source: Caselaw Access Project

author: MARCUS, Justice. SUMMERS, Justice PER CURIAM.

license: Public Domain

text:
    Curtis POCHE, Jr. and Velma Poche, Widow of Curtis Poche, Sr., Individually and as Administratrix of the Estates of her minor children, Whitney Poche and Patricia Poche v. AVONDALE SHIPYARDS, INC., et al. Aldrich ADAMS v. Ed HARTZMAN et al.
    Nos. 57966 and 57906.
    Supreme Court of Louisiana.
    Nov. 8, 1976.
    Dissenting Opinion Nov. 18, 1976.
    Rehearing Denied (57906) Jan. 21, 1977.

      Garland R. Rolling, Metairie, for plaintiff-applicant in 57906.
    Charles A. Kronlage, Jr., Kronlage, Citt-mann & Caswell, New Orleans, for plaintiffs-applicants in 57906 and 57966.
    Dominic J. Gianna, Donald A. Hammett, Hammett, Leake, Hammett, Hulse & Nelson, New Orleans, for defendants-respondents in No. 57906 and 57966.
   MARCUS, Justice.

This case involves two independent suits consolidated for our consideration because they present a common issue. In one suit, the widow and children of Curtis Poche, Sr. filed a third party negligence action against Avondale Shipyards, Inc., Poche’s employer, and certain named executive officers of Avondale Shipyards, Inc. pursuant to La. R.S. 23:1101 for the wrongful death of their husband and father, respectively. On August 17, 1973, Curtis Poche, Sr., in the course and scope of his employment by Avondale Shipyards, Inc., was engaged in new ship construction in a shipyard area located entirely over land when the section of the ship to which his scaffold was attached suddenly broke away from the rest of the structure and collapsed, causing him to fall and be fatally injured.

The plaintiff in the second suit, Aldrich Adams, sustained personal injuries in the course and scope of his employment by Avondale Shipyards, Inc. on October 28, 1974, while he was working entirely over land as operator of a crane being used in new ship construction. He was struck on the head and neck by a piece of ship framework which swung around unexpectedly as it was being moved by the crane. Plaintiff made several executive officers and fellow employees defendants in a negligence action filed pursuant to La.R.S. 23:1101.

Defendant executive officers and fellow employees in both suits filed exceptions alleging no right or cause of action claiming that the benefits afforded by the Longshoremen’s and Harbor Worker’s Compensation Act (LHCA) were available to plaintiffs and thus excluded all rights, remedies and benefits otherwise provided by the Louisiana Workmen’s Compensation Act. Avondale Shipyards, Inc. also filed an exception of no cause of action to the suit instituted by Curtis Poche, Jr., et al. From judgments maintaining defendants’ exceptions and dismissing their suits, plaintiffs appealed to the Fourth Circuit where their cases were consolidated for consideration. The appeal court affirmed the judgments below, holding that, although the LHCA and Louisiana compensation acts may operate concurrently as to injuries occurring on land, a plaintiff who elects to sue under state law may not recover against executive officers and fellow servants since recovery against same would conflict with the prohibition of such suits embodied in the federal act.

The appeal court additionally affirmed the trial court’s judgment sustaining the exception filed by Avondale Shipyards, Inc. and dismissing Avondale from the Poche suit. We granted writs of certiorari to consider the correctness of the judgments of the court of appeal.

The issues presented for our consideration are narrow yet difficult ones involving the delicate balance to be maintained between state and federal laws which purport to govern the same area of activity. We must decide (1) whether a worker injured on land and covered by the LHCA may elect to pursue the remedies afforded under the workmen’s compensation law of Louisiana, and (2) if so, whether the state compensation law is to be applied in its entirety or only insofar as its provisions are compatible with those embodied in the federal legislation.

Prior to the enactment of the 1972 amendments to the LHCA, the coverage of the act was defined as follows:

(3) The term ‘employee’ does not include a master or member of a crew of any vessel, nor any person engaged by the master to load or unload or repair any small vessel under eighteen tons net.
(4) The term ‘employer’ means an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any dry dock.) 33 U.S.C. § 902.
(a) Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results, from an injury occurring- upon the navigable waters of the United States (including any dry dock) and if recovery for the disability or death through workmen’s compensation proceedings may not validly be provided by State law. ... 33 U.S.C. § 903. (Emphasis added.)

It is undisputed that the LHCA before 1972 had no application to injuries occurring on land; state compensation acts constituted the sole remedy available, even to traditionally maritime workers who happened to be injured on shore. Nacirema Operating Co. v. Johnson, 396 U.S. 212, 90 S.Ct. 347, 24 L.Ed.2d 371 (1969). The principle that local not maritime law governed workers injured on land was reiterated in Victory Carriers, Inc. v. Law, 404 U.S. 202, 92 S.Ct. 418, 30 L.Ed.2d 383 (1971). At the same time, however, the United States Supreme Court intimated that under the authority granted in Articles I and III of the United States Constitution, Congress might legislate compensation coverage for maritime workers injured in shoreside accidents.

Congress apparently responded to the invitation in Nacirema and revised the coverage of the LHCA in 1972 to extend benefits to certain classes of maritime workers who performed their duties on land. The coverage provisions were expanded as follows:

(3) The term ‘employee’ means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker, but such term does not include a master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net.
(4) The term ‘employer’ means an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel). 33 U.S.C. § 902.
(a) Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel). ... 33 U.S.C. § 903(a).

Defendants argue that the 1972 amendments to the LHCA have the effect of preempting the power of this state to provide a compensation remedy to maritime workers injured on our soil. Their principal contentions are: (1) that the need for uniformity in the field of admiralty law demands that federal law operate exclusively as to covered workers; (2) that the history and wording of the LHCA evidence a Congressional intent that federal law in this area be preeminent; and (3) that even if concurrent operation of the two compensation laws is permissible, state law must yield where its provisions conflict with those of the federal act.

We do not agree with any of these contentions.

THE EXTENSION OF LHCA INLAND

The history of workmen’s compensation as it relates to longshoremen, harborwork-ers, and others injured on navigable waters in the course of their employment has been a long and tortuous one. In 1917, the United States Supreme Court held, in a divided opinion, that a state compensation law could not constitutionally be applied to a longshoreman who was killed aboard a ship in navigable waters while engaged in unloading cargo. Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917). The Court emphasized that, under the facts of the case, the matter was clearly within traditional admiralty jurisdiction and therefore not subject to the diverse legislation of the various states. The Court noted however, that, while “it [is] difficult, if not impossible, to define with exactness just how far the general maritime law may be changed, modified, or affected by state legislation. That this may be done to some extent cannot be denied. . . .” The rule was announced that state legislation would be permissible unless “it contravenes the essential purpose expressed by an act of Congress, or works material prejudice to the characteristic features of the general maritime law, or interferes with the proper harmony and uniformity of that law in its international and interstate relations.” In 1917, a majority of the Court felt that this rule was violated when a state provided workmen’s compensation to a stevedore injured on navigable waters. It is noteworthy, however, that the Jensen Court did not suggest that the uniformity of the maritime law was jeopardized when state compensation laws were applied to the same workers injured on shore, doubtless because at that time admiralty jurisdiction in tort was largely tied to the situs of the injury on navigable waters. That state law could constitutionally apply to longshoremen injured on land was confirmed in State Industrial Commission v. Nordenholt Corp., 259 U.S. 263, 42 S.Ct. 473, 66 L.Ed. 933 (1922).

Thereafter, in Grant Smith-Porter Shipping Co. v. Rhode, 257 U.S. 469, 42 S.Ct. 157, 66 L.Ed. 321 (1922), the Supreme Court crossed its own line of demarcation between state and federal jurisdiction and held that, if the nature of an employee’s work was of “local concern,” a state compensation act could apply without working a material prejudice to the federal maritime law, even if the injury occurred on navigable water.

