author: GULOTTA, Judge. BEER, Judge

text:
    Myrtis C. HUETT v. INSURANCE COMPANY OF NORTH AMERICA et al.
    No. 7344.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 1976.
    Rehearings Denied April 13, 1976.
    Writ Refused June 4, 1976.

      Tonry & Mumphrey, Richard A. Tonry, Chalmette, for plaintiff-appellant.
    Ralph S. Johnson, New Orleans, for defendants-appellees.
    Before GULOTTA, BOUTALL, SCHOTT, MORIAL ancl BEER, JJ.
   GULOTTA, Judge.

This is an appeal 'from a dismissal of plaintiff’s workmen’s compensation claim for total and permanent disability. Plaintiff, employed as a cashier at Puglia’s Supermarket, was injured on November 21, 1969, when she fell on a broken piece of sidewalk, adjacent to Puglia’s, as she was leaving the store to go home for lunch.

In reasons for judgment, the trial judge concluded “plaintiff has suffered an aggravation of a pre-existing arthritis, and that she. is disabled from this condition”. However, the trial judge also found that plaintiff “was not injured with the scope and course of her employment”. Plaintiff’s suit was dismissed. We reverse.

On appeal, we are initially confronted with the issue of whether an employee is in the course of her employment and entitled to receive workmen’s compensation benefits when she is injured on her employer’s premises, but while leaving the premises for lunch.

Plaintiff contends workmen’s compensation coverage has been extended to employees who were injured within a reasonable interval of their arrival and departure from their place of employment before and after work. Although recognizing the rule that generally workmen’s compensation benefits do not cover employees injured during the lunch period, plaintiff logically argues that if an employee, injured under certain circumstances while going to and from his employment, before and after work, is entitled to coverage, an employee injured under similar circumstances while going to lunch is also entitled to coverage.

It is defendants’ contention that workmen’s compensation has not been extended to employees injured during an unpaid lunch hour when the lunch period is not under the direction or supervision of the employer and the employees are not furnished an area for lunch, but are permitted to leave the premises.

As we stated in Lavier v Maclellan, 247 So.2d 921 (La.App. 4th Cir. 1971), a determination of whether an employee injured during a lunch period is deemed to have been injured while in the course of his employment depends upon the facts in each case. In the case of Grey v. Avondale Service Foundry, 305 So.2d 639 (La. App. 4th Cir. 1974), we reiterated the recognized and well settled rule that a liberal construction is traditionally afforded the workmen’s compensation act.

The general rule with regard to lunch hour accidents is set forth in Professor Malone’s treatise, Louisiana Workmen’s Compensation Law and Practice, §§ 165, 182, 183 :

“Ordinarily, an employee who leaves his employer’s premises and takes his noon hour meal at home or some other place of his own choosing is outside the course of his employment from the time he leaves the work premises until he returns. In the absence of a further showing it is assumed that the nature of his employment has not affected his personal eating practices, and the mere fact that he expects to return to his job at the end of the lunch hour is not enough to warrant the inclusion of this period within the course of his employment. * * *
^ sjí sjc }}i
“The extent of the demand that working conditions will make upon the eating practices of employees will vary from case to case and it is not easy to say in advance when the lunch period can be included in the course of employment. * * * [footnote deleted]
“The rules discussed elsewhere in this chapter may he applicable to lunch hour accident. * * *" (emphasis supplied)

The general rule excluding coverage is not without exceptions. See Smith v. Orleans Management Corporation, 242 So.2d 288 (La.App. 4th Cir. 1970). As recognized in Lavier v. Maclellan, supra, an exception to the general rule may be made if plaintiff is required to eat on the employer’s premises, or under the employer’s supervision, or on the employer’s time, or if the lunch hour is taken under circumstances necessary to suit the employer’s, rather than the employee’s, convenience. See also Clark v. Employers Liability Assur. Corporation, 27 So.2d 464 (La.App. 1st Cir. 1946). However, plaintiff’s lunch period does not factually come within the exceptions contemplated in the Smith, Lavier and Clark cases.

As argued by plaintiff and pointed out by Professor Malone in Louisiana Workmen’s Compensation Law and Practice, §§ 169, 193, 194, coverage is extended within a reasonable interval before and after working hours when the injury occurs on the employer’s premises. Section 169 states:

“The observation has been made in previous sections that an employee is engaged in the course of his employment while he is actually engaged in his employer’s work even before or after working hours. Furthermore, even if he has finished the day’s work and is preparing to leave, or is in the act of leaving, he is entitled to a reasonable period while still on the premises which is regarded as within the course of the employment. The working day embraces these intervals just as it includes reasonable periods for rest, relaxation or the attendance of personal needs. This applies also to periods prior to the actual beginning of work under, similar circumstances.
* iji ‡ * Jji
“The extension of compensation protection to periods prior to and after working hours under the circumstances described above does not reach beyond the premises of the employer. It- should be borne in mind that as a general rule an accident that occurs while the employee is going to or returning from work is outside the course of employment, and we are faced with the arbitrary proposition that an employee who is injured while proceeding directly from his work may have compensation if the accident occurred at a place one foot within the employer’s gate, or compensation would be denied if he were injured outside on the public highway. This seemingly arbitrary distinction is entirely justifiable from an administrative viewpoint. Unless the employee is to be protected during the entire journey to and from work, a line must be drawn at some point, and the boundary of the employer’s premises is as definite as any that can be devised.”

Our workmen’s compensation act envisions extension of coverage to employees from the time they reach the employer’s premises until they depart, and this includes a reasonable interval before and after working hours. In Carter v. Lanzetta, 249 La. 1098, 193 So.2d 259 (1966), a case factually similar to the instant one, workmen’s compensation coverage was afforded to a grocery and sandwich shop employee who was injured at the end of the work day after purchasing pastries in the employer’s shop. Plaintiff, in Carter, lost her footing on the cement steps adjoining the front door. The accident occurred approximately 20 or 30 minutes after the conclusion of the work day. See also Serean v. Kaiser Aluminum & Chemical Corporation, 277 So.2d 732 (La. App. 4th Cir. 1973), where coverage was afforded to an employee who was injured in the employer’s parking lot as he alighted from his car to report to work. The injury occurred on the employer’s premises prior to the commencement of the work day.

Considering the Carter and Serean decisions, it would appear inconsistent to afford coverage for a reasonable period before and after working hours and not to afford coverage for a reasonable time span during which the employee is going to or coming from lunch, provided the injury occurs on the employer’s premises. Permitting such an inconsistency would be in conflict with the liberal construction afforded the workmen’s compensation act by the courts of this state.

Accordingly, we apply the reasonable entry and exit theory to employees injured on the employer’s premises within a reasonable interval of going to and returning from lunch.

In this connection, the testimony indicates that plaintiff commenced her lunch period at approximately 3:00 p. m. She stopped briefly for 10 to 15 minutes for some articles in the store, then left the store to go to lunch. After leaving the store, plaintiff, while walking on the sidewalk adjacent to the employer’s store, was required to walk around a delivery truck which was parked at Puglia’s back entrance and blocking the sidewalk. When she attempted to return to the sidewalk after going around the truck, she fell on a piece of broken sidewalk. Huett testified that the place where she fell was near the back entrance to the store, close to the corner of the building, and on Puglia’s property. The fact, that plaintiff fell on the employer’s premises was uncontradicted and, therefore, must be accepted as true. See Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967).

The cases of Brooks v. Cal-Metal Pipe Corporation of Louisiana, 81 So.2d 462 (La.App. 1st Cir. 1955) and Smith v. Orleans Management Corporation, supra, relied on by defendants, are not authority for denying coverage to an employee injured on the employer’s premises during a reasonable interval of going to and departing from work. In Brooks, the employee was denied coverage when injured during the lunch period. However, the injury occurred approximately three-quarters of a mile from the employer’s premises. In Smith, the court denied coverage to an employee injured off the employer’s premises during a lunch period when he attempted to cross a canal on the way to a nearby café.

Also, in Lavier, this court denied coverage to a golf course greenskeeper who was injured when struck by a golf ball while on the employer’s premises (the golf course) during a lunch period. Clearly, Lavier came within the general rule, i e., that workmen’s compensation coverage is not afforded to an employee while at lunch. However, unlike the instant case, Lavier was not in the process of leaving or returning to the employer’s premises and, therefore, would not come within the reasonable entry and exit theory exception to the general rule.

Considering the circumstances of the instant case, we conclude that plaintiff is entitled to coverage under the workmen’s compensation act.

Having so concluded, we now turn to the question of the extent of plaintiff’s disability. The record supports the conclusion of the trial judge that plaintiff had suffered an aggravation of a pre-existing arthritic condition and was disabled as a result of the accident.

The medical evidence ranged from the testimony of Dr. Joseph E. Dugas, a general surgeon, who concluded that a possibility existed plaintiff suffered an aggravation of a degenerated intervertebral lum-bosacral disc at the L-5, S-l level, to the testimony of Dr. George R. Cary, Jr., an orthopedist, who concluded that plaintiff’s disability of the lower back was mo're likely an aggravation of the degenerative changes in the lower back caused by trauma, i. e., the accident, rather than from a normal flare-up. Furthermore, Dr. William M. Pusateri, an orthopedic surgeon, stated that it is medically probable that as a result of the trauma, plaintiff’s back was impaired by the onset of symptoms after the accident.

It is significant that the doctors’ conclusions (to a lesser or greater extent) that the accident caused an aggravation of the disc problem was influenced by the fact that Huett was asymptomatic before the injury and became symptomatic after the accident. In this connection, plaintiff, plaintiff’s sister and plaintiff’s son all testified that Mrs. Huett suffered no back problems prior to the fall, however, after the injury, she suffered severe pain in the hip, leg and lower back. According to these witnesses, subsequent to the date of the injury, Mrs. Huett was unable to do housework or engage in recreational activities, including fishing, which she was accustomed to doing prior to the accident. Plaintiff was unable to continue her employment at Puglia’s and was terminated approximately eight months after the accident because of frequent absence from work resulting from pain attributed to the accident.

