author: BEER, Judge. LEMMON, Judge

text:
    Stanley R. SIFERS v. EXXON CORPORATION.
    No. 7602.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1976.
    Rehearing Denied Nov. 16, 1976.

      Carl & Roussel, James H. Leveque, III, New Orleans, for plaintiff-appellant.
    Bernard J. Caillouet, E. Burt Harris, El-liotte M. Harold, Jr., New Orleans, for defendant-appellee.
    Before LEMMON, GULOTTA and BEER, JJ.
   BEER, Judge.

Plaintiff-appellant, Stanley R. Sifers, instituted this suit on September 2, 1975, seeking attorney fees and penalty wages from his former employer, defendant-appel-lee, Exxon Corporation, alleging their failure to make timely payment of wages due.

Sifers alleged that he was employed by Exxon as a mechanic for some time prior to April 18, 1975, on which date he was laid off and that, at the time of this termination, he was owed $62.45 in wages. On May 8, 1975, Exxon issued a check to Sifers in the amount of $30.02. On May 10, 1975, Sifers made demand, at his former employer’s place of business (where he was ordinarily and customarily paid) for the remainder, $32.43.

Subsequent to his demand of May 10, 1975, Sifers repeated his demand for the amount due, both personally at Exxon’s place of business and through the Louisiana State Department of Labor, allegedly to no avail. On July 18, 1975, Exxon wrote to Sifers acknowledging that they owed him $32.43. On July 21, 1975, Sifers received and cashed a check from them in that amount.

Basically, Exxon’s exception contends that since, at the time of filing of the petition, all the wages due Sifers had been paid, he is due nothing further and has no cause of action.

Judgment was rendered maintaining the exception and dismissing Sifers’ claim. From that adverse judgment, he appeals.

Sifers contends that his acceptance of the overdue wages neither estopped him from claiming the penalties and attorneys’ fees provided under LSA-R.S. 23:631 and 632, nor deprive him of a cause of action for same. He argues that statutory “penalty wages” are due an employee even though the actual delinquent wages were paid prior to the expiration of the 90-day penalty period but subsequent to the 24-hour grace period. He avers that late payment has the effect of terminating the penalty period, not negating the penalties altogether and that “penalty wages” are, nevertheless, wages.

On the other hand, Exxon urges the existence of a good faith dispute over wages which was resolved in favor of Sifers after investigation and prior to suit. They claim an “equitable defense” which exempts the employer from application of the statute. Finally, Exxon points out that even if penalty wages are recoverable, attorneys’ fees could not be awarded since the suit was not for recovery of “unpaid wages” but only for penalties.

Since the statutory provisions have been termed as coercive or penal in nature, they must be strictly construed, and may not be extended beyond the plain wording of the statute, yielding in interpretation and application to equitable defenses. Scallan v. Mark Petroleum Corporation, 303 So.2d 498 (La.App. 2nd Cir., 1974), writ denied, La., 307 So.2d 370. Defenses have been recognized as equitable where the employer had a good faith belief that the discharged employee had embezzled (Foreman v. Pelican Stores, 3rd Cir., 1945, La. App., 21 So.2d 64); where neither employee nor employer knew the amount of wages due to the employee (Bridges v. McClenaghan, 2nd Cir., 1943, La.App., 14 So.2d 652); where laborer’s demand exceeded that for which he was entitled under the employment contract (Duke v. Ford, Bacon and Davis, 2nd Cir., 1932, 19 La.App. 27, 138 So. 675); and where there was a bona fide good faith dispute regarding the amount owed (Robertson v. International Motor Company of Houma, Inc., 1st Cir., 1975, La.App., 314 So.2d 531).

Exxon cites Robertson, supra, in support of their contention that the delinquent wages were in dispute prior to payment and thus their actions were not in bad faith, arbitrary, nor unreasonable.

However, Robertson is distinguishable:

1. Unlike the case at bar, Robertson was not a hearing on an exception of no cause of action, wherein all well-pleaded facts in the petition are conceded as correct; and

2. In Robertson, the trial judge found and the appellate court affirmed, as a matter of fact, that the evidence supported the conclusion that the employer was in good faith in disputing the wages and hence the delay in payment was justified, whereas the petition here does not disclose any grounds for justifying Exxon’s delay in paying Si-fers his wages.

In Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.Sup.Ct., 1975), the court observed:

“The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition. The correctness of the well-pleaded allegations of fact is conceded, the issue is whether the face of the petition presents a ease which legally entitles the mover to the redress sought. It is the sufficiency of the petition or motion in .law which is put at issue by the exception. Rebman v. Reed, 286 So.2d 341 (La., 1973); Louisiana State Board of Medical Examiners v. England, 252 La. 1000, 215 So.2d 640 (1968).”

Thus, we accept as true, for the purpose of our deliberation, only the allegations of fact stated in Sifers’ petition.

Appellee cites Harrison v. First National Funeral Homes, Inc., 244 So.2d 102 (La.App. 3rd Cir., 1971), for the proposition that the two requisite elements of proof to a claim for penalties and attorneys’ fees are: 1) that wages actually are owed, and 2) that such wages have not been paid. They aver that “appellant’s petition met neither burden here.” Harrison is not applicable, for in that case, there was a finding of a good faith dispute.

In Whitehead v. E. J. Deas Company, Inc., 9 La.App. 47, 118 So. 856 (2nd Cir., 1928), the employer offered to pay employee the wages owed, but employee refused to accept same. The court concluded that the employee could not recover penalties after the date of the offer to pay the amount of wages claimed but also held “as to the penalties which had accumulated prior to the date of the■ offer to pay,’’ that the employer was liable for such wages. Whitehead was followed by Neeley v. Magnolia Gas Company, 15 La.App. 224, 131 So. 589 (2nd Cir., 1930), which indicated clearly that a discharged employee could recover penalty wages up to the date when the employer tendered payment. Also, see Hazel v. Robinson and Young, 187 La. 51, 174 So. 105 (La.Sup.Ct., 1937).

We conclude that the plain meaning of “penalty wages” contemplates recovery of same even if the regular wages initially sought were, in fact, paid after demand but prior to suit.

Regarding the separate question of attorneys’ fees, Exxon contends “(i)t is obvious that if no unpaid wages are recovered, no attorneys’ fees are to be granted.” This presumes that “unpaid wages” do not include “penalty wages.” Appellee’s position that the “penalty wages” are not “wages” such as to trigger the application of the attorneys’ fees proviso of LSA-R.S. 23:632 is unpersuasive. The statute, as amended in 1964, provides for attorneys’ fees in the event “a well-founded suit for any unpaid wages whatsoever” be filed by the laborer or employee. Prior to said amendment, attorneys’ fees were only allowed in the event “a just suit” be filed. The purpose of the amendment inter alia was “. . .to provide that the employer’s liability for penalty wages shall be limited to 90 days and to provide for attorneys’ fees for the employee.” Additionally, the body of Section 632, as amended, specifically refers to the penalty to be imposed as “penalty wages.” Finally, the amended Section 632 provides for attorneys’ fees “. . .in the event a well-founded suit for any unpaid wages whatsoever be filed . ” The modifying word “whatsoever” has been principally defined as meaning “whatever” which in turn, as an adjective, has a first meaning: “of no matter what type, degree, quality, etc.” Webster’s New World Dictionary, College Edition. The phrase “unpaid wages whatsoever” when read in pari materia with the reference to “penalty wages” in the preface to the 1964 Amendment as well as Section 632 proper, reflects a legislative intendment that the word “wages” in the last sentence of Section 632, is not to be construed so narrowly as to exclude what might be referred to as a “penalty wage.” Accordingly, reasonable attorneys’ fees may be awarded by the trial court in the event of a well-founded suit for penalty wages. See Rubenstein Bros. v. LaForte, La.App., 320 So.2d 303 (4th Cir., 1975).

In Hero Lands Company, supra, the Supreme Court reiterated the rule of law that:

“(i)f a petition states a cause of action as to any ground or portion of the demand, the exception of no cause of action must be overruled. Louisiana & Arkansas Railway Company v. Goslin, 258 La. 530, 246 So.2d 852 (1971); Burns v. Genovese, 254 La. 237, 223 So.2d 160 (1969); Little v. Haik, 246 La. 121, 163 So.2d 558 (1964); Elliott v. Dupuy, 242 La. 173, 135 So.2d 54 (1961); United Mine Workers v. Arkansas Oak Flooring Co., 238 La. 108, 113 So.2d 899 (1959).” (Emphasis supplied.)