In 1927, Congress passed the Longshoremen’s and Harbor Worker’s Compensation Act, 33 U.S.C. § 901 et seq., which provided a federal compensation remedy for workers injured on navigable waters “if recovery for the disability or death through workmen’s compensation proceedings may not validly be provided by State law.” 33 U.S.C. § 903(a). This language of the act appeared to make the state and federal compensation remedies exclusive and engendered much confusion over which cases involved interests that were “maritime but local” and thus cognizable under state as opposed to federal law.

In Davis v. Department of Labor & Industries, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246 (1942), the Supreme Court coined the phrase “twilight zone” to describe the shadowy area in which it was difficult to determine whether state or federal law should apply. In this area, if a worker elected to apply for state benefits his choice would be upheld and the application of state law presumed constitutional. In subsequent cases, the Court made it clear that an area of concurrent jurisdiction existed wherein workers injured on navigable waters, even when their occupations were traditionally maritime, could pursue remedies available under state compensation laws. Hahn v. Ross Island Sand & Gravel Co., 358 U.S. 272, 79 S.Ct. 266, 3 L.Ed.2d 292 (1959); Richard v. Lake Charles Stevedores, Inc., 95 So.2d 830 (La.App. 1st Cir. 1957), cert. denied 355 U.S. 952, 78 S.Ct. 535, 2 L.Ed.2d 529 (1958); Baskin v. Industrial Accident Commission, 338 U.S. 854, 70 S.Ct. 99, 94 L.Ed. 523 (1949); Bethlehem Steel Co. v. Moore, 335 U.S. 874, 69 S.Ct. 239, 93 L.Ed. 417 (1948). Although dicta in the Supreme Court’s decision in Pennsylvania Railroad Co. v. O’Rourke, 344 U.S. 334, 73 S.Ct. 302, 97 L.Ed. 367 (1953) referred to the LHCA as an exclusive remedy, the Court’s comments were made in a case involving a contest between two federal compensation systems (FELA and LHCA). Moreover, in Calbeck v. Travelers Insurance Co., 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1961), the Court judicially excised the troublesome clause in the LHCA “if recovery . may not validly be provided by State law,” which had created the implication that state and federal compensation systems were exclusive. The Court held that LHCA benefits would be available for all workers injured on navigable waters, whether or not a particular injury might also have been within the constitutional reach of a state compensation act. In so ruling, the Court did not suggest that the availability of federal benefits thereby excluded the operation of state law, but rather stated that its decision was consistent with Davis and the twilight zone concept. We note particularly the discussion in Calbeek of the decision in Avondale Marine Ways, Inc. v. Henderson, 346 U.S. 366, 74 S.Ct. 100, 98 L.Ed. 77 (1953). In that case, the LHCA was held applicable to a fatal injury occurring on land to an employee engaged in the repair of a vessel which was physically located on a marine railway inasmuch as such a railway was comparable to a dry dock, an area specifically covered by LHCA. With regard to the LHCA coverage, the Calbeek Court noted that “at the same time, since the injury did, in a physical sense, occur on land, there is little doubt that a state compensation act could validly have been applied to it.”

In our own court, in Ellis v. Travelers Insurance Co., 241 La. 433, 129 So.2d 729 (La.1961), we were persuaded by a decision of the United States Court of Appeal for the Fifth Circuit that as to a longshoreman performing maritime work at the time of injury aboard a vessel afloat on navigable waters the LHCA was the exclusive remedy. Flowers v. Travelers Ins. Co., 258 F.2d 220 (5th Cir. 1958). Our decision in Ellis, however, and the Flowers decision, on which we heavily relied, was reached without the benefit of the Supreme Court’s opinion in Calbeek. Subsequently, in Arp v. Maryland Casualty Company, 170 So.2d 166 (La.App. 4th Cir. 1964), the Fourth Circuit held that at least as to a shore based repairman injured aboard a vessel, the state compensation system could apply. We denied writs with the notation: “On the facts found by the Court of Appeal there appears no error of law in its judgment.” 247 La. 411, 171 So.2d 666 (1965).

What can be gleaned from an examination of these cases is that the United States Supreme Court has made it clear that state compensation laws can be constitutionally applied concurrently with the federal compensation system to some, if not all, categories of maritime workers. While the Court has never overruled Jensen, it has demonstrated that the uniformity of the federal maritime law is not materially prejudiced by the operation of state compensation remedies even in areas where the federal law is also applicable. Now that the amendments to LHCA cover land-based workers traditionally falling under the exclusive coverage of state acts, we see little reason to conclude that the concurrent application of the two compensation systems is any more inimical to the maritime law than was the case before the 1972 amendments.

We are reinforced in our conclusions by the recent decision of the United States Supreme Court in Askew v. American Waterways Operators, Inc., 411 U.S. 325, 93 S.Ct. 1590, 36 L.Ed.2d 280 (1973). In commenting on the shoreward extension of admiralty jurisdiction in the Admiralty Extension Act, 46 U.S.C. § 740, the Court noted:

While Congress has extended admiralty jurisdiction beyond the boundaries contemplated by the framers, it hardly follows from the constitutionality of that extension that we must sanctify the federal courts with exclusive jurisdiction to the exclusion of powers traditionally within the competence of the States. . Even though Congress has acted in the admiralty area, state regulation is permissible, absent a clear conflict with the federal law.

The Court further stated that Jensen has been confined to its facts, viz., to suits relating to the relationships of vessels, plying the high seas and our navigable waters, and to their crews. The fact that a whole system of liabilities was established on the basis of the reasoning in that case, the Court noted, led years ago to the establishment of the twilight zone where state regulation was permissible. Thus, even subsequent to the passage of the 1972 amendments to the LHCA, the Court seems to have reaffirmed the notion that state and federal compensation systems can co-exist, at least in cases with facts distinguishable from those in Jensen.

Accordingly, we find no constitutional impediment to the concurrent operation of the LHCA and Louisiana Workmen’s Compensation Act with respect to injuries sustained on land in the course of new ship construction.

FEDERAL PREEMINENCE IN THE FIELD

Defendants argue that, even if state law may constitutionally apply to workers covered by LHCA, state law must nevertheless yield to federal preemption of the field. It is well settled, however, that the mere fact that Congress enacts a law in a given area does not thereby exclude the power of a state to apply its laws governing the same subject matter. In fact, where Congress legislates in a field traditionally occupied by state law, it is assumed that the historic police powers of the state were not to be superseded by federal act unless that was the clear and manifest purpose of Congress. Rice v. Santa Fe Elevator Corporation, 331 U.S. 218, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947). In Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963), the Court made the following observations concerning federal preemption:

. The test of whether both federal and state regulations may operate, or the state regulation must give way, is whether both regulations can be enforced without impairing the federal superintendence of the field, not whether they are aimed at similar or different objectives.
The principle to be derived from our decisions is that federal regulation of a field of commerce should not be deemed preemptive of state regulatory power in the absence of persuasive reasons — either that the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained. .

As stated in Askew v. American Waterways Operators, Inc., 411 U.S. 325, 93 S.Ct. 1590, 36 L.Ed.2d 280 (1973):

Even though Congress has acted in the admiralty area, state regulation is permissible, absent a clear conflict with the federal law.

The general rule to be derived from these cases and others dealing with the question of federal preemption is that state power is not preempted unless: (1) it was the clear and manifest purpose of Congress to do so, or (2) the exercise of dual authority is repugnant to the Congressional objective.

The disputed LHCA amendments make no express declaration that Congress has preempted the right of states to compensate those land-based longshoremen and harbor workers to whom federal benefits were extended. In fact, there has been no change whatsoever in the coverage provisions of the act itself warranting the conclusion that the LHCA is any more exclusive now than it was prior to 1972 when, as we have already observed, state and federal compensation laws operated concurrently as to many injuries. In fact, the troublesome clause which suggested that the state and federal systems were exclusive, “if recovery for the disability or death through workmen’s compensation proceedings may not validly be provided by state law,” was deleted in the 1972 revision of the act. This change prompted the following academic commentary:

Its deletion leaves the statute blank on the relationship of the expanded federal system to the state system. A vague idea of ‘federal preemption’ should not lead us to the unfortunate and unnecessary conclusion that the state statutes can now operate only up to (and never beyond) the newly demarcated federal line.