In determining whether a claimant’s disability is causally related to an accident, great weight attaches to the fact of a sudden change from a condition of health or ablebodiedness prior to an accident to one of disability immediately following thereafter. See Ardoin v. Houston Fire and Casualty Insurance Company, 235 So.2d 426 (La.App. 3d Cir. 1970) ; Stipkovich v. Empire Menhaden Company, Inc., 319 So.2d 484 (La.App. 4th Cir. 1975).

The record also supports the trial court’s conclusion that plaintiff suffered a disability from the injury. Plaintiff testified that her duties as a cashier required standing for periods from five to eight hours, and bagging of groceries when the bag boys were not available. Other duties assigned to her included occasional placing of stock on the grocery shelves.

Dr. Cary stated that because of the accident, Mrs. Huett would be unable to perform strenuous work activity, such as bending or lifting heavy objects. It was his opinion that standing on her feet at the cash register for periods of five to eight hours could precipitate discomfort in the lower back. Dr. Pusateri indicated that depending on the individual, the serious nature of plaintiff’s injury could prevent her from carrying on her activities as a cashier.

The medical and lay testimony considered, we are in agreement with the conclusion of the trial judge that Mrs. Huett was disabled as a result of the aggravation of the pre-existing arthritic condition. However, our examination of the record reveals plaintiff’s disability to be a temporary, rather than permanent, total disability.

Based on his final examination of plaintiff on April 13, 1972, Dr. Dugas concluded that plaintiff did not have sufficient objective evidence of disability to warrant further diagnostic or therapeutic procedures. Dr. Dugas was of the opinon that there was no reason why plaintiff could not perform the work she had been doing. Dr. Pusateri did not rule out the possibility that a person suffering with injuries similar to those injuries suffered by the plaintiff could return to work. In addition, Dr. Cary, who did not examine plaintiff after December 18, 1970, was of the opinion that plaintiff’s standing on her feet at the cash register could precipitate discomfort and bother her lower back. However, Dr. Cary also stated that his usual experience in dealing with aggravation of a pre-exist-ing disc condition is that it usually gets worse for several months, after which it resolves itself and tapers off. According to Dr. Cary, the general trend is to improve.

Under the circumstances, we cannot conclude that plaintiff successfully carried the burden of proof required to establish a total and permanent disability. Tyler v. Owens Illinois, Inc., 289 So.2d 893 (La.App. 4th Cir. 1974). However, we do conclude that plaintiff suffered a temporary total disability from the date of the accident, November 21, 1969 through April 13, 1972, the date Dr. Dugas indicated plaintiff could return to work. Therefore, plaintiff is entitled to benefits based on temporary total disability for a period of 124 weeks.

Plaintiff’s request for penalties and attorney’s fees is without merit. LSA-R.S. 23:1201.2, in pertinent part, states:

§ 1201.2 Failure to pay claims; discontinuance; penalties and attorney’s fees
“A. Any employer whose liability for claims arising under the provisions of this Chapter is not covered by insurance, shall pay the amount of any claim due under the provisions of this Chapter, within sixty days after receipt of written notice. Failure to make such payment within sixty days after receipt of notice, when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the employer to a penalty, in addition to the amount of claim due, of 12% of the total amount of such claim, payable to the claimant, together with all reasonable attorney’s fees for the prosecution and collection of such claim, . . . ”

In the instant case, we cannot say the insurance company’s failure to pay workmen’s compensation to claimant was arbitrary, capricious or without probable cause. A serious issue was presented as to whether plaintiff’s injury occurred within the course of her employment. Therefore, penalties and attorney’s fees are denied.

Accordingly, the judgment of the trial court is reversed. Judgment is now rendered awarding plaintiff $37.44 per week for a period of 124 weeks or a total of $4,642.56, together with legal interest thereon, and in addition thereto, medical benefits provided for under the act.

REVERSED AND RENDERED.

BEER, Judge

(dissenting in part).

Being in full agreement with the majority’s computation of the amount due plaintiff-appellant (in the event that liability attaches) but in disagreement with the finding of liability on the part of defendant-appellee I respectfully dissent from that portion of the majority opinion.

This is a close case and I have much respect for the basic premise upon which the majority rests its finding of liability under the act. Nevertheless, I believe that the determination that plaintiff-appellant was “not injured within the course and scope of her employment” was, ultimately, a factual determination by the trial court which was not, in my opinion, manifestly erroneous.

      . We note that certain earlier Louisiana Circuit Court decisions have extended recovery to plaintiff’s injury during the lunchtime break. See Whitfield v. City of New Orleans, Orl. No. 8115 (1921) ; LeBourgeois v. Lyon, Lumber Co., 6 La.App. 216 (1st Cir. 1927).

      .LSA-R.S. 23:1221(1) provides for 65% of wages during the period of disability not to exceed three hundred weeks. Huett testified she worked 36 hours per week at a rate of $1.60 per hour. Acts 1968 Ex.Session, No. 25, § 2, as incorporated in LSA-R.S. 23:1202 (in effect at time of the accident) provided for maximum compensation of $45.00 per week.

      . Landos v. Homer Knosrt Construction Company, 258 So.2d 224 (La.App. 4th Cir. 1972), writs refused, 261 La. 467, 259 So.2d 915 (1972) and 261 La. 469, 259 So.2d 916 (1972).

      . See LSA-R.S. 23:1203.


source: Caselaw Access Project

author: STOULIG, Judge. REDMANN, Judge LEMMON, Judge

license: Public Domain

text:
    Mrs. Joseph WILLIAMS v. Norma S. BEL and Rene Brunet, Jr.
    No. 7181.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 1976.
    Rehearings Denied April 13, 1976.
    Writs Granted May 28, 1976.

      Perez, Fernandez, Seemann & Egan, William H. Egan, Chalmette, for Mrs. Joseph Williams, plaintiff-appellee.
    Joseph S. Russo, Jefferson, for Norma S. Bel, defendant-appellee.
    Reuter & Reuter, Arthur C. Reuter, Jr., New Orleans, for Rene Brunet, Inc., defendant-appellant.
    Before REDMANN, LEMMON, GU-LOTTA, STOULIG and BEER, JJ.
   STOULIG, Judge.

This appeal involves a broker’s claim for commission and reasonable attorney fees under a contract to sell real estate where the buyer failed to take title because the property was partially destroyed by a hurricane before the act of sale was passed.

This litigation was initiated by the prospective buyer, Mrs. Joseph Williams, who filed suit against the seller, Mrs. Norma S. Bel, for $2,380 for breaching the agreement to sell by failing to restore the property after Hurricane Betsy. Also joined as a defendant was Rene Brunet, Inc., for the return of the $1,690 deposit made by plaintiff when she signed the contract to buy. The realtor filed reconventional and third party demands, claiming a commission of $1,014 together with reasonable attorney fees from the seller under the written contract, or alternatively, from the buyer in the event it was concluded the purchaser had breached the agreement.

From a judgment (1) ordering the realtor to return to plaintiff her $1,690 deposit with legal interest from date of judgment, and (2) dismissing Brunet’s claim for commission and reasonable attorney fees, the realtor has appealed.

Under the terms of the contract signed July 21, 1965, Mrs. Williams was obligated to purchase the realty at 1538 Schnell Drive in Arabi, Louisiana, for $16,900; provided she could finance $13,400 of the purchase price at 6% interest. Mrs. Bel was required to convey title on or before September 20, 1965; further the seller was obligated to pay the agent’s commission of 6% to Brunet once the buyer signed the agreement and the loan stipulated in the contract was obtained. The contract also provided that in the event of its breach, the party at fault would, among other things, be liable for the realtor’s commission and the attorney fees incurred in its collection.

Mrs. Williams obtained the necessary financing and the act of sale was scheduled for passage and then was postponed. The record does not reflect the reason for the delay but apparently it was not attributable to either the buyer or the seller. The notary rescheduled the signing of the act of sale for September 10. On September 9, Mrs. Bel’s property was heavily damaged after being inundated by the flood waters resulting from Hurricane Betsy. Thereafter, Mrs. Williams declined title.

Subsequently both the buyer and the seller made demand on Brunet for the $1,690 deposit. The seller contended it was due as liquidated damages because of the purchaser’s breach of the agreement by failing to take title. Relying upon C.C. art. 2455, Mrs. Williams contended the partial destruction of the property gave her the option to recede from the contract and have her deposit returned or to renegotiate the purchase price for the undestroyed portion of the property.

The trial judge properly decided Mrs. Williams did have the right to withdraw under the cited article, and once it was determined the partial destruction released her from any obligation to perform, the realtor was obligated to return her deposit. Since she did not breach the contract, Brunet could not claim a commission from Mrs. Williams.

We turn to appellant’s claim against the seller. The contract provides in part:

“If this offer is accepted, seller agrees to pay the agent’s commission of 6%, which commission is earned by agent when this agreement is signed by both parties and when the mortgage loan, if any, has been secured.”

Mrs. Bel. argues the destruction of the object of the sale avoids the entire contract and any claims arising thereunder. We do not subscribe to this view. In signing the agreement Mrs. Bel undertook two obligations : one to convey her property on or before September 20, 1965, and the other to pay a real estate commission to Brunet after “ * * * the agreement is signed by both parties and when the mortgage loan * * * has been secured.”

At the outset there were two foreseeable contingencies that could have voided Mrs. Bel’s obligation to sell, namely, the non-merchantability of her title or the purchaser’s inability to obtain the financing specified in the contingent loan clause. As things developed, an unforeseeable event that damaged the property permitted the purchaser to decline title and, of course, relieved Mrs. Bel of her duty to tender title.