We accept, as true, all well-pleaded facts in plaintiff’s petition for the purpose of considering the exception of no cause of action. The petition, on its face, states a cause of action. The trial court erred in sustaining Exxon’s exception of no cause of action. The exception is overruled and the matter is remanded for trial on the merits with respect to all issues raised in Sifers’ original petition. Costs of this appeal are to be paid by defendant-appellee.

REVERSED AND REMANDED

LEMMON, J., concurs and assigns reasons.

LEMMON, Judge

(concurring and assigning reasons).

I agree that the petition states a cause of action to recover the penalty imposed by R.S. 23:632, for failure to comply with R.S. 23:631. This cause of action (if proved at a trial on the merits) accrued when Exxon failed to pay timely “the amount due under the terms of employment”, and subsequent untimely payment of that amount only did not affect the accrued cause of action for the statutory penalty.

The legal issue of entitlement to attorney’s fees is not nearly so clear, and I deem it preferable to consider this difficult issue after a full hearing in the trial court and briefing and oral argument in this court, especially since the case must be now tried on the merits and the attorney’s fees issue will entail virtually no additional expense or delay.

The penalty provision was designed to insure prompt payment of a well-founded claim for wages, whereas the provision for attorney’s fees was designed to fund prosecution of these claims which often are not otherwise economically feasible. If we allowed untimely payment of wages to erase the cause of action for accrued statutory penalties, we would defeat the purpose of the penalty provision. But I am not sure that the same rationale applies to a demand for attorney’s fees in a suit filed after the wages have already been paid, especially if the claimant did not hire an attorney until after payment of the wages. The important legislative intent question as to whether the provision for attorney’s fees was designed to fund prosecution of a claim solely for statutory penalties is one which is more appropriate for full consideration at an appeal after a trial on the merits than for piecemeal consideration on exceptions.

      . “§631. Discharge or resignation of employees; payment within 24 hours añer termination of employment

      “It shall be the duty of every person, employing laborers or other employees of any kind whatever when discharging any laborer or other employee, or when any such laborer or employee has resigned, within twenty-four hours after such discharge or resignation, to pay the laborer or employee the amount due under the terms of employment whether the equipment is by the day, week or month, upon demand being made upon the employer by the discharged or resigned laborer or employee at the place where the employee or laborer is usually paid.” “§ 632. Liability of employer for failure to pay; attorneys’ fees

      “Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety day’s wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorneys’ fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after twenty-four hours shall have elapsed from time of making the first demand following discharge or resignation. As amended Acts 1964, No. 422, Sec. 1.”


source: Caselaw Access Project

author: MORIAL, Judge.

license: Public Domain

text:
    Charlie WEBB, Jr., et al. v. Joseph YOUNG, Jr.
    No. 7614.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1976.
    Rehearing Denied Nov. 16, 1976.
    Writ Refused Jan. 19,1977.

      William W. Rosen, New Orleans, for plaintiffs-appellants.
    O’Keefe, O’Keefe & Berrigan, Peggy M. Vicknair, New Orleans, for defendant-ap-pellee.
    Before STOULIG, BOUTALL and MORIAL, JJ.
   MORIAL, Judge.

Plaintiffs, Charlie Webb and his wife Gloria individually and as natural tutrix of her two minor daughters, appeal the judgment dismissing their suit for damages for breach of contract.

Plaintiffs entered into an agreement to purchase a house with defendant Joseph Young, Jr., the operator of Garden Homes, on July 6, 1968. The house had not yet been built, but was to be located at 1004 Marshall Street, Marrero, Louisiana. The agreement provided for a purchase price of $21,850.00 on the terms of $500.00 cash of which $300.00 was paid on the date of the agreement with the balance of $200.00 to be paid on July 9, 1968. The balance of the purchase price was to be financed by a first and second mortgage. Defendant was to arrange the financing. Plaintiffs were to pay the closing costs at the act of sale.

On or about December 18, 1968 the plaintiffs were informed that the house was ready for occupancy and defendant was prepared to pass the act of sale. However, plaintiffs were only able to pay $200.00 at the time leaving a balance of $560.00 due in closing costs. The parties then agreed that the Webbs would be allowed to occupy the house with the condition that monthly payments would be made. At the time the Webbs were able to provide the closing costs in full, the act of sale would be passed. Any payments made by the Webbs prior to the act of sale were to be attributed to the mortgage the plaintiffs were to grant at the time of the sale. Plaintiffs received a book from defendant which stated: “Amount, $23,000.00, rate 8% Payments, $197.73 Per Mo.” and showed the distribution of the monthly payment as follows: “Payment 185.07 mo. Insurance 7.66 Taxes 5.00.” The Webbs lived in the house for approximately seven months without ever fully meeting a monthly payment or paying the closing costs. In late May or early June, defendant Young placed an eviction notice on the door of the house. They vacated in early or mid-July 1969. At that point they had paid defendant a total amount of $1,190.00.

Plaintiffs seek a return of all monies paid to Young damages of approximately $19,-000.00 and attorney’s fees.

Plaintiffs claim damages for mental and physical discomfort suffered as a result of the allegedly defective condition of the house. They allege that the central heating and cooling system did not function; that there was no electricity or cooking facilities available and other defects. Plaintiffs contend defendant embarrassed and humiliated them by placing a notice of eviction on their door.

Plaintiffs claim they detrimentally relied on defendant to obtain financing for them. They allege that they were unaware of the need to pass an act of sale or that further action was necessary on their part to conclude the sale. Plaintiffs deny any rental agreement and contend that defendant has no grounds to recover on a quantum meruit basis.

Defendant contends that he had arranged financing and was prepared to pass the act of sale in late December 1968. He contends that when plaintiffs could not provide the closing costs, the parties entered into an agreement whereby plaintiffs could occupy the premises on the basis of a month to month rental.

Defendant agreed to credit the monthly rental payments to the mortgage when appellants provided the costs and the act of sale and mortgage were passed. Defendant urges in the alternative that he is entitled to the monies he received on a quantum meruit basis.

The trial judge concluded that plaintiffs failed to prove their case by a preponderance of the evidence. The trial judge found that plaintiffs failed to produce sufficient evidence to support their claim as to the defective condition of the house at the time they took occupancy.

The issues presented to this court on appeal are:

(1) whether or not plaintiffs are entitled to damages for breach of warranty; (2) whether or not defendant breached the contract by failing to arrange financing or by deceiving plaintiffs as to its effect; and (3) whether or not defendant was entitled to recover on the basis of a lease agreement or on a quantum meruit basis; and, if so, what amount?

Plaintiffs have no basis on which to assert an action in warranty. Recovery on the ground of breach of warranty is predicated on the existence of a sale. See LSA-R.C.C. Article 2475, et seq. The cases cited by plaintiffs involving warranty pertain to situations where an actual sale had occurred. Schamens v. Crow, 326 So.2d 621 (La.App. 2 Cir. 1976); Rotolo v. Stewart, 127 So.2d 24 (La.App. 1 Cir. 1961).

An agreement to sell is not a sale where the execution of a later final act of sale is contemplated by the parties. It is not translative of title. Davis v. McCain, 171 La. 1011, 132 So. 758 (1931); Gibsland Supply Co. v. American Employers Insurance Co., 242 So.2d 310 (La.App. 2 Cir. 1970), writs denied, 257 La. 987, 244 So.2d 858 (1971). The passage of the act of sale was conditioned on the payment of closing costs which appellants did not pay. A sale did not occur. LSA — R.C.C. Article 2471. Therefore, plaintiffs’ claim in warranty is without merit.

There is a conflict in the evidence as to whether or not defendant had arranged financing. The trial judge found that defendant had arranged the financing and was ready to pass the act of sale. Where there is a conflict in evidence, a reviewing court must give great weight to the findings of the trial court. Curole v. Acosta, 303 So.2d 530 (La.App. 1 Cir. 1974).

We do not find that plaintiffs were deceived by defendant as to their obligations under the agreement. Plaintiffs’ counsel argues that his clients did not realize that the agreement to purchase was not the final act transferring title. The record shows that both Mr. and Mrs. Webb read the agreement. Mrs. Webb had a 12th grade education. It is apparent from the testimony of Mrs. Webb that the couple realized the necessity of paying the closing costs in order to become the owner and retain possession of the house. They requested an extension of time in which to obtain the closing costs when Young told them he was prepared to pass the act of sale. On cross-examination plaintiffs’ lawyer asked Mr. Young why he had not returned the $500.00 deposit when they could not purchase the house in December. He replied: “If they would not have asked me to go along and let them move into the house and occupy it until they got their closing costs together we would have reached some distribution of the $500.00. I went along with them.” Mrs. Webb’s testimony affirms his statement. On cross-examination defendant’s lawyer asked her:

Q. By the document, the Purchase Agreement, you all were to pay the closing costs at the act of sale, is that correct?

A. Well, we was supposed, but we didn’t have it then when it come up.

Q. And then you asked Mr. Young for an extension of time and he agreed to that?

A. That’s right.

Q. He agreed to let you live in the house, isn’t that correct?

A. That’s right.

It is obvious that the Webbs were aware of a further financial obligation on their part under the purchase agreement. They may not have understood all the technicalities involved in an act of sale; however, they were aware that one would take place when they were able to pay the closing costs.