G. Gilmore & C. Black, Law of Admiralty 425-26 (2nd ed. 1975). Nor can we find a clear manifestation of congressional intent to preempt state law in the legislative history of the 1972 amendments. With regard to the landward extension of LHCA, the Congressional committee which studied the amendments made the following comments:

The present Act, insofar as longshoremen and ship builders and repairmen are concerned, covers only injuries- which occur ‘upon the navigable waters of the United States.’ Thus, coverage of the present Act stops at the water’s edge; injuries occurring on land are covered by State Workmen’s Compensation laws. The result is a disparity in benefits payable for death or disability for the same type of injury depending on which side of the water’s edge and in which State the accident occurs.
To make matters worse, most State Workmen’s Compensation laws provide benefits which are inadequate; even the better State laws generally come nowhere close to meeting the National Commission on State Workmen’s Compensation Laws recommended standard of a maximum limit on benefits of not less than 200% of statewide average weekly wages. The following are the maximum limits on the compensation payable for permanent total disability in some maritime States:
California-$ 70.00
Florida_ 56.00
Hawaii_ 112.50
Louisiana_ 49.00
Maryland_ 85.68
Massachusetts_ 77.00
New Jersey _ 101.00
New York _ 80.00
Oregon _ 62.50
Pennsylvania _ 60.00
Texas _ 49.00
Also, under the laws of some states due to exemptions based upon the number of employees hired some workers might be uncovered in the event they are unfortunate victims of an injury.
It is apparent that if the Federal benefit structure embodied in Committee bill is enacted, there would be a substantial disparity in benefits payable to a permanently disabled longshoreman, depending on which side of the water’s edge the accident occurred, if State laws are permitted to continue to apply to injuries occurring on land. It is also to be noted that with the advent of modern cargo-handling techniques, such as containerization and the use of LASH-type vessels, more of the longshoreman’s work is performed on land than heretofore.
The Committee believes that the compensation payable to a longshoreman or a ship repairman or builder should not depend on the fortuitous circumstance of whether the injury occurred on land or over water. Accordingly, the bill would amend the Act to provide coverage of longshoremen, harbor workers, ship repairmen, ship builders, shipbreakers, and other employees engaged in maritime employment (excluding masters and members of the crew of a vessel) if the injury occurred either upon the navigable waters of the United States or any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other area adjoining such navigable waters customarily used by an employer in loading, unloading, repairing, or building a vessel.
The intent of the Committee is to permit a uniform compensation system to apply to employees who would otherwise be covered by this Act for part of their activity. To take a typical example, cargo, whether in break bulk or containerized form, is typically unloaded from the ship and immediately transported to a storage or holding area on the pier, wharf, or terminal adjoining navigable waters. The employees who perform this work would be covered under the bill for injuries sustained by them over the navigable waters or on the adjoining land area. The Committee does not intend to cover employees who are not engaged in loading, unloading, repairing, or building a vessel, just because they are injured in an area adjoining navigable waters used for such activity. Thus, employees whose responsibility is only to pick up stored cargo for further trans-shipment would not be covered, nor would purely clerical employees whose jobs do not require them to participate in the loading or unloading of cargo. However, checkers, for example, who are directly involved in the loading or unloading functions are covered by the new amendment. Likewise the Committee has no intention of extending coverage under the Act to individuals who are not employed by a person who is an employer, i. e. a person at least some of whose employees are engaged, in whole or in part in some form of maritime employment. Thus, an individual employed by a person none of whose employees work, in whole or in part, on navigable waters, is not covered even if injured on a pier adjoining navigable waters.

U.S.Code Cong. & Admin.News 1972, pp. 4698, 4707. (Emphasis added.)

Our examination of the legislative history leaves us unconvinced that Congress intended to exclude workers injured on land from their remedies under state compensation laws. The intent was clearly to make the liberal benefits provided by the LHCA uniformly available to longshoremen and harborworkers regardless of on which side of the water’s edge their injuries were sustained. The legislators noted the meager benefits provided by some states and demonstrated a desire to “permit’ a uniform compensation system to apply to employees who would otherwise be covered by this act for part of their activity.

There is nothing in the legislative history to suggest that Congress intended to overrule the line of cases recognizing a state’s concurrent right to provide compensation for injuries sustained in maritime pursuits of local concern even though the worker was covered by the LHCA. It is pertinent to observe that, in discussing its intention to repudiate the judicial extension of the warranty of unseaworthiness to longshoremen in third party suits against a vessel, the congressional committee discussed in detail the Supreme Court decisions it intended to overrule. We are satisfied therefore that neither the history nor the wording of the 1972 amendments manifest a clear purpose to preclude the applicability of state compensation law in the new land areas covered by the federal act.

Defendants further contend that the pervasiveness of the federal compensation system and regulations promulgated thereunder are facts from which a Congressional intention to preempt state law can be implied. It has not been demonstrated, however, that the regulations issued pursuant to the LHCA as amended are any more pervasive than those handed down prior to the 1972 revisions. Moreover, we note that the pervasiveness of federal regulation and superintendence of the field was never a bar to concurrent application of state and federal law to injuries over water in the pre-1972 era. We are not persuaded that arguments grounded in the pervasiveness of federal regulation are any more compelling now that the LHCA has moved inland nor that the operation of the state compensation law would frustrate the purpose or objectives of the federal act. If the concurrent applicability of the two systems as to certain classes of workers injured over water did not present a significant conflict when state law was elected by injured workers, it is difficult to comprehend how the concurrent operation of the compensation systems over land can generate conflicts of a more serious nature. We are in agreement with the appeal court’s determination of this issue.

THIRD PARTY ACTIONS AGAINST EXECUTIVE OFFICERS AND FELLOW EMPLOYEES

La.R.S. 23:1101 gives an injured party the right to “obtain damages from or proceed at law against such [a negligent] third [party] to recover damages for the injury.” Our jurisprudence has interpreted third parties within the contemplation of this statute.to include fellow employees and executive officers. Canter v. Koehring Co., 283 So.2d 716 (La.1973). Grigg v. Martin, 269 So.2d 331 (La.App.2d Cir. 1972); Jolly v. Travelers Ins. Co., 161 So.2d 354 (La.App. 4th Cir. 1964). Defendants argue that in this respect the Louisiana Workmen’s Compensation Act is in direct conflict with the LHCA which provides:

The right to compensation or benefits under this chapter shall be the exclusive remedy to an employee when he is injured, or to his eligible survivors or legal representatives if he is killed, by the negligence or wrong of any other person or persons in the same employ: Provided, That this provision shall not affect the liability of a person other than an officer or employee of the employer.

That the provisions of the state and federal compensation laws with respect to third party negligence actions are different cannot be disputed. We are of the opinion, however, that once the initial determination was made that the LHCA and state compensations statutes could operate concurrently, the appeal court was in error to reexamine the question of state-federal conflict with respect to particular provisions of the acts. It is obvious that unless the state statute provides benefits or rights beyond those accorded by federal law, there would be no reason to elect to pursue the state remedy. To hold, as did the appellate court, that a plaintiff may elect state law but only insofar as the rights accorded thereunder do not exceed those provided in the federal scheme is to render meaningless the right to make the initial election. We find it particularly significant that workers who chose to pursue state remedies during the pre-1972 era were allowed to take advantage of the state law in its entirety. The courts did not compare particular provisions of the laws with a view to harmonizing differences.

