

Considering the totality of the circumstances presented in this case, we do not feel that the trial court was in error by failing to award penalties and attorney’s fees. See Campanella v. State, through the Department of Highways, 328 So.2d 798 (La. App. 1st Cir. 1976).

For the above reasons the judgment of the District Court is affirmed. All costs on appeal are assessed against the defendant-appellant, Donna Wheeler Mason.

AFFIRMED.

GUIDRY, J., concurs in the result.

      . No explanation is found in the record as to why such a differing figure was paid.