There is further conflict in the evidence as to whether or not there was a rental agreement between the parties.

Defendant Young in his answer alleges a rental agreement calling for a monthly payment of $185.00 to have been made between the parties. In the alternative he asks to keep the monies alleging that he has a right to them on the basis of quantum meruit. The testimony of defendant reflects that he believed some type of agreement in the nature of a lease existed between the parties. He was questioned by plaintiffs’ counsel as to the nature of the agreement:

Q. What you are saying is really you had a mortgage payment, is that right?

The Court: He didn’t say that.

A. No. I said that I agreed to rent them the house at the same amount it would cost them if they had their closing costs and took title. I would rent it to them until such time as they got the balance of the closing costs together to take title.

However, there is some confusion in the record as to the exact amount agreed upon by the parties. In his answer, defendant alleges that $185.00 was the amount agreed upon. However, the actual amount due as listed in the payment book received by plaintiffs was $197.73. There can be no contract or lease in the absence of a stipulation or agreement between the parties as to the amount of rental to be paid. McCain v. McCain Bros., 165 La. 884, 116 So. 221 (1928); LSA-R.C.C. Article 2671; Groghan v. Billingsley, La.App., 313 So.2d 255 (4 Cir. 1975), writs refused La., 318 So.2d 46 (1975). Therefore, we do not find the presence of a lease agreement.

However, while it is true that mere occupancy does not create a lessor-lessee relationship; recovery may be allowed on a quantum meruit basis where a fair rental value is alleged and proven. Faroldi v. Nungesser, 144 So.2d 568 (La.App. 4 Cir. 1962).

In Groghan, supra, a vendor-builder was allowed to collect a monthly rental for the period of occupancy of a house by a prospective purchaser on a quantum meruit basis in spite of the defective condition of the house. The court there based the award upon the fair market value of a house of the nature which was occupied; it based its award in part upon a concession by the defendants that some amount was owed. The transcript herein reflects the recognition of plaintiffs that some amount was due for the occupancy. On cross examination defendant’s attorney questioned Mrs. Webb:

Q. You paid him that $100.00 but you still had not gotten your electricity?

A. That’s right.

Q. You were still living between houses so to speak?

A. That’s right.

Q. Yet you paid him that $100.00.

A. Yeah, we couldn’t live there for nothing.

In Faroldi, supra, recovery was not allowed on a quantum meruit basis because plaintiffs failed to allege and prove the rental value of the property occupied. Mr. Young alleged in his answer that $185.00 constituted a fair rental value on the house. At trial he implied that he felt $197.00 was a fair amount to charge plaintiffs on a monthly basis.

The total amount paid to defendant by the Webbs was $1,190.00. Based on a seven month occupancy, they paid $170.00 per month rent. We find that this amount is not unreasonable.

Under the circumstances herein, we conclude that on the basis of quantum me-ruit defendant is entitled to retain the monies paid to him.

The judgment of the district court is affirmed.

AFFIRMED.


author:
GULOTTA, Judge. LEMMON, Judge
      BEER, Judge

text:
    Carrie Skipper, wife of/and Hal SKIPPER, Jr. v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 7624.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1976.
    Rehearing Denied Nov. 16, 1976.

      Anthony J. Vesich, Jr., New Orleans, for plaintiffs-appellees.
    Floyd F. Greene, New Orleans, for defendant-appellant.
    Before LEMMON, GULOTTA and BEER, JJ.
   GULOTTA, Judge.

This suit grows out of an incident on defendant’s Jackson Avenue bus, which was stopped in the course of picking up and discharging passengers at Canal and Bar-onne Streets on February 20, 1974, at approximately 9:00 or 9:15 p. m. Defendant appeals from a judgment in favor of plaintiff who sustained injury to her right ankle and knee when she was pushed to the floor by an unruly crowd of boarding teenagers who rushed on the bus after she deposited her fare and while she awaited a transfer. Plaintiff’s husband joins her in this action and seeks reimbursement for her medical expenses. Quantum is not at issue.

Plaintiff and two companions boarded the bus along with a number of other people, including a large group of teenagers, shortly after a carnival parade had passed on Canal Street. According to plaintiff’s version, she was preceded by a number of adolescents who avoided paying their fares by rushing onto the bus. While plaintiff was waiting for a transfer, the bus driver left his seat and, without closing the front door of the bus, went to the rear of the vehicle to evict passengers who had unlawfully entered through the rear door. While the driver was at the rear of the bus, several more teenagers charged through the open front door and knocked plaintiff to the floor.

The bus driver concedes that non-fare-paying passengers were rushing into the bus through both doors; and admits that he did not close the front door when he went to the rear. He denies, however, any knowledge that plaintiff was knocked down or injured or that he was told of any such incident.

In awarding a judgment in favor of plaintiff, the trial judge found that the bus driver should have closed the front door before confronting the non-paying passengers at the rear of the bus. He further concluded that the driver’s failure to close the door placed plaintiff in “an unnecessary position of peril”. We agree. Accordingly, we affirm.

Defendant complains, on appeal: 1) that the trial judge erred in finding the driver negligent for not closing the door before proceeding to the rear of the bus; 2) that it did not violate the high degree of care owed by a common carrier; and, 3) that it is not liable for the acts of third persons or other passengers because the driver had no knowledge nor could have reasonably anticipated that the conduct of fellow passengers endangered the safety of plaintiff in this case. We disagree.

It is well settled that a common carrier is not an insurer of the safety of its passengers. However, it is also well settled that a common carrier “is liable for the slightest negligence which contributes to an accident that causes injury to a passenger .” Gross v. Teche Lines, 207 La. 354, 21 So.2d 378, 382 (1945). The duty placed on the carrier is to exercise “the highest degree of vigilance, care and precaution”. Aime v. Hebert, 282 So.2d 566, 568 (La.App. 4th Cir. 1973). In cases where a passenger is injured by another passenger, the high duty of care placed on a common carrier is violated where there exists reason on the part of the driver to anticipate or foresee that injury may occur to a passenger.

In Aime v. Hebert, supra, we set forth the test for holding a carrier liable in these cases. In Aime, we said:

“ * * * Such a carrier can be liable for an assault by one passenger on another passenger where there is reason for the carrier employee to anticipate the assault and a failure on his part to take such action as may be practicable under the circumstances to prevent the assault from being committed or to interfere with its execution.”

In his written reasons for judgment, the trial judge stated, “The parade crowd was obviously unruly.” The record supports this conclusion. Ruth Gwin, plaintiff’s companion and a passenger on the bus at the time of the incident, noted that people were getting on the bus “in droves”. She remarked that there was “a lot of carrying on” and that the crowd of teenagers “was cursing the driver and cursing everybody else”. Allen Goldsmith, the bus driver, stated that “everybody was trying to get on the bus at the same time, pushing each other”. He admitted that people were surging in through both doors without paying, and he observed that “it was hard to stop them”. . He further admitted that, before he went to the back of the bus, some non-paying teenagers had already rushed past him.

It was entirely foreseeable that leaving the front door open would expose a passenger, waiting the driver’s return, to the risk of being pushed by unruly passengers entering the bus through the front door. The driver simply should have closed the front door before seeking to evict passengers entering the rear of the bus. We conclude, under the circumstances, that plaintiff’s injury comes within the ambit of foreseeable risk and that defendant failed to observe the high degree of care placed upon a common carrier.

We distinguish this case from our recent decision, Carter v. New Orleans Public Service, Inc., 335 So.2d 105 (La.App. 4th Cir. 1976). In.Carter, the record supported the trial judge’s finding that the crowd of youths on the bus appeared playful rather than threatening or abusive upon entering the bus. Though the youths in that case committed an assault on the passenger shortly before they left the bus, we concluded that the bus driver did not breach the duty placed upon a common carrier. Having taken the youths aboard, he was not negligent in beginning to drive the bus. He could not have foreseen that the apparently playful teenagers would later commit an assault on a fare-paying passenger. Furthermore, we found that the driver acted prudently in that case once he became aware of the attack.