In sum, it is our opinion that the 1972 amendments to the LHCA were intended to provide additional benefits for land-based maritime workers rather than to deprive them of rights and remedies which they already had. Louisiana has a legitimate interest in assuring the applicability of its compensation laws to injuries sustained within its jurisdiction. Accordingly, there should be no compelling reason to prohibit the legislature of this state from making available what, to some plaintiffs, may be a more attractive compensation scheme, so long as double recovery is not permitted. Until this court is confronted with authority to the contrary, we decline to hold that the compensation law of this state is preempted from operating in an area of traditionally local concern.

Accordingly, we reverse the decision of the appeal court insofar as it held that state law regarding suits against executive officers and fellow servants cannot be availed of by a plaintiff who has elected to proceed under the Louisiana Workmen’s Compensation statute. However, we note a distinction in the cases before us for review which the appeal court failed to discern. The widow and children of Curtis Poche, Sr. elected to sue under the state law and declined to accept LHCA benefits when they were offered by Avondale Shipyards. Conversely, it was stipulated at trial that plaintiff Aldrich Adams was receiving compensation payments under the LHCA. We are of the opinion that Adams, having availed himself of the benefits under the LHCA, has elected to pursue his remedies under the federal compensation statute. No argument to the contrary has been made. Since the LHCA prohibits suits against officers and fellow employees, the decision of the appeal court affirming the ruling of the trial judge and dismissing the suit instituted by Adams is correct. Furthermore, we are unable to say that the court of appeal erred in affirming the trial court’s ruling which sustained Avondale Shipyard’s exception to the Poche suit; nor has any error in the court of appeal judgment in this regard been urged before us.

DECREE

For the reasons assigned, the judgment of the court of appeal affirming the trial court’s ruling which sustained the exceptions of defendant executive officers and dismissed the suit of Curtis Poche, Jr., et al., against them is reversed and the case is remanded to the trial court for further proceedings not inconsistent with this opinion, with costs assessed to defendants. However, the portion of the judgment of the appeal court affirming the trial court’s ruling which sustained the exception of Avon-dale Shipyards, Inc. and dismissed the suit as to this defendant is affirmed.

For the reasons assigned, the judgment of the court of appeal as to plaintiff Aldrich Adams maintaining the trial court’s ruling which sustained defendants’ exceptions of no right or cause of action and dismissed the suit against them is affirmed at appellant’s cost.

SUMMERS, J., dissents and will assign reasons.

SUMMERS, Justice

(dissenting).

While I agree with the result reached by the Court and the holding that the 1972 amendment of the Longshoreman’s and Harborworker’s Compensation Act, 33 U.S.C. § 902(3), (4) and 903(a), extending its effect inland did not preempt Louisiana’s Workmen’s Compensation Act, I do not agree with the opinion in the respects set forth hereafter.

In referring to the exclusive remedy provisions of the federal and state compensation laws, the Court observes that they are different, a fact which it considers “cannot be disputed.” I dispute this statement insofar as it applied to suits by injured employees against officers or employees of their employer.

The Federal Act as amended in 1972 sets forth:

“The right to compensation or benefits under this chapter shall be the exclusive remedy to an employee when he is injured, or to his eligible survivors or legal representatives if he is killed, by the negligence or wrong of any other person or persons in the same employ: Provided, That this provision shall not affect the liability of a person other than an officer or employee of the employer.” 33 U.S.C. § 933(i)

Before their amendment by Act 147 of 1976, the comparable provisions of Louisiana’s Workmen’s Compensation Act read as follows:

“The rights and remedies herein granted to an employee or his dependent on account of a personal injury for which he is entitled to compensation under this Chapter shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents or relations. . . . ” La.Rev.Stat. 23:1032.
“When an injury for which compensation is payable under this Chapter has been sustained under circumstances creating in some person (in this Section referred to as third person) other than the employer a legal liability to pay damages in respect thereto, the injured employee or his dependent may claim compensation under this Chapter and the payment or award of compensation hereunder shall not affect the claim or right of action of the injured employee or his dependent against such third person, nor be regarded as establishing a measure of damages for the injury; and such injured employee or his dependent may obtain damages from or proceed at law against such third person to recover damages for the injury.
“Any employer having paid or having become obligated to pay compensation under the provisions of this Chapter may bring suit against such third person to recover any amount which he has paid or become obligated to pay as compensation to any injured employee or his dependent.” La.Rev.Stat. 23:1101

In my view the deceased employee, whose death is the subject of this suit, and the defendants, presently before the Court, were all subject to the Workmen’s Compensation Act under its provisions as they existed at the time of the alleged negligent death. La.Rev.Stat. 23:1039 (1948). As I understand the facts, decedent and defendants were also coemployees of the same employer.

Under Louisiana’s Workmen’s Compensation Act at the time of this accident, because of its benefits and limitations, the recourse allowed to employees coming under its provisions are exclusive, just as they are under the Federal Longshoreman’s and Harborworker’s Act. Thus under these acts the right to sue in tort does not apply to coemployees working under the same employer. Miller v. Scott, 339 S.W.2d 941 (Ky.1960).

One purpose of both the Longshoreman’s and Harborworker’s Act and the Workmen’s Compensation Acts was to sweep within their provisions all claims for compensation flowing from personal injuries arising out of and in the course of employment by a common employer, and not to preserve for the benefit of the employer, his insurer, or employees injured by other employees, liabilities between those engaged in the common employment which but for the Acts would exist under the general tort law. Canter v. Koehring Company, 283 So.2d 716 (La.1973) (Summers, J. dissenting).

It is true that this Court in Canter v. Koehring Company, 283 So.2d 716 (La.1973), without referring to the above quoted provisions of the Louisiana Workmen’s Compensation Act, held that a person is liable as an executive officer if he is an officer, agent or employee of an employer or principal and is liable to a third party, even a coemployee, for injuries caused as a result of the breach of a duty imposed by the employer or principal upon the executive officer.

The disturbing implication of the decision in Canter v. Koehring was that the injured workman was thereafter permitted to recover fully in tort under circumstances intended to be covered by workmen’s compensation, thus undermining the policy purposes for the limited liability imposed by those statutes. At the same time negligent employees were subjected to claims in tort as the result of injuries sustained by their coemployees while in the course and scope of their employment.

The decision’s departure from the clear wording, evident intent and obvious spirit of the Workmen’s Compensation Act was readily recognized by employers and employees alike. As a result, in order to maintain the integrity of the Act, the effect and implications of the decision were overwhelming repudiated and rejected by the Legislature when it enacted Act 147 of 1976, amending Sections 1032 and 1101 of Title 23 of the Revised Statutes to read as follows:

“The rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said injury, or compensable sickness or disease. For purposes of this Section, the word “principal” shall be defined as any person who undertakes to execute any work which is a part of his trade, business or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof.
“Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.
“The immunity from civil liability provided by this Section shall not extend to: 1) any officer, director, stockholder, partner or employee of such employer or principal who is not engaged at the time of the injury in the normal course and scope of his employment; and 2) to the liability of any partner in a partnership which has been formed for the purpose of evading' any of the provisions of this Act.” La. Rev.Stat. 23:1032.
“When an injury or compensable sickness or disease for which compensation is payable under this Chapter has occurred under circumstances creating in some, person (in this Section referred to as third person) other than those persons against whom the said employee’s rights and remedies are limited in Section 1032 of this Chapter, a legal liability to pay damages in respect thereto, the aforesaid employee or his dependents may claim compensation under this Chapter and the payment or award of compensation hereunder shall not affect the claim or right of action of the said employee or his dependents, relations, or personal representatives against such third person, nor be regarded as establishing a measure of damages for the claim; and such employee or his dependents, relations, or personal representatives may obtain damages from or proceed at law against such third person to recover damages for the injury, or compensable sickness or disease.
“Any person having paid or having become obligated to pay compensation under the provisions of this Chapter may bring suit against such third person to recover any amount which he has paid or become obligated to pay as compensation to such employee or his dependents.” La. Rev.Stat. 23:1101

As amended these sections restate in unmistakable terms a meaning which had been distorted in Canter v. Koehring by forced logic and a disregard of those provisions of the act designed to prevent the result reached in Canter v. Koehring.