With respect to the obligation to pay a commission, Mrs. Bel committed herself to liability for this amount when two conditions concurred: (1) the agreement was signed, and (2) financing was secured. The contract is clear. The broker’s fee is not conditioned on the passage of the act of sale. At the time the contract is signed by buyer and seller, the realtor has invested time and energy in showing the property and bringing the parties together.

C.C. art. 1901 provides in part: “Agreements legally entered into have the effect of laws on those who have formed them.”

Contracts should be enforced as written unless they are executed through fraud or error or have for their object matters that are contra bonos mores. Chemical Cleaning, Inc. v. Brindell-Bruno, Inc., 214 So.2d 215 (La.App. 4th Cir. 1968).

Applying these principles to the instant case, we conclude the commission was earned once Mrs. Williams secured financing. The disputed clause before us has been interpreted in earlier cases and the realtor has been allowed to recover the commission even though the act of sale did not pass. In Castellon v. Nations, 230 So. 2d 675 (La.App. 4th Cir. 1970), a realtor’s commission was allowed even though the seller was unable to deliver title in accordance with the terms of the buy/sell agreement. The court noted:

“The broker earns his commission even if the sale is not consummated when he procures a purchaser, ready, willing and able to buy on terms prescribed by the principal. Morere v. Dixon Real Estate Co., Inc., La.App., 188 So.2d 623 * * *.” 230 So.2d at 677.

In the case before us, the seller’s inability to perform does not stem from nonmer-chantability or from some impediment existing at the time of her signing the agreement. It is the result of a fortuitous event beyond her control. But we do not think this precludes the right of the realtor to recover the commission. Whether the object of the sale was destroyed or left standing by the hurricane, the services rendered by the realtor had already been performed. Had a plumber or roofer rendered a service to the Schnell property on September 8, 1965 with the understanding the seller would be billed at the end of the month, Mrs. Bel could not defend against payment by pleading the house on which the work was performed was destroyed.

It is with the owner of the property that the risk of loss pending transfer is placed by the Civil Code. Obviously any loss through fortuitous event should be borne by the owner at the time of the happening. This rationale is apparent in C.C. art. 2455, which gives the prospective purchaser of an object partially destroyed before transfer the option to rescind his agreement. It logically follows that collateral rights, such as the right to a commission on the sale of realty, cannot be obliterated by the loss of the object through an act of God if the services to the seller are complete prior to destruction of the thing.

We conclude Mrs. Bel must pay Brunet the $1,014 contemplated by the contract. Although the result is harsh, we note Mrs. Bel could have avoided liability had she permitted the realtor to refund the deposit to purchaser on the initial demand. At this point Brunet was willing to forego his broker’s fee. It should also be borne in mind that the harsh result in this matter is not due to the operation of law or statute but rests solely on a contractual obligation voluntarily assumed by the plaintiff.

Finally, we consider the realtor’s claim for attorney fees based on this provision:

“Either -party hereto who fails, for any reason whatsoever, to comply with the terms of this offer, if accepted, is obligated and agrees to pay the agent’s commission and all reasonable attorney’s fees and costs incurred by the other party, and/or agent in enforcing their respective rights.” (Emphasis added.)

This terminology contemplates an active breach by one of the parties that would be inapplicable if the obligation to perform was nullified by a fortuitous event. If the basis for the realtor’s claim for attorney fees is that the seller or the buyer failed to comply with the obligation to either transfer or accept title, then, under these circumstances, the claim would be without merit because a fortuitous event nullified the contract. But the seller’s refusal to pay the commission was a failure to comply with that part of the contract that was not affected by the occurrence of the hurricane. By its own terms the realtor had performed completely once the buyer was found and financing secured. We conclude the seller’s refusal to pay the commission was a failure to comply with one of the terms of the offer and, therefore, the realtor was entitled to be reimbursed for the cost and fees incurred in seeking redress in court.

For the reasons assigned, the judgment appealed from is reversed insofar as it dismisses the realtor’s third party claim for a commission against the seller, and it is now ordered, adjudged and decreed there be judgment in favor of Rene Brunet, Inc., and against the defendant Mrs. Norma S. Bel in the sum of $1,014, with legal interest from judicial demand; in all other respects the judgment is affirmed. Costs are to be borne equally by the seller and the realtor.

REVERSED IN PART;

AFFIRMED IN PART.

REDMANN and LEMMON, JJ., dissent with written reasons.

REDMANN, Judge

(dissenting).

The contract does provide that the agent’s commission is “earned” on acceptance of the offer, and that (as between buyer and seller) the seller is to pay that particular cost of the sale.

Nevertheless the printed contract — supplied by the real estate agent — also provides ;

“Either party hereto who fails, for any reason whatsoever, to comply with the terms of this offer, if accepted, is obligated and agrees to pay the agent’s commission . . . .”

It adds insult to injury to say that the seller “failed to comply” with her obligation to sell. How relieved the seller should have been had the buyer persisted in buying the hurricane-inundated house! But the buyer refused to buy. It was thus the buyer, not the seller, who “failed, for any reason whatsoever to comply”.

Accordingly, even if it is “earned”, the seller does not owe the commission. If anyone does, it is the buyer.

The buyer, however, had the “choice either to take [the damaged house] in the state in which it is, or to dissolve the contract.” C.C. 2471.

The buyer’s lawful election to “dissolve the contract,” even over the objection of the seller, put an end also to the contract’s provision obliging the buyer to pay the agent’s commission as a penalty for “failing to comply”.

LEMMON, Judge

(dissenting).

The broker argues that it is entitled to the commission in accordance with the first paragraph of the following contract provisions :

“If this offer is accepted, seller agrees to pay the agent’s commission of 6% which commission is earned by agent when this agreement is signed by both parties and when the mortgage loan, if any, has been secured.
“Either party hereto who fails, for any reason whatsoever, to comply with the terms of this offer, if accepted, is obligated and agrees to pay the agent’s commission and all reasonable attorney’s fees and costs incurred by the other party, and/or agent in enforcing their respective rights.”

The broker contends that the commission became payable by the seller when the financing condition in this case was fulfilled by a subsequent agreement involving an assumption, and that its entitlement to the commission was not defeated by the subsequent fortuitous event which aborted the sale.

In my opinion the purpose of the first paragraph is to prevent the buyer and seller from mutually agreeing to cancel the agreement, to the prejudice of the broker’s commission. Because of the provision, the seller is bound (once the suspensive condition is fulfilled) to pay the commission if the parties cancel the sale.

This paragraph cannot fairly be construed to define the point in time that the commission is payable. The overall contract contemplates that the commission is payable at the act of sale, if. the sale is completed, or at the time of breach, if the sale is not completed. The paragraph should be construed, rather, as stating what conditions must be fulfilled for the seller to be liable if the sale is not completed because of agreement between the buyer and seller to cancel.

If, on the other hand, the sale is not completed because either the buyer or seller breaches the contract, the second paragraph imposes liability on the party “who fails, for any reason whatsoever, to comply with the terms of this offer, if accepted

Therefore, the first paragraph applies if the sale is completed or if the sale is can-celled by mutual agreement. Neither circumstance occurred in this case.

The second paragraph applies if the sale is not completed because either the buyer or seller fails to comply with his contractual obligation. Here, the seller did not fail to comply with her obligation to sell, but was ready and willing to do so. And the buyer, who did fail to comply with her obligation to buy, did so under the legal authority of C.C. art. 2471, which gave her the “choice either to take it in the state in which it is, or to dissolve the contract.

Under these circumstances neither the buyer nor the seller was obliged to pay the commission on account of failure to comply with the terms of the contract.

      . Plaintiff sued in her capacity as agent for Joseph J. Williams, Jr.'

      . At the time the contract was signed, defendant was doing business as Kit Carson Realty, Inc. The name was changed prior to filing this suit.

      .The judgment dismissed claims between buyer and seller and neither has appealed.

      . Thus, in actual real estate practice, a broker never transfers the amount of the commission from the' escrow account immediately upon acceptance and fulfillment of the financing condition.


author: GULOTTA, Judge.

text:
    Brenda F. BENSEL v. Fernando L. GOITIA.
    No. 7628.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 1976.

      McClendon & Denkman, Stuart A. Mc-Clendon, Metairie, for plaintiff-appellee.
    Joseph S. Russo, Jefferson, for defendant-appellant.
    Before GULOTTA, SCHOTT and MORIAL, JJ.
   GULOTTA, Judge.

This matter is before us on a motion to dismiss. The basis of the motion is that the costs for the preparation of the transcript were not timely paid to the clerk of the trial court before the extended return day, i. e., November 20, 1975. Appellant, in answer to the motion, claims the clerk of the trial court failed to notify him of the total costs due prior to the extended return day. Under such circumstances, appellant, relying on Gremillion v. Rinaudo, 240 So.2d 237 (La.App. 1st Cir. 1970), and LSA-C.C.P. art. 2126, contends that his failure to pay the full amount of the costs within the extended return date fixed by the trial court was not imputable to him. Finding no •merit to appellant’s contention, we dismiss the appeal.

LSA-C.C.P. art. 2126 states:

Art. 2126. Payment of costs
“The appellant shall pay to the clerk of the trial court, not later than three days prior to the return day or extended return day, all cpsts of preparing the record on appeal, and the filing fee required by the appellate court to lodge the appeal.”