In the instant case, however, the facts are different: the teenagers rushing on board the bus were boisterous and threatening. Accordingly, we conclude the high degree of care placed upon a common carrier was violated when the driver failed to close the front door before he moved to the rear of the bus. Having so concluded, we affirm the judgment of the trial court.

AFFIRMED.

LEMMON, J., subscribes to the judgment and assigns additional concurring reasons.

BEER, J., concurs.

LEMMON, Judge

(subscribing to the judgment and assigning additional concurring reasons).

The test of negligence is reasonableness. For a duty-risk analysis, the test must be applied both to the duty imposed by the circumstances and the conduct in response to that duty.

The circumstance of the pushing and surging of the unruly crowd at the door of the bus, behind plaintiff who was standing there waiting for a transfer, involved the risk that the crowd would rush in and injure plaintiff if the door were left open and unattended. Existence of this risk imposed a corresponding duty on the part of the bus driver to take reasonable action to avoid the risk (as by closing the door when leaving it unattended). The failure to take reasonable action breached that duty and resulted in damages to plaintiff, and since there was an “ease of association” between the risk and the duty, liability should be imposed. Hill v. Lundin & Associates, 260 La. 542, 256 So.2d 620 (1972).

BEER, Judge

(concurring).

I concur, being of the view that Goldsmith’s acknowledged failure, under the circumstances, to close the front door prior to going to the rear of the bus distinguishes Carter v. New Orleans Public Service, Inc. and supports the conclusion reached by my brothers.

Had the incident occurred under identical circumstances but with Goldsmith in the driver’s seat (and thus, ostensibly, in control), Carter should, in my view, apply.

I point this out in order to make it clear that neither New Orleans Public Service, Inc. or any other carrier similarly situated, should, in my belief, be placed in the anomalous position of providing full access public transportation on one hand and being required, on the other hand, to unalterably guarantee protection from all of the vagaries of that public. We would be unrealistic if we failed to acknowledge the existence of present-day conditions which can and sometime do prevent a bus driver from effectively coping with a totally irresponsible group while still trying, as best he can, to make his bus available to the public. Present-day public carriers have neither the fiscal ability to attract — nor may they undertake the painstaking screening processes to limit employment to — bus drivers who are experts in crowd psychology, passenger protection and split-second decision making involving complex matters with far-reaching implications.

The sways and tensions of our times— particularly as they translate to crowd control in the public sector — are awesomely complex in their moral and legal implications, just as the fiscal problems of continuing to provide public transportation are awesome in their stark simplicity. We must be wary of imposing requirements no longer realistic in the premises lest we require more of our system of public transportation than it can possibly deliver.


author: GULOTTA, Judge. LEMMON, Judge

text:
    Julius R. FLYNN v. CENTRAL REALTY OF LOUISIANA, INC.
    No. 7629.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1976.
    Rehearing Denied Nov. 16, 1976.
    Writ Refused Jan. 14, 1977.

      New Orleans Legal Assistance Corp., Barbara Hausman-Smith, New Orleans, for plaintiff-appellant.
    Jacob J. Cohen, in pro. per.
    Before LEMMON, GULOTTA and BEER, JJ.
   GULOTTA, Judge.

Plaintiff, a lessee, appeals from a dismissal of his claim for damages against the lessor because of lessor’s alleged failure to comply with LSA-R.S. 9:3251 et seq., requiring the landlord to forward to the tenant, within one month after the date the tenancy terminates, an itemized statement accounting for the retained proceeds of a rental deposit and giving the reasons therefor. We affirm.

The facts are that plaintiff posted a $25.00 deposit when he rented the premises on a month-to-month basis on July 7, 1972; that he vacated the premises on July 12, 1975; and that the monthly rent in the sum of $79.00 was paid through June, 1975. In response to a request for a return of the deposit, lessor orally informed lessee-plaintiff that the deposit was being applied against the rent due for one half of the month of July and, accordingly, that plaintiff was not entitled to a return of the deposit.

On August 20, 1975, a written request was made to the lessor for return of the security deposit. This request was received by the lessor on August 21. The lessor testified that he made no written response to the demand for the return of the deposit.

The trial judge concluded that plaintiff was not entitled to return of the deposit or statutory damages for the reason that he had been timely informed by the lessor that the deposit was being deducted from the rent due for the month of July.

We are confronted with the question whether a timely oral explanation by a lessor to a lessee that the return of a deposit is not due lessee, will suffice as a satisfactory response to a subsequent written demand for return of the deposit.

The statute clearly contemplates, as plaintiff argues on appeal, a response in writing. The statute (LSA-R.S. 9:3251) requires that the lessor “shall forward to the tenant” a statement accounting for the proceeds and giving reasons for the retention of the deposit.

It would appear, on the face of the statute, that anything less than a response in writing would not suffice. However, the record is clear that several months prior to Flynn’s leaving the premises in mid-July, he had been asked to leave by the lessor. Jacob Cohen, president of Central Realty, testified that several teenagers in Flynn’s family were living in the apartment and were “terrorizing the neighbors.” Cohen testified further that Flynn knew “long ahead of time” of Central’s desire that he leave the premises or get rid of the teenagers. On June 4, 1975, Flynn was served with a notice to vacate. Though he had paid rent through the end of June, Flynn remained in the apartment until July 12 when he vacated the premises. Rent in excess, of the $25.00 deposit was owed from July 1 through July 12. Not disputed also is the fact that Cohen timely explained to plaintiff that the deposit was being applied to July’s rent.

Although the language of the statute is clear, when we consider the facts surrounding the instant case and recognize that plaintiff’s petition was not filed in good faith, we are led to conclude that the legislature could not have contemplated recovery by a lessee against a lessor under these circumstances. Confining our decision to the narrow facts of the instant case, we conclude that the purposes of the statute were met by the lessor’s oral explanation of his retention of the rent deposit. This is not to say that an oral explanation will suffice in every case. To so hold would defeat the clear language of the statute. Accordingly, the judgment is affirmed.

AFFIRMED.

LEMMON, J., concurs and assigns reasons.

LEMMON, Judge

(concurs).

I reach the same result from a slightly different approach,

This suit asserts a claim for return of a damage deposit which plaintiff knew was not due. Although plaintiff informed his lawyer that he had moved from the apartment in June, he knew that he had moved on July 11 or 12 and that the rent had been paid only through July 1. Therefore, plaintiff’s institution of this litigation was not based on a good faith dispute over whether the deposit should be returned, but rather was based on a technical non-compliance with the statutory requirement of a written itemized statement accounting for the retained deposit. Such a demand pokes fun at the legislative statute and at the judicial process.

Under all the circumstances of this case (one circumstance being that defendant furnished a verbal explanation to plaintiff and his lawyer), plaintiff is not entitled to statutory damage for technical non-compliance with the statute. Indeed, the circumstances of this case justify condemning plaintiff to pay costs and attorney’s fees under R.S. 9:3252.

      . LSA-R.S. 9:3251 reads as follows:
      § 3251. Lessee’s deposit to secure lease; retention by lessor; itemized statement by lessor

      “Any advance or deposit of money furnished by a tenant or lessee to a landlord or lessor to secure the performance of any part of a written or oral lease or rental agreement shall be returned to the tenant or lessee of dwelling premises within one month after the lease shall terminate, except that the landlord or lessor may retain all or any portion of the advance or deposit as is reasonably necessary to remedy a default of the tenant or to remedy unreasonable wear to the premises. If any portion of an advance or deposit is retained by a landlord or lessor, he shall forward to the tenant or lessee, within one month after the date the tenancy terminates, an itemized statement accounting for the proceeds which are retained and giving the reasons therefor. The tenant shall furnish lessor a forwarding address at the termination of the lease, to which such statements may be sent.
      “The foregoing provisions shall not apply when the tenant abandons the premises, either without giving notice as required, or prior to the termination of the lease.”
      LSA-R.S. 9:3252 reads as follows:
      § 3252. Damages

      “The willful failure to comply with R.S. 9:3251 shall give the tenant or lessee the right to recover actual damages or two hundred dollars, whichever is greater, from the landlord or lessor. Failure to remit within thirty days after written demand for a refund shall constitute willful failure.”

      . Attached to defendant-lessor’s brief is a copy of a letter dated September 16, 1975, signed by the secretary of Central Realty of Louisiana, Inc. and directed to plaintiff. It reads as follows: “Please be informed that you forfeit your $25.00 security deposit for 1718 Josephine because You owed V2 months’ rent ($39.75) plus court costs.” The letter was not introduced into evidence at trial and we do not consider it in our disposition.