It is now clear, as it should have been before Canter v. Koehring, that no suit will lie in tort by an employee against a negligent coemployee for injuries or death sustained in the- course and scope of their employment.

It is for these reasons, and the reasons more fully stated in my dissent in Canter v. Koehring, that I cannot agree with the Court’s statement that Section 1101 “gives an injured party the right to ‘obtain damages from or proceed against such [a negligent] third party to recover damages for the injury.’” And the accompanying corroborating statement that “[o]ur jurisprudence has interpreted third parties within the contemplation of this statute to include fellow employees and executive officers.” To support this proposition the Court cites the legislatively discredited holding, in Canter v. Koehring and refuses to abide by the declared public policy as set forth in Sections 1032 and 1101 before and after their amendment by Act 147 of 1976.

By these and other expressions in the opinion it is evident that the Court intends to adhere to the holding in Canter v. Koehring, at least for this case.

If the basis for this holding is, as it appears to be, that plaintiffs may maintain a suit in tort against decedent’s coemploy-ees, then this right is, in the words of the majority, “a more attractive compensation scheme,” one which is not permitted by the Longshoremen’s and Harborworker’s Act; and, according to the majority, plaintiffs should not be denied recourse to this advantage. My view is to the contrary. I do not quarrel with the fact that plaintiffs may elect which Act will govern their claim, only that plaintiffs have no claim in tort under Louisiana’s Act, just as they have no such claim under the Federal Act, or, for that matter, under the compensation acts of a majority of the states.

I would overrule Canter v. Koehring on this issue for all purposes, for cases either before or after its abrogation by the Legislature in 1976.

In addition, Aldrich Adams has been deprived of recourse under the State Act because he has received benefits under the Federal Act. This question of election was not briefed by plaintiff or defendants, and, because it was not an issue, that question should be reconsidered.

ON REHEARING

PER CURIAM.

Applicant Adams properly points out in his application on rehearing that there is no evidence in the record establishing that he made an election, or a choice of L.H.C.A. remedies, but only evidence that he has accepted benefits under the L.H.C.A. Act.

In light of the following cases: Calbeck v. Travelers Insurance Company, 370 U.S. 116, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962); Holland v. Harrison Bros. C. Dry Dock and Repair Yard, Inc., 306 F.2d 369 (5th Cir. 1962); Griffin v. Universal Underwriters Insurance Company, 283 So.2d 748 (La. 1973), and Ryder v. Insurance Company of North America, 282 So.2d 771 (La.App. 3d Cir. 1973), we deem it advisable to vacate our original judgment as to plaintiff Adams and to remand the case to the district court for the purpose of trying the issue of whether Adams elected federal benefits.

Furthermore, we reserve to the defendants in the case of Adams v. Hartzman, et al. the right to apply for a rehearing on this issue. When final here the case of Adams v. Hartzman, et al. will be remanded to the district court for further proceedings in accordance with this per curiam.

In the case of Poche, et al. v. Avondale Shipyards, Inc. et al., rehearing is denied.

      . Poche v. Avondale Shipyards, Inc., 329 So.2d 211 (La.App. 4th Cir. 1976); Adams v. Hartzman, 329 So.2d 218 (La.App. 4th Cir. 1976).

      . 332 So.2d 280.

      . All parties stipulated that both injured workers were within the coverage of LHCA as amended.

      . Our attention has been directed to the recent case of Jacksonville Shipyards, Inc. v. Perdue, 539 F.2d 533 (5th Cir. 1976) decided by the United States Court of Appeals for the Fifth Circuit holding that the 1972 amendments to LHCA were a constitutional extension of the admiralty jurisdiction by Congress. The court further notes that, because of the disposition of this issue, it need not reach the question of whether the 1972 amendments were an exercise of Congress’ power under the commerce clause as well. We do not consider this holding conflicts with our conclusions that there is no constitutional impediment to the concurrent operation of the LHCA and Louisiana Workmen’s Compensation Act with respect to injuries sustained on land in the course of new ship construction and that the 1972 amendments do not preempt the state law in this field under the facts and circumstances herein expressed.

      . Both the Moore and Baskin cases involved workers engaged in the repair of completed vessels over navigable waters. It had formerly been held that such injuries were within the exclusive federal maritime jurisdiction and thus beyond the protection of state compensation remedies. John Baizley Iron Works v. Span, 281 U.S. 222, 50 S.Ct. 306, 74 L.Ed. 819 (1930). Nevertheless, the Supreme Court affirmed the state court’s award of state benefits in Moore and reversed the denial of state benefits in Baskin, which denial had been based on the alleged exclusivity of the LHCA remedy.

      . See discussions of concurrent jurisdiction in A. Larsen, The Conflict of Laws Problem Between the Longshoremen’s Act and State Workmen’s Compensation Acts, 45 So.Calif.L. Rev. 699 (1972).

       plus $6 for each dependent.

      . This interpretation of La.R.S. 23:1101 has now been legislatively overruled to prohibit suits against executive officers and fellow employees. La.Acts 1976, No. 147.

      . See Ariz.Rev.Stat.Ann. § 23-1022 (1956); Cal.Labor Code § 3601 (Deering 1964); Colo. Rev.Stat. § 81-13-8 (1963); Conn.Gen.Stat. Ann. § 3 l-284(a) (West 1972); Lel.Code Ann. tit. 19, § 2363 (Cum.Supp.1968); Fla.Stat. § 440.11 (1975); Hawaii Rev.Stat. § 386-8 (1968); Ill.Rev.Stat. ch. 48, § 138.5 (1969); La. Rev.Stat.Ann. § 23:1032 (West 1976); Me.Rev. Stat. tit. 39, § 28 (1973); Mass.Gen.Laws.Ann. ch. 152, § 24 (West 1958); Mich.Stat.Ann. § 17.237 (827) (1968); Mo.Ann.Stat. § 287.120.2 (Vernon Supp.1975); Mont.Rev.Codes Ann. § 92-1115 (1975); N.J.Stat.Ann. 34:15-8 (1972); N.Y. Workmen’s Comp.Law § 29(6) (McKinney 1965); N.C.Gen.Stat. § 97-9 (1972); N.D.Cent.Code § 65-09-1 (1975); Ohio Rev. Code Ann. § 4123.77 (Page 1975); Okla.Stat. Ann. tit. 85, § 44 (1970); Ore.Rev.Stat. § 656.-154 (1971); Pa.Stat.Ann. tit. 77, § 72 (Purdon 1963); S.C.Code Ann. § 72-401 (1962); Tex. Civ.Stat. art. 8306(3) (Vernon 1967); Utah Code Ann. § 35-1-62 (1966); Va.Code Ann. § 65-1-103 (1968); Wash.Rev.Code § 51.24.010-(1962); W.Va.Code Ann. 23-2-6a (1970); Wis. Stat.Ann. § 102.03(2) (West 1975).


author: HALL, Judge.

text:
    Sidney E. COOK et al., Plaintiffs-Appellants, v. The METROPOLITAN SHREVEPORT BOARD OF APPEALS, et al., Defendants-Appellees.
    No. 13037.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 1, 1976.
    En Banc. Rehearing Denied Dec. 6, 1976.
    Writ Refused Feb. 9, 1977.

      Cook, Clark,' Egan, Yancey & King by Sidney E. Cook, Johnston, Thornton & Prin-gle by R. Perry Pringle, Hargrove, Guyton, Ramey & Barlow by Ray A. Barlow, Wilkinson, Carmody & Peatross by Charles B. Peatross, Shreveport, for plaintiffs-appellants, Sidney E. Cook, Oliver 0. Moore, B. K. Eaves, Dysart E. Holcomb, W. E. McKee, Robert E. Stewart and Simon Silbernagel.
    James R. Malsch, Shreveport, for defendants-appellees, The Metropolitan Shreveport Board of Appeals and The City of Shreveport.
    Tucker, Martin, Holder, Jeter & Jackson by T. Haller Jackson, Jr., Shreveport, for defendant-appellee, South Central Bell Telephone Co.
    Before PRICE, HALL and MARVIN, JJ.
   HALL, Judge.