In the instant case, it is clear that appellant did not pay the full amount of the costs before the extended return date fixed by the trial court. We note that the express language of LSA-C.C.P. art. 2126 does not indicate that the clerk of the trial court need notify appellant of the costs owed by him. Furthermore, as stated in Tropicana Hotel and Country Club v. Dantoni, 287 So.2d 817 (La.App. 1st Cir. 1974):

“ * * * The clerk is not required by law to notify the appellant of these costs as a condition precedent to the imputation of fault on appellant’s part. This is true because the legislature [sic] intent as expressed in Code of Civil Procedure Articles 2126, 2127, 2161 and R.S. 13:4445 (A) places the responsibility for appellate costs with the appellant. * * * ”

Under art. 2161, a motion to dismiss an appeal will be granted only if the irregularity, error or defect is imputable to the appellant. Louisiana Power & Light Company v. Lasseigne, 255 La. 579, 232 So. 2d 278 (1970). It is the duty of the appellant to keep informed of the amount of the fees and costs he must pay. Failure to timely pay the required charges is a deficiency attributable to the appellant and results in the dismissal of the appeal. Gay v. Winn Dixie Louisiana, Inc., 276 So.2d 900 (La.App. 1st Cir. 1973); Louisiana Power & Light Company v. Lasseigne, supra; Imhoff v. Imhoff, 311 So.2d 45 (La. App. 4th Cir. 1975), writ refused, 313 So.2d 831 (La.1975).

Accordingly, the appeal is dismissed.

APPEAL DISMISSED.

      . The motion to dismiss this appeal erroneously refers to January 9, 1976 as the extended return date. However, the record reflects that although an additional delay of 60 days from November 10, 1975 was requested, the trial judge granted an extension of 10 days from November 10, 1975.

      . Gremillion supra, cited by appellant, seems to indicate that the appellant is deemed to be without fault in failing to pay costs until such time as he is notified of the amount thereof by the clerk of the trial court. However, in arriving at this conclusion, the Gremillion court relied on Thompson v. War-
        mock, 229 So.2d 352 (La.App.3d Cir. 1969). The Thompson, case was decided prior to our Louisiana Supreme Court’s decision in Lasseigne, supra, the later Supreme Court case which indicated that it is incumbent upon the appellant to keep informed of the amount he must pay as costs of appeal.


author: BEER, Judge.

text:
    BANK OF LOUISIANA IN NEW ORLEANS v. Walter J. CAMPBELL, d/b/a Gulf Sales Company.
    No. 7279.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 1976.
    Rehearing Denied April 13, 1976.
    Writ Refused June 9, 1976.

      Richards & Hoepffner, Charles E. Richards, New Orleans, for plaintiff-appellee.
    Jesse S. Guillot, New Orleans, for defendant-appellant.
    Before SAMUEL, MORIAL and BEER, JJ.
   BEER, Judge.

Plaintiff-appellee, Bank of Louisiana in New Orleans (hereafter, Bank), sued defendant-appellant, Walter J. Campbell, d/ b/a Gulf Sales Company (hereafter, Gulf), seeking damages for Gulf’s failure to deliver the balance of previously ordered printed sales forms. The trial court awarded judgment in the amount of $1,451.60, the actual cost incurred by the Bank in securing delivery of the same number of identical forms from another supplier. From' that judgment Gulf suspensively appeals urging that the Bank’s written purchase order was orally cancelled.

Gulf additionally urges that the purchase order provided that shipment of the forms commence on May 1, 1973 to continue in increments of 150,000 per month for ten months thereafter and the Bank’s refusal to accept the total order of 1,500,000 during that time period constituted a breach of the terms of the contract and relieved Gulf of liability.

In January 1973, Gulf quoted the Bank the cost of supplying 1,500,000 forms. This price included “storage, freight, desk top delivery as often as required and billing each month only for deliveries made.” The Bank issued a purchase order for the forms dated January 26, 1973 which contained a handwritten notation that defendant would “ship 150 M on 5/1/73 and 150 M on [the] first of each month thereafter.” This notation further provided: “This total quantity is an estimate [of a] twelve month supply.” (Brackets added.)

The Bank received 793,000 forms from Gulf during the period June 1973 to July 1974. With the exception of the first delivery, the Bank prepaid each order before actual delivery and Gulf stored the forms until requested to make deliveries.

The Bank employee who originally handled the ordering of the forms left the Bank’s employ in August 1973. At the trial he testified that prior to his leaving the Bank’s employ he was instructed to advise Gulf that the Bank did not want any more forms to be delivered. Nevertheless, it is undisputed that although he left the Bank in August 1973, five separate deliveries of approximately 150 M each were subsequently made and paid for including deliveries in June and July, 1974. This is quite inconsistent with the assertion that the contract was cancelled in August 1973.

The trial judge apparently was of the view that there had not been an oral cancellation. We find no manifest error in this conclusion and feel bound by it. Canter v. Kaehring Co., 283 So.2d 716 (La.1973).

Gulf further contends that under the terms of the purchase order, the entire order for 1,500,000 forms was to be delivered within a year of first delivery set for May 1, 1973 and argues that the Bank’s failure to accept shipment of the entire order within this period relieves Gulf of liability.

Obligations entered into by parties have the effect of law between them. LSA-C.C. Article 1945. The manner in which individuals make contracts is diverse. Within the confines of the law, there are contained very few limitations as to the method, manner, fashion, or system by which one may obligate himself to perform. Gulf’s proposal provided that the price quoted included storage, and “desk top delivery as often as required.” Gulf did not impose any time limitations on delivery and did not provide for increased cost through an escalation clause.

The Bank’s purchase order is essentially an acceptance of Gulf’s proposal and the handwritten notations as to commencement of deliveries and handling simply indicate the Bank’s original estimation of consumption. When decreased usage of the forms became apparent, Gulf did not object 'but impliedly consented to continued storage with future shipments still to be delivered as indicated by the Bank’s needs. Both parties continued this arrangement through July 1974. They tacitly agreed to extend the terms of the original purchase order past any specific timetable. By its own actions, Gulf impliedly indicates a continuing willingness to store the forms and deliver them as requested.

Modification of a contract may be by implication, silence, or inaction, Alliance Manufacturing Co. v. Foti, 146 So.2d 464 (La.App. 4th Cir. 1962), writs refused, 243 La. 1005, 149 So.2d 763. If Bank’s purchase order constituted the written contract, Gulf’s acquiescence in changes in the delivery schedule constitutes a tacit acceptance of new terms. Their subsequent discovery of unforeseen factors that caused difficulty or increased expenses in the performance of their obligation cannot release them from the duty to perform. The fact that the cost of the forms went up was a problem between Gulf and its supplier. Gulf ordered 750,000 forms from its supplier on April 15, 1973 and agreed to secure the balance of 750,000 within fourteen months. They did not, however, order the balance from their supplier within that time period and costs went up. This cannot affect Gulf’s agreement with the Bank. No reference by incorporation or otherwise was made of the arrangements between Gulf and its supplier in the contract between Gulf and the Bank.

Although Gulf may have had some justifiable doubt about the Bank’s ultimate need for the balance of the forms that had been ordered, they took no affirmative action to resolve this doubt. It would be inequitable to permit one who has not fulfilled an agreement to successfully defend on the ground that the other party might not perform its obligations. Jones v. Whittington, 171 So.2d 764 (La.App. 2nd Cir. 1965), writs refused, 247 La. 624, 172 So.2d 703. Whatever fears Gulf had regarding the Bank’s performance cannot be a valid defense for failure to supply the goods at the price originally quoted after the extension of delivery dates was tacitly agreed to.

The quantum of the trial court’s award does not appear to be at issue.

Accordingly, the judgment of the Civil District Court for the Parish of Orleans is affirmed at appellant’s cost.

AFFIRMED.


author: SCHOTT, Judge. RED MANN, Judge

text:
    Jose Martin ORTIZ, t/a Latin American Distributors v. E. Lee AGERTON, Collector of Revenue, State of Louisiana.
    No. 7239.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 1976.
    Rehearing Denied April 13, 1976.

      Joseph J. Laura, Jr., New Orleans, for plaintiff-appellee.
    Ben F. Day, Baton Rouge, Robert L. Royer, Alexandria, Donald C. Theriot, Baton Rouge, Albert S. Rose, New Orleans, and James W. Murray, Baton Rouge, for defendant-appellant, Collector of Revenue, State of Louisiana.
    Before REDMANN, STOULIG, SCHOTT, MORIAL and BEER, JJ.
   SCHOTT, Judge.

After plaintiff was assessed for delinquent sales taxes pursuant to LSA-R.S. 47:301 et seq. he appealed to the Board of Tax Appeals for a redetermination of the assessment pursuant to R.S. 47:1431. He claimed that the transactions in question were exempt pursuant to R.S. 47:305.10 which provides in part as follows:

“There shall be no sales tax due upon the sales at retail of tangible personal property purchased within Louisiana for use exclusively beyond the territorial limits of Louisiana .
“The Collector of Revenue shall promulgate regulations for the implementation of this Section.”

After a hearing the Board dismissed the assessment for the apparent reason that the sales were exempt as export sales under the statute. The Collector then filed a petition for judicial review of the Board’s decision, pursuant to R.S. 47:1434. From a judgment of the District Court, affirming the judgment of the Board of Tax Appeals, the Collector has taken this appeal.

The provisions of R.S. 47:1435 are pertinent :

“The district courts shall have exclusive jurisdiction to review the decisions or judgments of the board, and the judgment of any such court shall be subject to further appeal, suspensive only, in accordance with law. If a suspensive appeal is taken from a judgment of the district court no further bond need be posted and the bond originally posted remains in full force and effect to guarantee the payment of any tax, interest, and penalty until final decision of the court.
“Upon such review, such courts shall have the power to affirm or, if the de-cisión or judgment of the Board is not in accordance with law, to modify, or to reverse the decision or judgment of the board, with or without remanding the case for further proceedings as justice may require.”