      . In his petition, plaintiff stated that he vacated the apartment on June 14, 1975. However, he admitted in his testimony that he vacated the apartment in July, 1975, and that he had made a mistake in telling his legal counsel that he had moved out in June. Central Realty’s records show that he moved out on July 12.


author: BOUTALL, Judge.

text:
    Anthony L. PALAMA v. Elsie Cecile Dobard, wife of Anthony L. PALAMA.
    No. 7639.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1976.
    Rehearing Denied Nov. 16, 1976.

      Patrick M. Reily of Morrison & Reily, New Orleans, for Anthony L. Palama, plaintiff-appellant.
    Gibson Tucker, Jr., New Orleans, for Elsie Cecile Dobard, defendant-appellee.
    Before STOULIG, BOUTALL and MORIAL, JJ.
   BOUTALL, Judge.

Plaintiff-appellant, Anthony L. Palama, appeals a judgment of the 25th Judicial District Court awarding the defendant-ap-pellee, Elsie Cecile Dobard, $8,450.00 in past due alimony pendente lite and making such judgment executory. Plaintiff appeals seeking reversal of this judgment and seeking a decision on a rule to reduce alimony which he filed. It is necessary to set out the procedural steps leading to this judgment.

Plaintiff filed suit for divorce based on two years separation in July, 1972. Alimony pendente lite was awarded in September of 1972 in the amount of $325.00 per month. Final judgment of divorce was rendered on June 5, 1974 in favor of the plaintiff, Anthony L. Palama, and decreeing the defendant, Mrs. Palama, to be at fault so as to bar her from receiving alimony after divorce. At the trial on the merits, the court simultaneously tried a rule to reduce alimony and a rule for arrearage of alimony pendente lite for the month of August, 1973. The judgment of the trial court made no mention of either the rule for arrearage nor of the rule to reduce, but granted Mr. Palama credit against the community for all alimony payments previously paid.

Defendant appealed suspensively the judgment of divorce and ancillary matters, and plaintiff devolutively appealed that portion of the divorce judgment concerning credit to the community against his separate estate. On appeal, this court (Palama v. Palama, La.App., 323 So.2d 823 (1975) affirmed the judgment of divorce and fault, but reversed the trial court’s allowance of credit for alimony pendente lite paid since the filing of the suit against the wife’s share of the community.

Pending that appeal, the defendant brought a rule for contempt and accumulation of alimony pendente lite which, together with “all rules relating to alimony”, were tried September 22, 1975. The present appeal by the plaintiff is from that judgment.

The issues presented to this court in this appeal concern the status of the wife’s request for rule to accumulate alimony and the husband’s request for a rule to reduce alimony.

In considering those issues, the first question to be answered is the availability of alimony pendente lite to the defendant for the period from August 1,1973, through September 22, 1975. Appellant contends that the trial court erred in awarding alimony pendente lite for a period beyond the trial court judgment of divorce. The jurisprudence' has held that alimony pendente lite continues to accrue until the final disposition of the appeal of the judgment of divorce. Cousin v. Cousin, La.App., 327 So.2d 138 (1976), Viser v. Viser, 243 La. 706, 146 So.2d 409 (1962). In the case here on appeal the judgment did not become final until February, 1976, when the Louisiana Supreme Court denied writs. La. 326 So.2d 381. Accordingly, the trial judge did not err in awarding accumulate, alimony pen-dente lite up to the September 1975 date of the judgment on all rules relating to alimony.

The second question to be answered is whether the trial court had jurisdiction to hear the rules during the pendency of the prior appeal. Appellant argues that the trial court was divested of jurisdiction under Article 2088, Code of Civil Procedure, which divests the trial court of jurisdiction over issues reviewable under an appeal. We note that only alimony due through September, 1973 was at issue in the prior appeal. The appeal would divest the trial court of jurisdiction over this period. However, any alimony accruing after September 1973 was not at issue and the trial court retained jurisdiction to consider it.

Clearly, the trial court had authority to try the rule, but we note that the stipulation of alimony in arrears was $8,450.00, due from August 1, 1973, (Minute Entry page 4). That portion of alimony in arrears ($650.00 for August and September 1973) subject to that prior appeal could not be considered by the trial court during the pendency of the appeal and the judgment should be so amended.

Appellant further argues that the trial court erred in failing to rule on his motion to reduce. The rule to reduce, although not specifically ruled upon, was obviously disposed of by the trial court judgment that gave the plaintiff credit against the wife’s share of the community for the alimony paid since filing of the suit and denied the wife alimony after divorce because of her fault. There was no necessity for a reduction since it was a moot question under the terms of that judgment. The legal effect of the silence of a judgment upon any part of a demand that might have been allowed under the pleadings is a rejection of that demand. Succession of Foster, 240 La. 269, 122 So.2d 96 (1960). On appeal we reversed the award of the credit for alimony paid as an advance on the wife's interest in the community. Our decree made no specific mention of the rule to reduce, but we reversed the trial court judgment only insofar as it was in conflict with our decree. We would consider a motion to reduce the alimony pendente lite in parallel fashion with the motion to accumulate, that is, from date subsequent to that covered by the prior appeal. However, there is nothing in the record showing evidence having been introduced under the rule to reduce. The appellant argues that the entire prior record has been put into evidence, but we see nothing to indicate that the trial court received into evidence any testimony taken on that rule to reduce for the purpose of this rule to reduce. Indeed, considering the lapse of 2 years, we question its relevance. There being no evidence upon which to render a judgment, we cannot afford relief on this appeal.

Accordingly, the judgment of the trial court is amended in that part which awarded the defendant-appellee arrears in alimony by deducting the alimony for the months of August and September, 1973 in the amount of $650.00, making the total of $7800.00 due and executory, and as thus amended, the entire judgment is affirmed at appellant’s costs.

AMENDED AND AFFIRMED.

      . The rule itself alleged only through August, but the evidence included September. (Tr. 57)


author: SAMUEL, Judge.

text:
    J. D. ARMSTRONG v. GULF STATES FISHING & RENTAL TOOLS, INC.
    No. 7644.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1976.
    Rehearing Denied Nov. 16, 1976.

      Donald V. Organ and Roger J. Larue, Jr., New Orleans, for plaintiff-appellant.
    Drury, Lozes & Curry, H. Edward Weid-lich, Jr., New Orleans, for defendant-appel-lee.
    Before SAMUEL, GULOTTA and MORIAL, JJ.
   SAMUEL, Judge.

This is an appeal from a judgment dismissing plaintiff’s suit for total and permanent disability benefits, penalties and attorney’s fees under the provisions of the Louisiana Workmen’s Compensation Act.

The industrial accident occurred on July 10, 1972 when plaintiff, a fishing tool operator, stepped on a nail which lodged in his left heel causing osteomyelitis, necessitating an operation, and resulting in an 8% permanent partial disability of the left leg. Plaintiff was paid compensation in the sum of $3,969 and medical payments in the amount of $4,727 through January 29, 1974, at which time he returned to his regular occupation.

The trial court judgment is based on a finding that plaintiff was not permanently disabled and was not entitled to permanent partial disability benefits, but that his disability fell under the scheduled loss provisions of LSA-R.S. 23:1221(4)(h) and (o) and that the amount he would be entitled to receive under those scheduled loss provisions was less than the amount already received from the defendant.

In this court plaintiff contends: (1) he is permanently and totally disabled; and, alternatively, (2) he is entitled to permanent partial disability benefits.

Pertinent medical evidence in the record consists of the testimony of Drs. Dexter Gary and Irving Redler, orthopedic specialists, and the reports of Drs. Ernest Ellender and Pierre A. Espenan.

Dr. Ellender treated plaintiff for an infected nail puncture wound of the heel from July 12, 1972 until June 25, 1973. During the course of treatment x-rays showed plaintiff had developed osteomyeli-tis of the os calcis. He referred plaintiff to Dr. Gary.

Dr. Gary hospitalized plaintiff and operated on him on July 30, 1973 to try to prevent a reactivation of the osteomyelitis. On December 19, 1973 plaintiff was advised to return to work on a trial basis. Dr. Gary discharged him to return to work without restrictions, and gave him a permanent partial disability rating of 10% of the lower extremity. Plaintiff returned to work on January 2, 1974, but worked only a few days because of the pain he said he was suffering.