The appeal in this zoning case is from a judgment of the district court dismissing plaintiffs’ suit to set aside action of the Metropolitan Shreveport Board of Appeals and the Shreveport City Council approving South Central Bell Telephone Company’s application for a special exception use and variance under the zoning ordinance for construction of a parking area and addition of a second floor to an existing telephone exchange building in a residential area of Shreveport. After due consideration of well articulated multiple objections to the zoning action raised by appellants, and for reasons set forth in this opinion, we affirm the judgment of the district court upholding the action of the municipal authorities.

Specifications of Error

Appellants urge ten specifications of error which, for orderly consideration and discussion in this opinion, are arranged and summarized as follows:

(1) The special exception use provisions of the Shreveport zoning ordinance are unconstitutional as written and as applied in this case.
(2) The approval of the telephone company’s application by the Board of Appeals was procedurally defective because:
(a) the Planning Commission did not first approve the application; and
(b) the two alternate members of the Board of Appeals voted on the application along with the five regular members.
(3) The approval of a parking area in connection with the telephone exchange:
(a) constitutes illegal “spot zoning”;
(b) is not authorized by the zoning ordinance or by statute; and
(c) constitutes an illegal expansion of a nonconforming use contrary to the zoning ordinance.
(4) The Board of Appeals, the City Council and the trial court erred in:
(a) holding that the telephone company’s facility is a “telephone exchange” within the meaning of the zoning ordinance;
(b) holding that the conduct of the telephone company representatives in contacting members of the Board of Appeals and City Council was not prejudicial and did not deprive appellants of a fair hearing; and
(c) holding that the special exception use would not have a detrimental effect on the neighborhood.

Background Facts

The property involved in this suit is located on Line Avenue between Unadilla and Oneonta Streets in South Highlands, a prime residential area of Shreveport. Line Avenue is a heavily traveled thoroughfare running north and south. Unadilla and Oneonta Streets are residential streets running east and west parallel to each other. The property is zoned R-l — one-family residence district. All of the neighboring properties contain nice single-family residences, except the property across Oneonta Street at the southeast corner of Oneonta and Line Avenue on which is located a fire station. Plaintiffs-appellants are homeowners in the neighborhood.

The telephone company constructed a telephone exchange building on property it owned at the corner of Unadilla and Line Avenue in 1938. The building is an aesthetically attractive one-story masonry building with a highpitched roof. The foundation was constructed to support a second floor. In 1946 and again in 1956, one story additions were made to the building. As originally designed there were off-street parking spaces for seven vehicles. Over the years a need has developed for additional parking accommodations. Employee and company vehicles have been parking on Unadilla Street causing some traffic congestion.

In 1961, the telephone company applied to the Board of Appeals for approval of a plan to allow the company to convert part of the lawn to parking. The request was denied. The City Council on appeal sustained the Board and instructed the company to submit an acceptable plan. The company secured an option on the property at the corner of Line Avenue and Oneonta Street and presented a request for a special exception use to construct a parking lot. The application was denied.

In December, 1974, the telephone company obtained another option to purchase the property at the corner of Line Avenue and Oneonta Street. Located on this property is a single-family brick home generally in keeping with the other homes in the area. The telephone company plans to remove the house and build a parking area to accommodate 26 to 28 vehicles. After approval by the City Council of the special exception use application involved in this case, the telephone company purchased the property.

The telephone company filed an application with the Metropolitan Shreveport Board of Appeals requesting a “special exception use” and “variance” to permit construction of the parking area on the property under option. The application was later amended to include an additional request for the addition of a second floor to the existing telephone facility. The addition to the existing building is needed in order to expand and modernize services to telephone customers in southeast Shreveport. The building houses equipment serving approximately 30,000 customers. It does not contain offices and a total of about 20 employees work there on shifts over a 24 hour period.

In May, 1975, the Board of Appeals held a public hearing on the telephone company’s application. All five regular members and the two alternate members of the Board of Appeals were present. Both the proponent and opponents of the application presented their cases. The application was fully discussed at this and subsequent meetings of the Board. The application was ultimately approved with all seven members of the Board voting. Four of the five regular members, plus one of the alternate members voted to approve the application. One regular member and one alternate voted not to approve the application.

The decision of the Board of Appeals was appealed by the opponents to the City Council and in July, 1975, after receiving briefs from representatives of each side, the Council upheld the decision of the Board of Appeals^

The opponents filed suit in district court for judicial review of the action of the Board of Appeals and City Council, seeking to set the action aside. Named defendants were the Board of Appeals and its members, the City Council and its members, and the telephone company. After trial de novo, in which each side was allowed to fully present its case, the trial court, in a succinct, well-reasoned written, opinion, dealt with each issue raised by the plaintiffs, upheld the action of the municipal authorities and dismissed plaintiffs’ suit. Plaintiffs appealed.

Constitutionality

Appellants contend that the “special exception use” provisions of the Shreveport Zoning Ordinance are unconstitutional as written or as applied in this case for the reason that the provisions are unconstitutionally vague and constitute a denial of due process and of equal protection of the law. Specifically, appellants attack Section VII.C. which establishes the Board’s authority to grant special exceptions and Section ILB.2.a.(3) which authorizes special exception uses in R-l — residential districts as failing to provide sufficient standards or guidelines for the granting of special exception uses.

McCauley v. Albert E. Briede & Son, 231 La. 36, 90 So.2d 78 (1956) and Bultman Mortuary Service, Inc. v. City of New Orleans, 174 La. 360, 140 So. 503 (1932) are authority for the proposition that a zoning ordinance which fails to establish a sufficiently adequate and definite guide to govern officials with respect to granting of variances, exceptions or permits is void. Summerell v. Phillips, 282 So.2d 450 (La.1973), while not dealing with special exceptions specifically, is a recent Supreme Court expression of the rule that a zoning ordinance must “establish sufficiently definite and adequate standards to govern officials with respect to the uniform treatment of applications for permits under the ordinance.”

Section VII.C. of the Shreveport Zoning Ordinance (Ordinance 184 of 1957) establishes the power and authority of the Board of Appeals in connection with granting of special exceptions:

“6. Powers of the Board. * * *
U * * *
“c. Special Exceptions. To authorize, in specific cases where the ordinance calls for review and determination by the Board, such special exceptions as will permit the construction and use of a building or building group or the use of land in accordance with a definite site plan. Special exceptions shall be subject to such terms and conditions as may be fixed by the Board.”

Section II.B.2. governs R-l districts. Under “Permitted Uses” the section provides for (1) uses by right, under which certain uses are listed; (2) uses requiring Planning Commission approval, under which are listed certain uses; and (3) special exception uses. The subsection on special exception uses provides:

“(3) Special Exception Uses. The uses listed below are subject to the same approval of location and site plan as uses requiring Planning Commission approval; in addition, these uses are declared to possess such characteristics of unique or special form that each specific use shall be considered an individual case and shall be subject to approval of the Board of Appeals in accordance with the provisions of Section VII governing Special Exceptions:
Art Gallery or Museum
Cemetery; need not be enclosed within structure
Church, including Parish House, Community House, and Educational buildings
Correctional, Detention, or Penal Institution
Electric Substation; need not be enclosed within structure, but must be enclosed within a wall at least ten feet high and adequate to obstruct view, noise, and passage of persons
Hospital or Sanitarium Nursery, Day Care, or Kindergarten School, Elementary and/or Secondary, meeting all requirements of the compulsory education laws of the State of Louisiana
Telephone exchange but not including administrative offices, shops, or garages.
(City - Trailer, Mobile Home, when used as only) a dwelling unit; not including trailer court, must have water and sewer connections
(Parish - Trailer, mobile home, when used as only) a dwelling unit on a building site, not to include Trailer Court or Mobile Home Park
University or College (non-profit)”

Section II.B.2.a.(3) provides' that special exception uses are subject to the same approval of location and site plan as uses requiring Planning Commission approval. Section II.B.2.a.(2) sets forth the standards governing approval of location and site plan by the Planning Commission as follows:

“. . . as being appropriate with regard to transportation and access, water supply, waste disposal, fire and police protection, and other public facilities, as not causing undue traffic congestion or creating a traffic hazard, and as being in harmony with the orderly and appropriate development of the district in which the use is located: . .