The record before us consists of the pleadings filed before the Board of Tax Appeals including correspondence between the parties and a transcript of testimony taken before the Board at a hearing on August 26, 1971. In early correspondence the Collector’s auditor informed defendant’s counsel relative to the claimed exemption. “A sale for export is described in Article 2-28 as packaged by the seller marked for export and then delivered to a common carrier and exported. Any sales not in strict conformity with this article are considered taxable as a retail sale.” The transcript, consisting of the testimony of an auditor for the Collector and the plaintiff together with much argument and discussion among counsel and members of the Board, shows that the implementation of Article 2-28 of the Collector’s regulations forms the crux of this dispute.

The Collector insists upon literal compliance with his regulation while the taxpayer contends that methods he employed to insure that the sales were bona fide export sales were adequate to bring them within the purview of the exemption provided by R.S. 47:305.10 even though the regulation was not strictly and literally complied with. In the words of plaintiff’s counsel at the hearing before the Board relative to the regulation, “ . . . it is not set up by law that if you don’t package it and put it on that plane and ship it then you can’t have your tax exemption— I don’t think that is the purpose of the law.”

The auditor testified that he inspected each sale on which the exemption was claimed over the 2]/2 year period in question, looking for the bill-of-lading mentioned in the regulation and in the absence of such disallowed the exemption. He found that defendant did show on most of the invoices a passport number or some other indication that the purchaser was in fact a foreigner. He admitted that defendant kept a careful record of the items he claims are exempt as opposed to the items which were to be used in this country. He found that some of the items were delivered to an airline and some were put on the docks, but he disallowed any and all items for which export documentation was not produced. Counsel for the Collector took the position at the hearing that the passport is not sufficient because the purchaser can stay in the country for sometime with a passport and his mere declaration that he is leaving on the next plane or ship does not necessarily mean that he is.

Plaintiff testified that some of the merchandise sold on the disputed invoices was delivered to and the money was collected at the wharf. The names of the boats and immigration card numbers were noted on some invoices and the foreign destination was secured in many by a sworn affidavit of the purchaser on the invoice. This affidavit stated, “I hereby swear that these goods are going to leave the United States of America.” Counsel for the Collector stipulated to the presence of this affidavit, but he contended that this does not necessarily mean that the items were placed irretrievably in the stream of foreign commerce.

The picture emerging from the hearing is somewhat confusing, but it appears that from an undetermined number of sales by plaintiff in the period involved, assessments were made in three categories, which are the subject of this suit. In the first category are cash sales to foreigners of items of clothing picked up by them at plaintiff’s store. In the second are cash sales to foreigners, mostly seamen, of small appliances, such as radios and tape recorders, and picked up by them at plaintiff’s store. In the third category are cash sales to foreign seamen of heavy appliances which were delivered by plaintiff to the docks. There is nothing in our records to show what portion of the assessment covered what category of sales, and because we have reached different conclusions with respect to the different categories it becomes necessary to remand this case to the Board of Review for further proceedings in accordance with R.S. 47:1435.

The exemption provided by R.S. 47 :- 305.10 claimed by plaintiff is required by Art. 1. § 10, cl. 2 of the Constitution of the United States, which provides as follows :

“No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress.”

The Collector is authorized to promulgate regulations implementing R.S. 47:305.10. Any such regulation must be consistent with the Constitutional provision exempting exports from state sales tax. If the regulation relied upon by the Collector is inflexibly and strictly applied in every case it becomes obvious that some bona fide export sales would become taxable in violation of the Constitution.

On the other hand, some reasonable regulations are necessary to guard against the fraudulent invocation of the exemption and to secure a fair and uniform system of sales tax collection.

In interpreting this provision of the Constitution the Supreme Court of the United States has held that the exemption from state taxes applies where there is a certainty that the goods are headed to sea and that the process of exportation has started. Richfield Oil Corp. v. The State Board of Equalisation, 329 U.S. 69, 67 S. Ct. 156, 91 L.Ed. 80 (1946). In that case it was held that such a certainty is best proved by the fact that the goods have been delivered to a common carrier- for that purpose, but the degree of certainty may exist even though no common carrier is involved.

In Empresa Siderurgica v. County of Merced, 337 U.S. 154, 69 S.Ct. 995, 93 L. Ed. 1276 (1949), the Supreme Court of the United States said:

“It is the entrance of the articles into the export stream that marks the start of the process of exportation. Then there is certainty that the goods are headed for their foreign destination and will not be diverted to domestic use. Nothing less will suffice.”

Our own Supreme Court in Trestman v. Collector of Revenue, 233 La. 437, 96 So.2d 713, did not consider the fact that sales were made to foreign seamen as sufficient to show a certainty that they were export sales and they were presumed • to be retail sales and subject to taxation.

These authorities are dispositive of plaintiffs argument with respect to the category one sales. The mere fact' that the customer who picked up articles of clothing at'plaintiff’s store was a foreigner or seaman with a passport or immigration card did not necessarily place the articles in the export stream. There was no certainty that these goods were headed for a foreign destination after they left plaintiff’s store. The same is true even if the customer displayed an airline ticket for a foreign destination or made an affidavit of intention to take the goods abroad. We do not hold that the regulation’s delivery to a common carrier is the only means by which the exemption comes into being but plaintiff’s methods with respect to the clothing sales do not support an invincible claim to the exemption. Because the record does not show what part of the assessment was made for sales in this category the case must be remanded to the Board for determination of the issue.

As to the sale of small appliances picked up by foreigners and seamen in plaintiff’s store, it was argued at the hearing before the Board that these appliances could not be used in the United States because of their voltage and electrical phase cycle. There is no evidence to show that these appliances could not be used with a transformer or adapter and it would constitute speculation on our part to hold that such is the case. If they could be used the same rule applies to these small appliances as applies to the sales of clothing, and the exemption would not apply. On the other hand, if it can be shown that it would have been economically and practically unfeasible to adapt these appliances for use in the United States there may be a factual basis for finding the certainty that they were bound for export. The case will be remanded to the Board of Review so that the parties may introduce evidence on this point.

As to the sales of heavy appliances, plaintiff testified that once these things were delivered to the docks they could not be removed. He said:

“The emigration in this country clearly says, as well as the United States or the New Orleans Chamber of Commerce for the Wharf — that anything that pass the limits of the wharf and it’s put there, you can’t take it back, sir. For you to take back those goods you have to file documents. They would never allow to take it back.”

While this testimony tends to show the certainty that these goods were bound for export it is undocumented and uncorroborated and does not meet the test for certainty laid down in the cited cases from the United States Supreme Court. However, in the interest of justice as provided for in R.S. 47:1435 the case will be remanded to the Board of Review for additional evidence on that point, as well.

Accordingly, the judgment appealed from is reversed and set aside and the case is remanded to the Board of Tax Appeals for further proceedings consistent with the views we have expressed herein. All costs to date are to be paid by plaintiff. Additional costs are to await the final determination of the case after the hearing before the Board of Tax Appeals on remand.

REVERSED AND REMANDED.

REDMANN, J., dissents.

RED MANN, Judge

(dissenting).

The legislature has commanded that “There shall be no sales tax due upon the sale at retail of tangible personal property purchased within Louisiana for use exclusively beyond the territorial limits of Louisiana.” R.S. 47:305.10. That section recognizes the practical difficulty of distinguishing sales for use outside the state, and therefore adds that the collector “shall promulgate regulations for the implementation of this Section” (emphasis added).

The collector’s regulation 2-28 does not “implement” the statute’s provision relative to use outside Louisiana, because it exempts only sales for export outside the United States. Similarly, the regulation does not implement the statute’s provision because it requires exportation by common carrier. The regulation is not an implementation, a carrying out, of the statute: it is a defeating, a veto, of the statute. It is patently beyond the collector’s authority and must be ignored insofar as it would impose taxes.

The question, then, is whether § 305.10 covers appellee’s sales to foreign seamen. The fair answer is that it does, because ap-pellee has made a much more rational effort to comply with its terms than the collector has. It is true that a seaman, with a foreign passport and a temporary immigration permit for the few days his ship is in port, may buy articles for friends in Louisiana rather than for use exclusively outside Louisiana. So may Mississippi residents. The legislature, in effect, told the collector to solve this difficulty by regulation. That the collector has apparently refused to do so is no justification for making appellee pay a tax that the legislature has said shall not be due.


author: STOULIG, Judge.

text:
    ALTON OCHSNER MEDICAL FOUNDATION and Argonaut Insurance Company v. Laura FALKINS.
    No. 7449.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 1976.
    Lemle, Kelleher, Kohlmeyer & Matthews, Paul B. Deal, New Orleans, for plaintiffs-appellees.
    E. Howard McCaleb, III, New Orleans, for defendant-appellant.
    Before LEMMON, GULOTTA and STOULIG, JJ.
   STOULIG, Judge.

This is a somewhat unusual case in that the plaintiff-employer, Alton Ochsner Medical Foundation, and its workmen’s compensation insurer, Argonaut Insurance Company, filed this suit to have the court determine whether compensation benefits are owed to the defendant-employee, Laura Falkins. The employee filed a claim for disability benefits arising out of an accident which occurred on July 6, 1973 while acting in the course and scope of her employment. As a part of their suit, plaintiffs included a request for a medical examination in order to evaluate her claim of disability. Defendant refused to submit to the examination and was ordered to do so by the court. The employee filed a reconventional demand for compensation benefits, which was denied on a finding that plaintiffs were not liable. Defendant has appealed.

The chronology of her work history with Ochsner is significant in weighing the merits of her claim. The record establishes these facts:

On August 22, 1972 she was hired as an aide in the hospital’s dietary department.

On January 8, 1973, she was treated in the Ochsner emergency room for complaints of fainting and nausea. At the time defendant was in the early stages of pregnancy with her second child.