Plaintiff went back to Dr. Gary in February, but the doctor could find no clinical evidence of a recurrence of the infection. When last seen on May 26, 1975, three days before the trial, plaintiff had returned to his occupation of fishing tool operator but told the doctor he suffered pain after four or five hours of standing. Plaintiff again was discharged to return to work with an 8% physical impairment. The fact that he was able to, and did return to work, reduced the percentage of disability the doctor felt plaintiff had sustained. While Dr. Gary did find plaintiff’s complaints of pain after working long periods wholly in line with the injury, he concluded this would not prevent plaintiff from fulfilling his full duties as a fishing tool operator.

Dr. Redler saw plaintiff twice, on May 30, 1974 and May 1, 1975. He concluded the nail had produced the osteomyelitis, and the cause of plaintiffs pain at his initial examination might be due to new growth of bone. No further surgery was indicated. Dr. Re-dler concluded the osteomyelitis would remain with plaintiff throughout his life, although it might not manifest itself again. However, it had the potential to flare up at any time. He was of the opinion that plaintiff did have an impairment of the function of the leg as a result of the accident, but that a return to work would not be deleterious to his health. f

Dr. Espenan saw plaintiff on July 13, 1973. Although primarily concerned with the problem of preventing a future flareup of the osteomyelitis, he did not feel plaintiff would be disabled from his former occupation as long as a future flareup responded to surgical management.

Plaintiff testified at the time of the accident he made approximately $1,440 per month. After he was hurt he obtained work as a truck driver and a security guard but had to quit both jobs because of pain in his leg with long periods of standing. He also worked as a desk clerk at a hotel. He is now employed at a salary of $800 per month for another company as a fishing tool operator doing the same work he had done when the injury was sustained. He conceded he has been able to perform all the tasks required of him on the present job. However, he has pain in the left heel after 3, 4 or 5 hours of standing. His foot swells and he has a sharp pain also associated with numbness. He would like to get in another line of work because this job requires standing for long periods, but he only has a fifth grade education and in spite of the pain he must continue working for economic reasons.

Maurice Golden, a retired fishing tool operator, testified as an expert as to those duties. He stated the average job is fifteen hours per day, much of which time is spent standing. While he agreed the operator’s primary function is as a supervisor he indicated the supervisor spent a great deal of time on his feet. His testimony indicates the supervisory nature of the job is not a “desk job”.

John Dishman, president of the corporation currently employing plaintiff, deposed that he has never been informed plaintiff could not perform all of the duties of a fishing tool operator. He stated plaintiff’s duties involve supervising the makeup and operation of the tools which he brings to the job, and that the most time he would be on his feet would be six hours and that there would be several rest breaks during that period of time.

Macklin Wall was deposed as an expert on the duties of a fishing tool operator. He described the duties as more mental than physical, stating that after the tools were chosen, calibrated and “dressed” by the operator, the drilling crew performed the manual labor under the supervision of the operator. He also said it normally takes to 2 hours to set up the tools, but after that it would never be necessary for the operator to stand for longer than 1 hour at a time.

Clearly, all of the evidence is to the effect that plaintiff can perform, and in fact is performing, all of his duties as a fishing tool operator. Nor is there any objective evidence to support plaintiff’s subjective complaints of pain, although the medical evidence is that pain could be expected after plaintiff had been on his feet for a long period; given plaintiff’s injury and resulting osteomyelitis, his complaints are not unfounded. And it is also clear that, although the disease is in remission at this time, it could flare up at any time, even years in the future.

The sole basis of plaintiff’s claim for total and permanent disability benefits is that he works in substantial pain. Under our jurisprudence he is not entitled to those benefits unless the pain is sufficiently substantial as to prevent him from carrying out some of the functions of his job, or so intense it hinders him in the performance of his duties. Whether pain, particularly subjective pain, is substantial enough to be disabling is a question of fact to be decided by the trial court and the conclusion reached depends to a great extent on an evaluation of the plaintiff’s credibility and the other evidence presented.

Here the trial judge specifically found the pain of which plaintiff complains was not sufficiently substantial as to prevent him from performing the same work he had been doing at the time he incurred the injury in suit. The record contains ample evidence which, if believed, supports that conclusion, especially the opinion of Dr. Gary, the treating orthopedic surgeon, and the fact that plaintiff complains of the pain occurring only after hours of standing when other testimony is to the effect that the job does not require such lengthy hours of standing. As it is clear the trial judge accepted both the opinion of Dr. Gary and the testimony showing the job does not require such lengthy hours of standing, we cannot say he committed error in reaching the conclusion now being discussed.

We reject plaintiff’s second and alternative contention, that he is entitled to permanent partial disability benefits, for the same reason we rejected the first. Since he has been found able to return to and perform the work he was doing at the time of his injury, there is no basis for an award of permanent partial disability. We note the trial court finding, that plaintiff already has received compensation in excess of the amount to which he is entitled under the scheduled loss provisions of LSA-R.S. 23:1221(4)(h) and (o), is correct. As he had an 8% disability of the leg, $3,024 would be the maximum award under those provisions and he has been paid $3,969.

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

AFFIRMED.

      . An individual sent to various drilling platforms on land or offshore to retrieve, through the use of certain devices, tools or other objects which have become lodged in a drilling hole.

      . (h) For the loss of a leg, sixty-six and two-thirds per centum of wages during one hundred seventy-five weeks.
      (o) In all cases involving a permanent.partial loss of the use or function of the members mentioned hereinabove, compensation shall bear such proportion to the amounts named herein for the total loss of such members as the disability to such members bears to the total loss of the member, provided that in no case shall compensation for an injury to a member exceed the compensation payable for the loss of such member.

      . Glidden v. Alexandria Concrete Company, 242 La. 625, 137 So.2d 894; Dupard v. M & C Construction Co., La.App., 312 So.2d 660.

      . Holmes v. Morville Plantation, Inc., La.App., 314 So.2d 752.

      . Lacour v. Highlands Insurance Company, La. App., 247 So.2d 611.

      .$1,440 per mo. = $332.30 per wk. ($1,440 X 12 ■+■ 52); 65% of $332.30 = $216 per wk. X 175 weeks = $37,800 for loss of a leg; however, plaintiff has an 8% disability and 8% of $37,800 = $3,024.


text:
    Marjorie F. Laine, wife of and Lester Leon LAINE v. Joseph GERACE, Administrator, Department of Employment Security, Department of Labor, State of Louisiana, et al.
    No. 7645.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1976.
    Rehearing Denied Nov. 16, 1976.

      Henican, James & Cleveland, Joseph P. Henican, III, New Orleans, for Marjorie F. Laine, w/o and Lester Leon Laine, plaintiffs-appellants.
    Chaffe, McCall, Phillips, Toler & Sarpy, David L. McComb, New Orleans, for D. H. Holmes Co., Ltd., defendant-appellee.
    Marion Weimer, James A. Piper and James A. MeGraw, Baton Rouge, for Joseph Gerace, Administrator of the Louisiana Department of Employment Security, defendant-appellee.
    Before STOULIG, BOUTALL and MORIAL, JJ.
   BOUTALL, Judge.

This is an unemployment compensation case. Plaintiff-appellant Marjorie F. Laine had been employed by the Louisiana Department of Public Welfare as welfare technician for a period of twelve years. Mrs. Laine requested, and was granted, an early retirement from the department effective March 1, 1974. Thereafter, she applied to the Department of Employment Security for unemployment benefits, but she was disqualified from receiving benefits on the basis that she had left her employment without good cause connected with the employment, in accordance with LSA-R.S. 23:1601(1).

Mrs. Laine then secured employment with D. H. Holmes Company on a part-time basis, and worked an average of thirty hours a week at a rate of pay of two dollars per hour plus commission. She began work at D. H. Holmes in August, 1974, and was offered full-time employment in October of 1974. She refused that offer of full-time employment, giving as a reason for such refusal that she did not wish to work full-time because it would be at the same hourly and commission scale and only seven and one-half hours per week more than her part-time job.

Mrs. Laine then filed for unemployment benefits from her current employer, D. H. Holmes Company, after working the requisite number of weeks and earning the requisite amount of wages. The local agency of Employment Security ruled that Mrs. Laine had refused the offer of full-time employment for good cause and that she was entitled to benefits. D. H. Holmes Company appealed the decision of the local agency, and the decision was reversed by the Appeals Referee, and that reversal was affirmed by the Board of Review, with the following finding by the Appeals Referee:

“The issue to be resolved in this case is whether or not the claimant refused full-time employment without good cause. In order to determine whether or not there is good cause, there must be circumstances of a compelling nature to establish that the conditions of employment would have imposed an undue hardship on the individual. Such evidence is not present in this case. The evidence shows a matter of preference and not of compelling nature. It must be remembered that the Employment Security Law of the State is historically founded on the premise that benefits of a temporary nature are available to an individual who is willing to work, but industry fails to provide him with employment.
“In this case the individual is working on a part-time basis and filing for benefits for Unemployment Insurance and industry offered an opportunity for the individual to become fully employed. Under the circumstances, the intent of the Law would be violated if the claimant were allowed to continue on a part-time basis under these conditions and drawing benefits.”