These identical special exception use provisions were upheld in the face of the same contentions of invalidity in Reeves v. North Shreve Baptist Church, 163 So.2d 458 (La.App. 2d Cir. 1964). In that case the court was dealing with an application for a special exception use for a church with parking area in a residential district of Caddo Parish. The special exception use provisions of the Parish zoning ordinance are identical to those of the city ordinance and the same Board of Appeals functions under both ordinances. This Court, in a carefully considered opinion authored by Judge Edward L. Gladney, held that the provisions of the zoning ordinance provide ample safeguards and guides for special exception uses. The Court concluded “that the portions of the ordinance attacked contained adequate safeguards, guides and standards to allow regulations by the courts in the event of arbitrary or unreasonable and unlawful exceptions.” In the course of the opinion this Court noted that the Board of Appeals and the governing body must have a certain amount of flexibility and that it is desirable that a zoning ordinance permit reasonable discretion in the administrative authorities. The Reeves case is. directly in point and is controlling on the issue of constitutionality.

The ordinance prescribes adequate standards for the Board to follow in granting special exception uses. First, special exceptions are only available for a small number of limited, specifically designated uses, in-eluding a telephone exchange. Most of the listed special exception uses are of a public nature and serve the overall neighborhood or community. Transportation and access, the public nature of the facility, traffic congestion, and orderly and appropriate development are listed as standards. The Shreveport Zoning Ordinance provides both the necessary standards and the necessary flexibility.

The proposed plans of the telephone company in this instance come within the standards and guidelines established by the zoning ordinance. The special exception use provisions of the ordinance are constitutional, as written and as applied in this case.

Prematurity — Lack of Approval by Planning Commission

Appellants contend that the action of the Board of Appeals was premature in that the location and site plan proposed by the telephone company was not first approved by the Metropolitan Planning Commission. Appellants argue that prior approval by the Planning Commission is required by Section II.B.2.a.(3) of the zoning ordinance and by Section 14 of Act 34 of 1954 which is the legislation authorizing zoning by the City of Shreveport.

As noted and quoted above, Section II.B.2.a.(3) dealing with special exception uses provides that “[t]he uses listed below are subject to the same approval of location and site plan as uses requiring Planning Commission approval; . . . This provision does not mean that Planning Commission approval of location and site plan is required in connection with applications for special exception uses which are subject to approval of the Board of Appeals. As discussed in the preceding section of this opinion, this language means that the location and site plan must be approved by the Board of Appeals in the same manner and according to the same standards as uses requiring Planning Commission approval.

Section 14 of Act 34 of 1954, relied on by appellants, provides that after adoption of the “master plan” no street, park or any public way, ground, place or space, no public building or structure, school or school site, or no public utility, whether publicly or privately owned, shall be constructed or authorized in the area of the adopted plan until and unless the location and extent thereof shall have been submitted to and approved by the Planning Commission. Section 14 of the Act deals with the legal status of the “master plan” which is entirely separate and apart from the zoning ordinance. The master plan is an overall comprehensive plan for the physical development of the planning area. It is not a zoning plan or a zoning ordinance.

Act 34 of 1954 authorizes the City of Shreveport to adopt a master plan, to adopt a zoning ordinance, to adopt subdivision regulations, to adopt building regulations and other matters. The record before us does not disclose the status of any “master plan” or ordinance in connection therewith adopted by the City of Shreveport. Requirements of the statute in regard to matters other than zoning or requirements of city ordinances dealing with such matters as the master plan, subdivision regulations, building codes and the like are not at issue in this suit. These are matters separate and apart from the application for a special exception use under the zoning ordinance.

Under the zoning ordinance, approval by the Planning Commission of the location and site plan of a special exception use is not required. The telephone company’s application and the procedure followed by the Board of Appeals and City Council in approving same complied in all respects with the requirements of the zoning ordinance, which is all this suit is concerned with.

Participation by Alternate Members of Board of Appeals

Appellants next contend that participation in the decision by the two alternate members of the Board of Appeals was contrary to the provisions of Section 32 of Act 34 of 1954 and rendered the Board’s action void. The statute provides:

“The zoning ordinances shall provide for a Board of Appeals of five members and two alternate members, .
<< * * *
“Alternate members shall serve only when called upon to form a quorum, and when so serving shall have all the powers and duties of full members.”

The evidence shows that it is a policy of the Board of Appeals to have as many members as possible, regular and alternate, present at all meetings in order to assure the presence of a quorum throughout the hearing, deliberation, and decisional process. Members of the Board of Appeals serve as a civic duty without compensation. There are necessarily times when members are absent from meetings and this becomes more of a problem when a particular matter is considered over the course of several meetings.

We perceive no legal objection to participation by both regular and alternate members in the hearing and deliberative proceedings. When taking formal action, the alternate members have no power to act if a quorum of the regular members is present. The alternate members should not have voted on the application in this case since a quorum of regular members was present. Nevertheless, the application was approved by a vote of four to one by the regular members present at the meeting in which the decision was made. It was not shown that the presence of and participation by the alternate members in any way affected the outcome of the decision or in any way prejudiced the rights of appellants. The error was harmless and does not affect the legality of the Board’s action.

Spot Zoning

Appellants next contend that approval of the use of the property as a parking lot constitutes illegal “spot zoning.” Spot zoning is a term often used in zoning matters and has been given a variety of definitions in reported cases. See 51 A.L. R.2d 263. In general, spot zoning is the singling out of a small parcel of land for use classification different from that of the surrounding area for the benefit of the owners of such property and to the detriment of others. In Four States Realty Co. v. City of Baton Rouge, 309 So.2d 659 (La.1975), the court held that rezoning on a piecemeal or spot basis is highly suspect. A city purporting to act under its police powers cannot create in a large area of property zoned in one classification an island of one parcel of land relegated to another zoning classification when no rational reason exists for such a separate classification. In Four States the Supreme Court invalidated action of the City Council of the City of Baton Rouge in rezoning certain lots upon a finding that the action was arbitrary and capricious, which seems to be the real test for determining the validity of zoning action. In the case of Sears, Roebuck & Company v. City of Alexandria, 155 So.2d 776 (La.App.3d Cir. 1963) writ refused 245 La. 83, 157 So.2d 230 (1963), the court explored in depth the subject of spot zoning. The court noted that all so-called spot zoning is not illegal and listed a number of factors to be considered in determining whether so-called spot zoning is invalid.

First of all, it should be noted that the property in question is not being rezoned to a classification different from that of the surrounding area. The zoning classification remains R-l. The use of the property which has been approved, telephone exchange and accessory off-street parking, is consistent with the comprehensive plan of zoning contained in the zoning ordinance in that it is one of the uses permissible in an R-l district, with Board of Appeals approval. The ordinance itself contemplates and gives notice to the public that a telephone exchange is one of the uses permitted in an R-l district.

The approval of the application in this case has benefits both for the neighborhood and the public generally. The neighborhood will benefit in that a serious parking problem will be eliminated. The public generally, including the neighborhood, will benefit in that telephone service will be modernized and improved. No serious detriment to the surrounding property has been proven. The property in question, located on a busy thoroughfare, across the street from a fire station, and a large portion of which is presently being used as a telephone exchange, is reasonably susceptible to the proposed expansion and development. Approval of the special exception use in this case was not arbitrary, unreasonable or capricious, was in the public interest, and was not prohibited spot zoning within the generally accepted meaning of that term.