On May 4, 1973, the employee was seen in the emergency room at Oschner for complaints of low back pain. Her medical records reflect complaints of intermittent episodes of low back pain since the birth of her first child.

On May 30, 1973 defendant was treated in the emergency room with complaints of stomach pain due to her sixth month of pregnancy.

On June 11, 1973 she was treated for a headache. (We note here that medical treatment is rendered without charge to Ochsner employees.)

On July 6, 1973 defendant complained of a fall in the hospital kitchen, which allegedly occurred when she slipped in a puddle of water on the floor while carrying a tray of celery into the freezer. She was immediately examined by a resident physician in the emergency room and advised to go home for three days because of her advanced pregnant condition.

On July 11, 1973, Mrs. Falkins was examined by another resident physician at Ochsner and informed she could return to work. Because of her pregnancy, she immediately took a leave of absence, during which time she was paid $443.53 in sick leave and insurance disability payments.

On August 15, 1973, an examination by Dr. A. William Dunn, an orthopedist at Ochsner, revealed no neurological deficit, no bone or joint abnormality, no neuro-musculoskeletal cause for pain and no treatment was indicated.

On October 18, 1973, defendant returned to work after her second child was born and continued in her employment without incident for more than three months.

On February 8, 1974, she was treated in the Ochsner emergency room for complaints of backache and was instructed to take three days off. On February 11, she was reexamined and told she could return to work.

On March 22, 1974, she was either terminated or voluntarily left her employment after her attorney made a letter demand upon the employer for compensation benefits for the alleged disability sustained as a result of the July 6, 1973 fall.

We need not chronicle the ensuing contacts between the litigants to illustrate the lack of connexity between the alleged accident and the subsequent complaints of disability. As will be noted from the summarized facts, the claimant first alleged she suffered a disability from the slip-and-fall accident more than seven months after it occurred. This lapse of time per se is not conclusive proof she did not suffer a disabling job-connected injury if competent evidence is adduced to prove the contrary. But in the case before us neither the lay nor the medical testimony establishes Laura Falkins suffered any disability as a result of her accident.

Several neighbors were called to testify that Mrs. Falkins had trouble bending, reaching, and lifting because of back complaints. There was no effort to relate the alleged impairment to the July incident by testimony that prior to the accident she could do all these things. In fact her medical record at Ochsner indicates she first began experiencing low back pain after the birth of her first child, which was long before the accident.

Defendant presented as her.medical expert her treating physician, Dr. Louis En-senat, a general surgeon, who was imprecise in describing her condition as disabling. This witness diagnosed the defendant’s condition as one of back spasms with limitation of motion, for which he treated her for a period of approximately seven months with diathermy and prescribed muscle relaxants, analgesics and a lumbo-sacral support. He prescribed this regimen of treatment without the benefit of x rays, the utilization of a myelogram or consultation with either a orthopedic or neurological specialist. Obviously the trial court was not impressed with this or other testimony adduced on behalf of the defendant in view of its finding that the employee failed to prove by a preponderance thereof that her subjective complaints of disability were caused by the accident of July 6, 1973.

In summary we likewise find no evidence of disability causally connected to a job-related injury and accordingly affirm the judgment of the trial court.

AFFIRMED.

      . R.S. 23:1311.

      . Defendant initially contacted Dr. Ensenat on March 14, 1974 at the suggestion of her attorney and was discharged on August 31, 1974 after receiving 00 diathermy treatments and being fitted with a lumbosacral support on July 24. She returned on October 11, 1974 and was administered 14 more diathermy treatments and was discharged on October 31, 1974.


author: LEMMON, Judge.

text:
    Oscar UMBEHAGEN v. EQUITABLE EQUIPMENT COMPANY.
    No. 6946.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 1976.
    Rehearing Denied April 13, 1976.
    Writ Refused June 11, 1976.
    Steven R. Plotkin and Owen J. Bradley, Kronlage, Dittman & Caswell, Charles A. Kronlage, Jr., New Orleans, for plaintiff-appellant.
    Normann & Normann, Charles E. Leche, New Orleans, for defendant-appellee.
    Montgomery, Barnett, Brown & Read; Wood Brown, III, New Orleans, for Employers Mut. Liability Ins. Co. of Wisconsin, amicus curiae.
    United States Dept, of Labor, William J. Kilberg, Solicitory of Labor and Joshua T. Gillean, II, Washington, D. C., for Director, Office of Workers’ Compensation Program, U. S. Dept. of. Labor, amicus curiae.
    Before SAMUEL, LEMMON and GU-LOTTA, JJ.
   LEMMON, Judge.

This is an appeal from a summary judgment dismissing plaintiff’s suit for workmen’s compensation benefits. The sole issue is whether plaintiff, under the circumstances of this-accident, can elect to- pursue his compensation claim under the Louisiana Workmen’s Compensation Act, R.S. 23 :1021 et seq., or whether the Longshoremen’s & Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq., as amended in 1972, provides his exclusive remedy.

Plaintiff, employed as a shipfitter by Equitable Equipment Company in a barge and boat building operation, was injured while working on barge assembly inside a fabrication building used exclusively for ship construction. The building adjoined the Industrial Canal (admittedly a navigable waterway), separated from the water by a narrow area in which a movable loading crane was located. In the course of Equitable’s operation, barges were assembled in the fabrication building, then moved into an adjacent area for blasting and painting, and finally launched directly into the Industrial Canal.

I

The pertinent provisions of the amended federal act as to coverage of accidents in areas adjoining navigable waters are:

“§ 902.
“When used in this chapter—
* * * * * *
“(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).
“§ 903.
“(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). * * *»

The federal act undoubtedly applies under the circumstances of this case. Plaintiff was employed and actively working in the building of a barge and thus was a shipbuilder under any reasonable interpretation of § 902(3), and he therefore qualified as an employee. Equitable’s employees worked in maritime employment, as included in the illustrations listed in § 902(3), in an area adjoining navigable waters customarily used by Equitable in building vessels, and Equitable thereby qualified as an employer under § 902(4). Moreover, the injury occurred upon navigable waters as defined in § 903 (a).

We therefore reject plaintiff’s contention that his claim was not cognizable under the federal act because he was not directly involved in the building of a vessel, but was simply fabricating parts used by other Equitable employees in shipbuilding. The 1972 amendments extended coverage to all employment-related injuries occurring within the territorial limits established by the amended act, when both the employer and employee qualify as such under a broad construction of the terms of the act.

We hold that the amended federal act provides coverage under the facts and circumstances of this case.

II

The more difficult question is whether application of the state act is precluded when jurisdiction under the federal act exists.

Plaintiff contends that benefits under the state act in this particular case are “much more generous” (perhaps because of Louisiana’s liberal standards for determining total disability) and that he should be allowed to elect between concurrently applicable compensation remedies so as to achieve optimum recovery of benefits. On the other hand, Equitable contends that the very purpose of the 1972 amendments was to eliminate the “twilight zone” of concurrent jurisdiction by providing for exclusive recovery under the federal act where that act applies. These contentions raise questions as to the pre-eminence of the federal maritime power in cases where states have otherwise valid legislative jurisdiction.

Congress has the power and authority to legislate compensation liability for accidents occurring over navigable waters. Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L. Ed. 598 (1932). Arguably, Congress also has the power and authority under Articles I and III of the United States Constitution to legislate liability for shoreside accidents incurred in maritime employment. See Victory Carriers, Inc. v. Law, 404 U.S. 202, 92 S.Ct. 418, 30 L.Ed.2d 383 (1971).

Thus, the issue framed in this case is whether Congress in exercising this power and authority pre-empted the field and thus precluded states from exercising legislative jurisdiction over maritime employment injuries occurring on land.

Historical Background

The United States Supreme Court in Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917), held that a state compensation act did not apply to a longshoreman injured aboard ship while loading cargo. Since the nature of the employment and the site of the injury were maritime, the state could not validly legislate liability and thereby prejudice the constitutionally required national uniformity of the maritime law.

Thereafter, in Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 42 S.Ct. 157, 66 L.Ed. 321 (1922) the Supreme Court established the “maritime but local” test, holding that the required uniformity was not prejudiced by the application of state law when plaintiff’s injuries occurred during construction of a partially completed vessel lying in a dry dock on navigable waters. The court characterized the contract for constructing the vessel as non-maritime and plaintiff’s activities and general employment as not related directly to navigation. Subsequent cases drew fine distinctions based on abstract concepts in individual cases.

In 1927 Congress enacted the Longshoremen’s and Harbor Workers’ Compensation Act Section 3 of the act originally provided in pertinent part:

“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.” (Emphasis supplied)

After an ensuing period of confusion caused by the perplexing problem of determining when a state could or could not grant protection under a compensation act, the “twilight zone” rule was introduced in Davis v. Department of Labor & Indus., 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246 (1942), which held that a state compensation act could be applied in cases in which workers “occupy that shadowy area within which, at some undefined and undefinable point, state laws can validly provide compensation.” In effect the “twilight zone” rule allowed workers to elect the forum in cases where the proper forum was difficult to determine, thus preventing workers from losing rights by choosing the wrong forum.

Concurrent jurisdiction was subsequently recognized in Bethlehem Steel Co. v. Moores, 335 U.S. 874, 69 S.Ct. 239, 93 L.Ed. 417 (1948), which held that a state compensation act could be applied in the case of an injury incurred in ship repair, an activity which had been classified as federal under the “maritime but local” test. In fact, the Supreme Court has not denied application of state compensation laws on grounds related to the “local concern” doctrine since shortly after the original federal act was passed.

Furthermore, in the 1960’s the Supreme Court probably wrote out the “may not validly be provided by State law” limitation of the original Section 3, holding in Calbeck v. Travelers Ins. Co., 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962), (without overruling Davis) that the act always applies when the injury occurs on navigable waters, and in Nacirema Operating Co. v. Johnson, 396 U.S. 212, 90 S.Ct. 347, 24 L.Ed.2d 371 (1969), that the act never applies when the injury does not occur on navigable waters.