Appellant first argues to this Court that the disqualification arising from her leaving the Department of Public Welfare has been cured by her subsequent employment with D. H. Holmes Company for the requisite period and for the requisite amount of wages, and that she is now eligible for benefits. She points out that because she is still working at Holmes she “has not left this last work under disqualifying circumstances.” There is no merit to such argument.

Appellant has apparently misinterpreted R.S. 23:1601(1). Her inability to derive benefits from her job with the Welfare Department has become res judicata, since there was no appeal taken from the ruling that she had left her job without good cause. Her ability to draw benefits based upon her qualifying period with the Welfare Department was extinguished with her disqualification. Under the wording of R.S. 23:1601(1), Mrs. Laine could only be eligible for unemployment compensation benefits if she went back to work and satisfied the requirements of the qualifying period for the new job with D. H. Holmes Company. Satisfying such qualifying period means not only that she earn the requisite wages but that her employment be terminated not under disqualifying circumstances. Her employment with Holmes does not act to reverse or annul the prior finding of disqualifying circumstances.

The net effect of Mrs. Laine’s employment activities has been to qualify her for Unemployment Insurance should she leave her current job under circumstances that would not disqualify her. Such qualification is based upon her employment at D. H. Holmes, where she has worked during the qualifying period, and is not retroactive to the period of her employment with the Welfare Department.

Appellant makes a second argument to this Court that the employment offered by D. H. Holmes Company was unsuitable by comparison to her previous job with the Welfare Department, in accordance with R.S. 23:1601(3)(a). Mrs. Laine contends that the prior wages to be considered are those wages that she earned at the Welfare Department as compared to the wages offered her by D. H. Holmes Company.

Appellant cites the cases of Johnson v. Administrator of Employment Security, La. App., 166 So.2d 366 (1964) and Richardson v. Administrator, Department of Employment Security, La.App., 28 So.2d 88 (1946) in support of her argument that the full-time job offered by D. H. Holmes Company was not suitable because of the wages of-' fered. We have no disagreement with the rationale used in reaching the decisions in those cases, but we do take note that the previous wages used for comparison were earned during the qualifying period, and not some previous, nonrelevant period as here presented.

In this case, the wage earned during the qualifying period was two dollars an hour. The wage offered by D. H. Holmes for full-time employment was also for two dollars per hour, but with a guarantee of more hours, and thus more money per week. Therefore, the criteria used to find work unsuitable in the cases cited by the appellant would, if that criteria were applied in this case, find the full-time employment offer to be suitable employment.

Under the provisions of R.S. 23:1634, the administrative findings of fact are conclusive on the courts if supported by sufficient evidence, and the jurisdiction of the courts is limited to the question of law. Johnson (supra). Our review of the record convinces us that the factual finding that the full-time job offered was suitable is fully supported by the evidence and we affirm the judgment appealed.

AFFIRMED.

      . § 1601 Disqualification for benefits.

      An individual shall be disqualified for benefits:
      (1) If the administrator finds that he has left his employment without good cause connected with his employment. Such disqualification shall continue until such time as the claimant (a) can demonstrate that he has been paid wages for work equivalent to at least ten times his weekly benefit amount following the week in which the disqualifying act occurred and (b) has not left his last work under disqualifying circumstances.

      . “(a) In determining whether or not any work is suitable for an individual, the administrator shall consider the degree of risk involved to his health, safety and morals, his physical fitness and prior training, his experience and prior earnings, his length of unemployment and prospects for securing local work in his customary occupation, and the distance of the available work from his residence.”


text:
    Lewis Etienne ALEMAN v. LIONEL F. FAVRET CO., INC. and Employers Casualty Co.
    No. 7714.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1976.
    Rehearing Denied Nov. 16, 1976.

      Robert McComiskey, New Orleans, for plaintiff-appellee.
    Hammett, Leake, Hammett, Hulse & Nelson, W. Paul Andersson, New Orleans, for defendants-appellants.
    Before GULOTTA, STOULIG and MORTAL, JJ.
   MORIAL, Judge.

Defendants, Lionel F. Favret Company, Inc. and American Employers Insurance Company, appeal a district court finding of total and permanent disability on behalf of plaintiff, Lewis Etienne Aleman.

On August 24,1964 plaintiff filed suit for workmen’s compensation benefits alleging himself to be totally and permanently disabled as a result of injuries suffered in a work-related accident on July 25, 1963. After trial on the merits, judgment was rendered in plaintiff’s favor on October 16, 1974 awarding him 400 weeks compensation at $35.00 per week less a credit for voluntary payments made from January 3, 1964 through April 1, 1964 and medical expenses incurred from June 5 through June 16, 1964. On June 21, 1975, plaintiff died. He is represented herein by his children and surviving spouse. Defendants appeal. We reverse.

Plaintiff alleges that he has been totally and permanently disabled as a result of an accident occurring in the course and scope of his employment. At issue here is whether under the requirements of Louisiana workmen’s compensation statute and the jurisprudence thereunder, plaintiff’s evidence sufficiently establishes the occurrence of a work-related accident and the causal relationship between that accident and his purported disability.

Four persons testified with respect to the occurrence of the accident. Although he did not remember the specific date of the accident, plaintiff testified that in the summer of 1963 he was employed as general superintendent with Lionel F. Favret Company, Inc. He stated that he had worked for the company approximately 14 years and that he usually supervised between 40 and 120 men. On the day of the incident in question, the fuse box on the job on which plaintiff was working was malfunctioning and he attempted some repairs. He testified that he went out to the fuse box along with his timekeeper, Ray Bowman, and as he attempted to remove a fuse with a pair of pliers, a blinding flash pitted his eyeglasses and startled him to such an extent that he spun backwards and twisted his back. He stated that he then blacked out and the next thing he remembers is being in the timekeeper’s shack in a dazed condition. Plaintiff noted that Bowman was the only person to witness the accident. Plaintiff did not report the accident, in apparent disregard of known procedures, but stated that Bowman told him that he had made out a report.

Plaintiff further testified that he did not remember whether his back pain started an hour or week after the accident but stated that it had gotten progressively worse and that he was in constant pain from shortly after the accident until he stopped working on January 3, 1964, when the pain became unbearable. Plaintiff also could not remember exactly when he first saw a doctor for his alleged back condition. At one time he stated that he had seen a doctor within weeks after the accident and another time testified that he did not see one until after he had stopped working in January.

Plaintiff’s wife, Gertrude Aleman, testified she became aware of the accident the day it occurred when her husband phoned her from the job. She noted that when he arrived home that evening both his shins were skinned. Plaintiff told her that he had a flash in his face and twisted around and that he must have fallen. She testified that after the incident her husband often complained about his back, and that in order to alleviate some of the pain she often rubbed liniment on it after hot showers.

Ray Bowman testified that at the time of the alleged incident he was plaintiff’s immediate subordinate and had been for approximately three years. Although he recalled the occurrence of a problem with the fuse box and remembered filling out a report for plaintiff’s damaged glasses (with no mention of any physical injury), he stated he did not witness the accident and was in fact in the timekeeper’s shack when it occurred. He further testified that after the accident when Aleman came into the timekeeper’s shack, he did not appear dazed and did not complain about being injured, but was just angry about his eyeglasses.

In the month to six weeks following the incident that Bowman continued to work with Aleman, he noted no noticeable change in his work habits and remembered no complaints of pain. Bowman stated that he did not become aware of plaintiff’s back problem until approximately one and one half years after the accident when he encountered plaintiff. On this occasion, he was told by plaintiff that he had had two back operations. However, during this conversation, Aleman did not mention what had caused his back difficulty.

Ernest Voss testified that he began working under plaintiff as assistant superintendent for Favret in July 1963. Voss was not working on the job at the time of the alleged incident and, at the trial, his memory of the facts subsequent to the incident were not clear. He read into the record, though, a signed statement which he had given on November 11, 1964, at which time his recollection of the facts incidental to this claim was much better. He stated that he never noted any back problems in plaintiff until the early part of December 1963, when Aleman returned from a fishing camp he had purchased in Slidell, in obvious discomfort and with complaints of back pain. Prior to this occasion, he had seen plaintiff every day and observed no changes in his working habits which could have indicated a back difficulty.