Parking as an Authorized Special Exception Use

Appellants contend that the zoning ordinance does not authorize a parking lot as a special exception use in an R-l district. If the parking lot were to be considered as a separate and distinct use from the telephone exchange, on a separate and distinct building site, that argument would be correct.

We are not, however, dealing here with two separate uses on two separate building sites. The application is for one contiguous tract of land or building site to be used as a telephone exchange, which necessarily requires some accessory off-street parking. A telephone exchange, and necessarily its accessory off-street parking, is one of the special exception uses specifically authorized by the zoning ordinance. The ordinance specifically defines building site as the land area occupied or to be occupied by a building and its accessory buildings and including such open spaces, yards, minimum area, off-street parking facilities and off-street truck loading facilities as are required by the ordinance.

Appellants argue that there is no off-street parking requirement for a telephone exchange because that particular use is not listed in Section V. of the ordinance dealing with off-street parking. To the contrary, Section V. clearly requires off-street parking for all uses. Section V.A.l. provides that no land shall be used or occupied, no structure shall be erected, altered, used, or occupied and no use shall be operated unless the off-street parking facilities herein required are provided. Section V.A.5. sets forth the amount of off-street parking required for certain listed classifications and provides that the classification of uses listed shall be deemed to include and apply to all uses. A telephone exchange is not specifically listed in the classification of uses, but could come within the classification of commercial or industrial and, if there is any question as to which classification it comes under, the requirement is to be determined by the zoning administrator. In any event, off-street parking is required, is obviously desirable and, therefore, is a permissible use of part of the building site of a telephone exchange authorized as a special exception use in an R-l district.

Variance

Appellants contend that the trial court erred in justifying the action of the Board of Appeals as a “variance” as defined in the zoning ordinance. Although the application requested a special exception and a variance, the action of the Board of Appeals actually constituted the approval of a special exception use. The variance provisions of the zoning ordinance are not applicable and need not be considered.

Supplementary Use Regulations

Appellants contend that the proposed parking lot site does not comply with the supplementary use regulations stipulated in Section III. of the zoning ordinance and, particularly, the supplementary yard regulations. If the parking area were to be considered as a separate building site, this contention might have merit. However, as previously discussed, the parking area is only part of the one building site. Taking the property as a whole the supplementary use regulations are complied with.

Expansion of Nonconforming Use

Appellants contend that the construction of the parking area and addition of the second story to the existing building will constitute a prohibited expansion of a nonconforming structure and nonconforming use. Nonconforming structure and nonconforming use are defined by Section I. of the ordinance as a building or use which lawfully existed on the effective date of the ordinance and which does not conform to the regulations of the district in which it is located. The telephone exchange building constructed prior to the effective date of the comprehensive zoning ordinance, and its use as such, fall within these definitions. Section VI. of the ordinance provides that the lawful operation of a nonconforming use as such use existed on the effective date of the ordinance may be continued. A nonconforming use in a structure may be extended throughout the structure provided no structural alterations, except those required by law or ordinance, are made therein. A nonconforming structure in which a nonconforming use is operated shall not be enlarged or extended. Appellants contend that under the provisions prohibiting expansion of nonconforming structures and uses, the proposed expansion cannot be permitted.

Approval by the Board of Appeals of the use of the property and the building located thereon as a telephone exchange as a special exception use changes the status of the structure and use from that of nonconforming to that of a permitted use. As a permitted use, the addition of the second story and construction of the parking area is permissible.

Under the special exception use provisions of the ordinance the Board of Appeals would have the authority to approve the original use of property in an R-l district as a telephone exchange pursuant to which a telephone exchange building with accessory off-street parking could be constructed. Since the Board has the authority to approve a new and initial use of the property for these purposes, it certainly has the authority to approve the expansion of an existing facility.

The Facility as a “Telephone Exchange”

Appellants contend the existing facility is not a “telephone exchange” as contemplated by the ordinance and as defined by the telephone company itself. The telephone company witnesses called the facility a “central office” and referred to the entire Shreveport-Bossier area as a “telephone exchange.” The facility houses automatic telephone equipment. It does not contain office space as such. The limited number of employees who work there are required to service the equipment. We agree with the trial court that the facility is exactly the type facility contemplated by the term “telephone exchange” as used in the zoning ordinance. The term might not coincide with the jargon of the industry but it coincides with a generally accepted layman’s concept of the meaning of the term.

Contact of Members of the Board of Appeals and City Council

Appellants contend that the telephone company representatives made a concerted effort to and did, in fact, contact the individual members of the Board of Appeals and City Council, outside of the public hearing, in order to influence their decision and that such activity impaired the functioning of the Board and the Council and resulted in a denial of a fair and impartial hearing.

The evidence shows that the telephone company formulated a plan of contacting members of the Board and the Council on a one-on-one basis in an effort to encourage favorable consideration of the application. The evidence does not disclose the exertion of any undue pressure or influence. The testimony affirmatively establishes that the members of the Board and Council were not, in fact, influenced or persuaded by the contacts but exercised their judgment and discretion based on the facts properly presented. The evidence is that members of the zoning authorities are often contacted personally in connection with zoning matters. The exercise of zoning authority is more legislative in nature than judicial or quasi-judicial. It should also be noted that there was evidence of some contact by some opponents with some of the individuals charged with the responsibility of administrative decisions in this case. As noted by the trial judge there was no evidence at all that the contacts made affected the decision of any of these people.

We readily conclude that the opponents were afforded a full and complete opportunity to be heard and that the application was fairly and impartially considered and decided by the administrative officials involved. The judgment decision of the authorities was reasonable and justified by facts in the record. The action was neither arbitrary, discriminatory or unreasonable, nor the result of any undue influence or pressure.

Effect on the Neighborhood

Appellants argue that the trial court erred in finding that the proposed use would not have an adverse effect upon the surrounding residential neighborhood, and property values. At the trial de novo in the district court, both sides presented expert real estate witnesses as to the effect the proposed plans would have on the neighborhood. One witness testified there would be an adverse effect and the other witness testified there would not. Neither witness’s testimony is more persuasive than that of the other. The trial court correctly held that appellants failed to prove any substantial adverse effect on the neighborhood.

Conclusion

The role of the court in reviewing a zoning case was well-stated in Reeves v. North Shreve Baptist Church, supra:

“It is a well established legal principle that on review of the proceedings and decisions of zoning boards and officers, the Court may inquire into any conduct of the board or officer in rendering a decision which is contrary to law or unauthorized by law; but the court ordinarily will not interfere unless such decision is illegal, arbitrary or unreasonable as a matter of law.”

The actions of the Board of Appeals and City Council were not illegal, arbitrary or unreasonable. They were justified by reasonable evaluations of both the zoning ordinance and the existing factual situation.

For the reasons assigned, the judgment of the district court is affirmed at appellants’ costs.

Affirmed.

      . Act 34 of 1954 authorized metropolitan planning and zoning in the City of Shreveport and environs of Caddo Parish. Act 52 of 1962 contained substantially identical provisions and appears in the Revised Statutes as LSA-R.S. 33:140.1 et seq. The 1962 Act provided that it should take effect upon adoption of the amendment to Article XIV, Sec. 29 of the La.Const. of 1921 proposed by Act 529 of 1962. The amendment was adopted. The 1962 Act also provided that it was to be construed supple-mentarily to Act 34 of 1954, which was not to be considered repealed. Constitutional authority for zoning by municipalities was provided in Article XIV, Sec. 29 of La.Const. of 1921, as amended. Constitutional authority for zoning by local governmental subdivisions is now contained in Article VI, Sec. 17 of the La.Const. of 1974.