The 1972 Amendments

The federal act was originally designed to provide compensation to those employees who could not constitutionally be covered by state acts. Various periods of uncertainty ensued, and finally the federal line was drawn in recent decisions at the water’s edge, thus limiting federal coverage for certain longshoremen and harbor workers to only the parts of their working days spent over water.

In 1972 Congress accepted the invitation in the Nacirema opinion to “move the line landward” and included this extension of jurisdiction in a comprehensive revision of the federal act. In reporting on this phase of the legislation, the House Committee on Education and Labor observed:

“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 Law recommended standard . .
The report concluded:
“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, shipbreak-ers, 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.” (Emphasis supplied) 3 U.S.Cong. & Adm.News 72’ #56 (p. 4707-8)

III

Referring to this stated intention, Equitable contends that Congressional enactment of the recommended legislation indicates, at least by implication, the intention for preemption by the new federal act.

While the 1972 amendments extended federal law under the admiralty power into an area which was formerly subject only to state regulation, the extension does not automatically terminate the state’s power of regulation. As stated in Askew v. American Waterways Operators, Inc., 411 U.S. 325, 93 S.Ct. 1590, 36 L.Ed.2d 280 (1973), in reference to the Admiralty Extension Act:

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

Thus, state power was not pre-empted unless it was the clear and manifest purpose of Congress to do so or unless the exercise of dual authority is repugnant to the Congressional objective.

We believe the history and wording of the 1972 amendments do not reasonably evidence Congressional intent to preclude applicability of state compensation laws in the extended area. The principal concern of Congress was that the federal act would always apply to these particular employees, not that the state act might sometimes apply. The “uniformity” desired was for adequate minimum benefits, payable to those employees engaged in maritime employment who previously were sometimes in and sometimes out of federal coverage. Congress sought uniform applicability, not uniform and exclusive applicability.

Under the amended act these particular employees are now assured benefits at a level deemed adequate by the Congress. Achievement of this purpose, however, does not require exclusion of state power to provide a more favorable remedy. Congress neither had nor should have had any compelling concern as to whether some states might provide greater benefits under some situations, as long as there was no double recovery. On the other hand, a state has a legitimate interest in applying its compensation laws to injuries incurred within its jurisdiction.

Equitable argues, however, that the elimination of the “may not validly be provided by State law” limitation evidenced the Congressional intent that state law cannot operate in areas where the federal act applies. We disagree.

That limitation led to the original conclusion that the then-new federal system and the existing state system were mutually exclusive. Elimination of the unworkable limitation from the newly-renovated federal system is therefore a stronger argument for concurrent jurisdiction than for exclusive federal jurisdiction. Gilmore & Black, Law of Admiralty 425-426 (2d ed. 1975). Furthermore, the limitation had already effectively been written out by judicial decisions, as previously noted.

Nor can we say that the Congresional action was so pervasive as to compel the conclusion that state law could no longer operate within the expanded territorial limits. Indeed, academic discussion of the expanded jurisdiction has suggested that concurrent jurisdiction is the only workable policy, the following being particularly pertinent:

“On grounds of policy it seems undesirable in the highest degree to construe the amendments as having reintroduced the idea that the federal and state compensation systems are mutually exclusive. That had of course been the construction given to the 1927 Act under the ‘may not validly be provided by state law’ limitation. That construction led to the horrors of the ‘maritime but local’ period, from which the Supreme Court rescued us by the invention of the twilight zone in the 1942 Davis case. The twilight zone has its own difficulties, conceptual and otherwise, but, in practice it seems to have worked reasonably well. Indeed, a theory of concurrent jurisdiction (whether it is called a twilight zone or something else) seems to be the only sensible way of dealing with state and federal statutes which meet at some vaguely defined line. If LHCA is taken to be exclusive up to its new territorial limits, injured maritime workers will have to guess at where the new line (piers, wharves and so on which ‘adjoin’ navigable waters) is located just as such workers during the 1930’s and early 1940’s had to guess at where the ‘maritime but local’ line was located. Eventually the Supreme Court would no doubt find the resulting situation intolerable, and would rescue us once again by establishing a new theory of concurrent jurisdiction. But there seems to be no good reason why we should be condemned to relive the depressing episode of the 1927-1942 ‘maritime but local’ LHCA case law.
* * * * * *
“If we assume a concurrent jurisdiction (or twilight zone) solution to the problem, what are its limits to be? The pre-1972 twilight zone involved the seaward extension of the coverage of state statutes, not (at least after the Nacirema case) the landward extension of the coverage of LHCA. If the only purpose of twilight zone theory is to make it unnecessary for claimants to guess at the precise location of an invisible line, that purpose will be served by locating the post-1972 twilight zone at the outer limits of the landward extension of LHCA. Under that approach workers injured at or near the ‘adjoining navigable waters’ line should he entitled to claim under either the state or the federal act. We have already suggested that ‘adjoining’ should be broadly construed with respect to claims under LHCA; adoption of a twilight zone approach would allow both the deputy commissioner and his state counterpart to operate on both sides of the line.” (Emphasis supplied, footnotes omitted) Gilmore & Black, Law of Admiralty 425-426 (2nd ed. 1975).

Neither can § 905(a) support Equitable’s contention that the 1972 amendments required exclusive federal jurisdiction.8 First, § 905 was not amended in 1972, but has existed in its present form since 1927 and has not barred state remedies in concurrent jurisdiction cases. More importantly, the exclusivity language of § 905(a) is merely a statement of the basic compensation theory that an employer who is statutorily obligated for compensation benefits is likewise statutorily absolved from tort liability. Obviously, the “exclusive” liability language of § 905(a) cannot reasonably be interpreted to preclude resort to the state compensation system in a concurrent jurisdiction situation. See Industrial Commission v. McCartin, 330 U.S. 622, 67 S.Ct. 886, 91 L.Ed. 1140 (1947), in which an employee, after receiving compensation under Illinois law which contained a similar exclusivity provision, was allowed to receive a supplemental award in Wisconsin.

Finally, we cannot determine that there is such a conflict between the federal and state acts that the two acts cannot consistently stand together. Certainly there is no physical impossibility for application of concurrent jurisdiction (at least, not as to the issues raised in this case). Furthermore, while there may be some areas of conflict between the two systems, these are not such as to compel a total divestiture of state power.

We conclude that Congressional enactment of the 1972 amendments to the federal act did not absolutely pre-empt the power of the states to provide a compensation system for injuries occurring on land within the state.

For these reasons, the judgment of the trial court is set aside, and the case is remanded for further proceedings. Costs of this appeal are assessed to defendant.

SET ASIDE AND REMANDED.

      . For a challenge to the constitutionality of this legislative power, see Halter Marine Fabricators, Inc. v. Nulty, No. 75-2317, presently pending in the U. S. Court of Appeals for the Fifth Circuit.

      . The emphasized portion of Section 3 was omitted when the section was amended in 1972. See § 903(a), quoted supra.

      . See Larson, Workmen’s Compensation § 89.20 (Desk ed. 1973), for a detailed discussion of the evolution of the applicable rules prior to the 1972 amendments.

      . The authors argued:
      “The case for construing the amendments to provide for concurrent state and federal jurisdiction is strengthened by the fact that § 903(a), as revised, no longer contains the ‘may not validly be provided by state law’ limitation. It was that limitation which led to the original conclusion that the new federal system and the existing state system were to be mutually exclusive. 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.”

      . The term “twilight zone” has developed a different meaning from the original usage, now connoting generally an area of concurrent jurisdiction.

      . § 905(a) reads in pertinent part: “§ 905.
      “(a) The liability of an employer prescribed in section 904 of this title shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death . . . .”

      . “The purpose of expanding federal coverage was to insure a substantial remedy. In light of the confusion likely to arise as to the coverage of the amended Act, it would seem contrary to this purpose to force an injured employee to seek compensation under the state or federal scheme, only to be told his guess was incorrect. Dual coverage would seem to aid rather than hinder this function. The employer is in no way disadvantaged, as the cost of insuring for both acts is minimal and double recovery would of course not be allowed.” (Footnotes omitted) Watson, Broadened Coverage under the LHWCA, 33 La.L.Rev. 683, 695 (1973).


author: BEER, Judge. REDMANN, Judge PER CURIAM.

text:
    Rivers HALL v. KAISER ALUMINUM COMPANY.
    No. 7345.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1976.
    Rehearing Denied March 16, 1976.

      J. Terrell Heath, New Orleans, for plaintiff-appellant.
    Lemle, Kelleher, Kohlmeyer & Matthews, William S. Penick, New Orleans, for defendant-appellee.
    Before REDMANN, MORIAL and BEER, JJ.
   BEER, Judge.

Plaintiff-appellant, Rivers Hall (hereafter, Hall) filed this workmen’s compensation suit in the Twenty-Fifth Judicial District Court for the Parish of St. Bernard on October 4, 1974. Defendant-appellee, Kaiser Aluminum & Chemical Company (hereafter, Kaiser) peremptorily excepted to Hall’s petition, contending that Hall’s claim had prescribed on October 1, 1974, one year subsequent to his alleged injury. After a full hearing on the exception, the trial court dismissed Hall’s suit. The sole issue before us is the correctness of the trial court’s determination that there was no merit to Hall’s contention that he received wages in lieu of compensation, thus interrupting prescription. We find that the record supports the trial court’s deter-’ mination and affirm.