Plaintiff worked until January 3, 1964 at which time the witness stated he did not complain about his back but looked very pale and complained about his heart. Voss convinced him to see a doctor about his heart condition. He added that the only time he remembers plaintiff telling him that he was hurt on the job was about six months prior to trial when plaintiff called him and said “you remember when I was hurt on the job?” Voss informed him that he knew nothing about the accident and could not corroborate his story.

After carefully reviewing the record, we believe it was error for the trial judge to have concluded that plaintiff had sufficiently proven the existence of a work-related accident and resulting disability therefrom. The jurisprudence is clear that a plaintiff’s testimony alone is sufficient to establish the occurrence of a work-related accident only where his story is corroborated by surrounding facts and circumstances and where there is nothing in the record to impeach or discredit his testimony. Additionally, in order to recover workmen’s compensation benefits the testimony as a whole must show more probably than not that an employment accident occurred and that it had a causal relation to the disability. White v. Freeport Chemical Company, 319 So.2d 563 (La.App. 4th Cir. 1975).

The present record is replete with instances of testimony which are contradictory, non-corroborative and unsupportive of plaintiff’s allegations.

Bowman, allegedly an eyewitness to the accident, testified he did not see it occur. Although he made out a report for plaintiff’s eyeglasses he was not even aware that plaintiff had suffered any injury.

Plaintiff’s wife noted that after the accident plaintiff came home with skinned shins. Neither plaintiff nor anyone else mentioned this aspect of plaintiff’s injury. Voss noted no back difficulties prior to December, whereas plaintiff testified his back got progressively worse after the July incident.

Plaintiff, being a job superintendent and admittedly conversant with the procedure for filing on site injury reports, made no request for an accident report to be filed until September 17, 1964, over a year after the alleged accident. As further indication of the uncertainty of plaintiff’s claim, we observe that while plaintiff alleged his back problems stemming from the work-related accident necessitated two back operations, under cross-examination he admitted that he had signed a form from his group hospitalization carrier, John Hancock, in which he stated that the injury was not job connected and did not result from a work-related accident. In fact, John Hancock, whose liability extended solely to non work-related accidents, paid the bill for plaintiff’s first operation in February 1964.

Additionally, Dr. R. H. Corales, Jr., the neurosurgeon who operated on plaintiff, stated in deposition that in taking a history of plaintiff on January 29, 1963, plaintiff told him that he had suffered an acute low back pain while stooping over on January 24, 1964. Dr. Corales stated he was unable to determine what caused plaintiff’s back condition and was never informed of and had no knowledge of any work-related accident.

After the first operation, plaintiff progressed well and Dr. Corales believed him to be capable of returning to work. However, plaintiff returned to him on May 19, 1964 complaining of back and leg pain which had begun one month prior to the visit. Examination revealed a ruptured disc in an area below that which he had been operated previously. Dr. Corales performed a second operation on June 9, 1964. He testified that in his opinion something had happened to Mr. Aleman after the first operation which precipitated the second back difficulty. He further stated that he deemed it highly unusual that after the patient’s discharge from the hospital on June 16, 1964 that he failed to return for any post-operative treatment.

We believe that based upon the testimony cited above, plaintiff has clearly failed to establish that his disability resulted from a work-related accident. Plaintiff’s testimony is uncorroborated by surrounding facts and circumstances and is seriously discredited by his own admissions and the testimonies of his coworkers and treating physician.

Accordingly, we hereby reverse the judgment of the district court and it is now ordered, adjudged and decreed that there be judgment herein in favor of defendants, Lionel F. Favret Company, Inc. and American Employers Insurance Company, dismissing the suit of plaintiff, Lewis Etienne Aleman. Plaintiff is to pay all costs.

REVERSED.


author: REDMANN, Judge.

text:
    Stephen OUBRE v. Catherine Borne, wife of Stephen OUBRE.
    No. 7991.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1976.
    Rehearing Denied Nov. 16, 1976.

      Nelson D. Taylor, Gray & Taylor, Baton Rouge, for plaintiff-appellant.
    Donald J. Cicet, Reserve, for defendant-appellee.
    Before REDMANN, BOUTALL and SCHOTT, JJ.
   REDMANN, Judge.

On our motion we dismiss a wife’s appeal seeking increase in alimony because we lack “jurisdiction,” C.C.P. 2088; Malone v. Malone, La.1973, 282 So.2d 119. Appellant filed neither bond nor motion to proceed in forma pauperis within the 30 days of C.C.P. 3943.

Appellant asserts that she mailed her forma pauperis motion to the trial judge on the day before the 30th day and argues that it presumably was received on the 30th day. Had it been properly and timely presented, the judge’s failure to timely sign it would not defeat the appeal; Graves v. Kaiser Alum. & Chem. Corp., La.1975, 319 So.2d 323.

However, appellant asserts that she mailed the notice to the judge, rather than to the clerk of court. The judge did not sign the order until the 34th day and on that day the motion and order was stamped as filed in the clerk’s office.

C.C.P. 253 requires that documents to be filed in an action “shall be delivered to the clerk of the court for such purpose.” Although we might question Johnson v. State Farm Mut. A. Ins. Co., La.App. 3 Cir. 1970, 241 So.2d 799, we agree that, under ordinary circumstances, delivering the document to the judge does not constitute filing. Thus the motion for forma pauperis authority was not timely filed.

Appeal dismissed.


author: DOMENGEAUX, Judge.

text:
    Preston N. AUCOIN and Gilbert Wayne Aucoin, Plaintiffs-Appellees, v. EVANGELINE PARISH POLICE JURY, Defendant-Appellant.
    No. 5621.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 21, 1976.

      A. Bruce Rozas, Mamou, for defendant-appellant.
    Preston N. Aucoin, pro se.
    Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.
   DOMENGEAUX, Judge.

Plaintiffs-Appellees, Preston N. Aucoin and Gilbert Wayne Aucoin, two Evangeline Parish attorneys, petitioned for a Writ of Mandamus compelling defendant-appellant, the Evangeline Parish Police Jury, to implement the provisions of LSA-R.S. 15:145 (Act 820 of 1975). From an adverse judgment the police jury has appealed. We dismiss the appeal.

Act 820 of the 1975 Regular Session of the Louisiana Legislature created the offices of public defender for the 11th and 13th Judicial Districts. The Act called for compensation and funding for the offices to be paid for by the police juries in each of the respective parishes. The Evangeline Parish Police Jury failed to comply with Act 820 of 1975, and plaintiffs instituted this action.

Subsequent to the passage of Act 820 of 1975, a comprehensive, statewide indigent defender system has been established for the state of Louisiana. This legislation is to be found in Act No. 653 of the 1976 Regular Session of the Louisiana Legislature. Section 5 of the new Act provides, in pertinent part:

“. . . provided that the indigent defender program for the 13th Judicial District as provided in Act 820 of the 1975 Regular Session is repealed if this legislation is enacted into law.”

Act 653 of the 1976 Regular Session was signed by the Governor and became effective October 1, 1976. LSA-Const.1974, Art. 3, Section 19.

Obviously the issues raised by this appeal are no longer viable. Although neither party to this appeal has raised the issue of mootness, a reviewing court has the right to consider, ex proprio motu, the possibility thereof. See Behler v. Louisiana State Racing Commission, 251 La. 959, 207 So.2d 758 (1968); Cain v. Board of Supervisors of Elections, Ouachita Parish, 335 So.2d 711 (La.App. 2nd Cir. 1976); Major v. Louisiana Department of Highways, 327 So.2d 515 (La.App. 1st Cir. 1976).

Moot questions will not be considered on appeal. Behler v. Louisiana State Racing Commission, supra; Cain v. Board of Supervisors of Elections, Ouachita Parish, supra; Major v. Louisiana Department of Highways, supra; State, ex rel. Guste v. Louisiana Milk Commission, 297 So.2d 750 (La.App. 1st Cir. 1974).

Therefore, since the matter before us has become moot, we must dismiss the appeal.

For the above and foregoing reasons the appeal is dismissed. Costs of this appeal are assessed against defendant-appellant, Evangeline Parish Police Jury, insofar as allowed by law.

APPEAL DISMISSED.

      . The trial judge anticipated the adoption of the new statewide indigent defender program and conditioned the operation of the judgment herein upon the possibility that the proposed legislation would not be enacted.