Since the suit was filed more than a year after the accident, Hall had the burden of showing that prescription had been interrupted. Gulling v. E. I. Dupont de Nemours & Co., 228 So.2d 750 (La.App.4th Cir. 1969.) The only evidence which he offered in support of this contention was his uncorroborated testimony that while he reported to work and received his pay until his discharge in December, 1973, he had not performed any services whatsoever following his alleged injury on October 1, 1973.

The only period of time that is really important to this decision is the period between October 1, 1973 and October 4, 1973. If Hall was, as he alleged, receiving what would constitute wages in lieu of compensation during that brief period, his suit filed on October 4, 1974 would be timely. However, the record supports a finding that this was not the case. We believe that the trial court was correct in making a credibility determination adverse to plaintiff. There was a direct contradiction between witnesses in connection with the question of whether Hall worked or just sat around during this crucial period aqd we will not disturb the trial court’s credibility call. Canter v. Koehring Co., 283 So.2d 716 (La., 1973).

The judgment is affirmed at appellant’s cost.

Affirmed.

REDMANN, Judge

(dissenting):

Defendant’s foreman’s testimony is that plaintiff was on light duty from other causes prior to this accident, cleaning and sweeping instead of doing his regular heavy work. The foreman was on vacation one to three weeks after the accident. Upon his return, he found plaintiff continuing to do light work, he testified, eight hours a day, “except the days that the medical department sent him to [sic], which I suppose was for his former accident.” “If he was sitting [doing nothing] it was without my knowledge and without my permission.” This testimony supports the conclusion that part of plaintiff’s wages was in lieu of compensation. The exception of prescription should be overruled.

ON REHEARING

PER CURIAM.

Able counsel for appellant has made timely application for a rehearing based upon the contention that the uncon-troverted testimony of the plaintiff must be accepted as true citing, as authority, Excel Finance Mid City, Inc. v. Williams, 205 So.2d 846 (La.App. 4th Cir. 1968). While the record supports a conclusion that plaintiff’s testimony is, in fact, controverted, we have, nevertheless, given consideration to this contention particularly because of the dissenting opinion of our colleague.

We are more persuaded by Polit v. Babcock, 232 So.2d 916 (La.App. 4th Cir. 1970) in which this court reiterated the rationale expressed in Franklin v. Texas & Pacific Railroad Co., 35 So.2d 251 and 35 So.2d 867 (Orl.La.App.1948). In Polit, supra, this court stated that:

“While it, is true that the testimony of a plaintiff alone may be sufficient to support a claim, it is equally true that these circumstances require testimony that is consistent and in keeping with those points of reference which are known to the court . . . Here, the trial judge, noting that the plaintiff’s testimony concerning flooding was at odds with the official weather data and certain alterations made by the defendant, concluded that the plaintiff’s evidence concerning these damages did not meet this test. We see no manifest error in this ruling.”

In Hollier v. Broussard, 220 So.2d 175 (La.App. 3rd Cir. 1969), the court affirmed a trial court’s ¡judgment denying plaintiff-appellant the right to proceed in forma pauperis. The only evidence at the hearing was the testimony of the plaintiff. The court stated:

“However, the trial court did not accept as credible the plaintiff’s testimony as to his lack of income .
“We are unable to hold that the trial court committed manifest error in construing the testimony of the plaintiff, and the context of the entire circumstances reflected by it, a showing that the community earnings were substantially in excess of that which the plaintiff testified. The uncontradicted testimony of a witness should normally be accepted as truthful. Nevertheless, this principle does not apply when the record reflects circumstances reasonably casting doubt upon the credibility of the witness.” (citations omitted).

In Ramos v. Matson Nav. Co., 316 F.2d 128 (Ct. of App. 9th Cir. 1963), the court stated:

“We have long since abjured the notion that a court cannot reject ‘uncontradict-ed’ testimony that it finds not worthy of belief.”

In Wood v. C. I. R., 338 F.2d 602 (Ct. of App. 9th Cir. 1964) the same court observed that:

“We know of no rule that uncon-tradicted testimony must be accepted by a court finding the facts, particularly where, as here, the testimony is given by interested parties. These parties appeared in person before the Tax Court and the court had the opportunity to note the demeanor and manner of testifying of the witnesses, the mode in which they responded to questions on cross-examination, their readiness to answer or hesitation as the case may be, and all these are matters as to which we have no equal opportunity of judging. .We were confronted with a similar situation in National Labor Relations Bd. v. Howell Chevrolet Co., 9 Cir., 204 F.2d 79, 86, where we stated: ‘Respondent maintains that the trial examiner was obliged to accept as true statements made by its own witnesses when those statements were not contradicted. It says:. “It is well settled law that where a witness’ testimony is not contradicted, a trier has no right to refuse to accept it.” This is an ancient fallacy which somehow persists despite the courts’ numerous rulings to the contrary. It overlooks the significance of the carriage, behavior, bearing, ■manner and appearance of a witness,— his demeanor, — when his testimony is given orally in the presence of the trier of facts. As stated by the Court of Appeals for the Second Circuit in a recent case, Dyer v. MacDougall, 201 F.2d 265, 269; “Moreover, such evidence may satisfy the tribunal, not only that the witness’ testimony is not true, but that the truth is the opposite of his story; for the denial of one, who has a motive to deny, may be uttered with such hesitation, discomfort, arrogance or defiance, as to give assurance that he is fabricating, and that, if he is, there is no alternative but to assume the truth of what he denies.” ’ ”

Wigmore, in his work on Evidence, Third edition, Volume 7 Second 2034, page 260 states:

“Conversely, the mere assertion of any witness does not of itself need to be believed, even though he is unimpeached in any manner; because to require such belief would be to give a quantative and impersonal measure to his testimony.”

We believe that the expression of the court in Wood, supra and the observation by Wigmore states the correct position and we adopt it here. The application is denied.

REHEARING DENIED.


author: REDMANN, Judge.

text:
    LIBERTY MUTUAL INSURANCE COMPANY v. Sarah WEINBERGER.
    No. 7163.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 1976.
    Rehearing Denied April 13, 1976.

      Robert A. Katz, Metairie, for plaintiff-appellee.
    Maury A. Herman, Fred Herman, Herman & Herman, New Orleans, for defendant-appellant.
    Before REDMANN, STOULIG and BEER, JJ.
   REDMANN, Judge.

Injured in a two-automobile collision, defendant was paid medical expenses under her host-driver’s vehicle insurance policy. That policy entitled the insurer to reimbursement from defendant out of any recovery from any person legally responsible for the injury causing the medical expense. Defendant settled with the other driver’s insurer, but refused to reimburse her host’s insurer. This suit followed, with judgment for the insurer and appeal by defendant. We affirm.

We ignore the “Reimbursement Agreement” which the insurer obliged defendant to sign, over her protest, as a prerequisite to payment of the $2,000 its policy obliged it to pay. Neither the insurer nor defendant intended to make any gift or compromise by that document, and it therefore cannot expand or contract either’s rights. Its wording (“settlement of judgment”) is thus immaterial.

Defendant stipulated that the other driver had driven through a stop sign into her host’s car. This showed legal responsibility by that driver for plaintiff guest-passenger’s injury.

Defendant argues that the policy’s reimbursement provision is against public policy, noting that La.R.S. 22:1406, subd. D(4) expressly provides analogous recovery in uninsured motorist coverage, while no such express legislative provision exists as to medical payments coverage. Defendant would suggest that it would be against public policy for her private hospitalization insurer to exact reimbursement like that here sought, and since she is the third-party beneficiary of her host’s private medical payments insurance, it is equally unacceptable for plaintiff insurer to exact reimbursement.

We respond, first, that R.S. 22:611 makes § 620, subd. A applicable to all insurance but ocean marine and foreign trade, and § 620, subd. A allows policies to contain “any provisions or conditions required by its plan of insurance or method of operation which are not prohibited by the provisions of this [Insurance] Code.” There is no prohibition of provisions such as ours. By analogy, § 1406, subd. D(4) (and § 691, providing subrogation in the standard fire policy) would support allowing a similar provision in medical payments policies. The “plan of insurance” that this insurer offered through this policy proposed a premium reduction in return for the net risk reduction brought about by the reimbursement provision.

Second, we add that public policy prefers reimbursement provisions in order to have the reduction in premium. There is no public advantage to the entire public paying a higher insurance premium in order that injured persons can collect twice for the same medical expenses.

Finally, we respond to defendant’s concern that she has had to pay attorney’s fees to obtain a settlement from which plaintiff insurer seeks reimbursement without contribution to attorney’s fees. This policy does not attempt to collect from a settlement irrespective of fees and costs. Here, the policy’s reimbursement (like that of uninsured motorist coverage, § 1406, subd. D(4)), is from “proceeds” of judgment or settlement, which could not result in the insured experiencing a loss by having to pay both 100% of a recovery to an insurer and an additional, say, 35% to a lawyer for fees and costs: the insurer’s recovery comes only out of the net 65% “proceeds”. The practical effect of this reimbursement provision is to make the insurer assume only the risk that the third-party tortfeasor may delay paying a claim because of a dispute over liability, or may be judgment-proof even if admitting liability. The insurance coverage is in a sense equivalent to a loan, repayable only in the event, and to the extent, that proceeds are obtained from a settlement or judgment with the tortfeasor.

It may seem questionable, at first glance, that the “insurer” recovers 100% of its outlay, while the “insured” does not, which occurs whenever the “proceeds” equal or exceed the amount the insurer paid. When this is the case, the insured does end up in the same final posture (ignoring possible interest accrual differentials) as if there were no insurance: but meanwhile the insured has received the same amount from the insurer immediately as he would have received (as “proceeds”) from the tort-feasor only after litigation. And when it is not the case that the proceeds suffice to repay the insurer, then the insured has had the additional benefit of collecting from the insurer money that could not have been collected from the tortfeasor at all.

The insurance before us insured against no other risks.

Affirmed.'