text:
    Emma J. CAGE v. SHAINBERG’S STORES OF LA., etc.
    No. 14608.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.

      Byron Magbee, Baton Rouge, for plaintiff-appellee Emma J. Cage.
    Robert J. Vandaworker, Baton Rouge, for defendant-appellant.
    Before EDWARDS, LEAR and CHIAS-SON, JJ.
   LEAR, Judge.

Plaintiff, Emma J. Cage, brought suit to recover damages for personal injury, which she sustained when she slipped and fell at a department store owned and operated by the defendant, Shainberg’s Stores of Tennessee, Incorporated. Plaintiff alleges that she slipped on a clear, slick substance which was unseen by her until after the accident. Defendant denied fault or negligence and asserted plaintiff’s contributory negligence and assumption of the risk. At the conclusion of a jury trial, a verdict was returned in favor of plaintiff in the amount of $5,000.00. Defendant then appealed. Plaintiff has answered the appeal by requesting that the judgment appealed from be modified to increase the amount of damages from $5,000.00 to $15,000.00.

On appeal, defendant alleges the following errors:

1. The plaintiff failed to prove damages which would justify the verdict of $5,000.00;
2. The court erred in failing to charge the jury on the presumption created by the plaintiff’s failure to call certain witnesses and to produce certain evidence within her control;
3. The court erred in charging the jury that the jurors could, in considering the amount of damages, take into consideration the “decreased purchasing power of the dollar.”

Defendant’s liability and the fact of plaintiff’s injuries have not been placed at issue by defendant on appeal. The only factual question raised by defendant is • whether the evidence supports the amount of the jury’s verdict.

With regard to this issue of quantum, Louisiana Civil Code Article 1934(3) states, in part:

“In the assessment of damages under this rule, as well as in cases of offenses, quasi-offenses and quasi-contracts,-much discretion must be left to the judge or jury ...”

A jury is granted great discretion in fixing an award for general damages which cannot be fixed with any degree of certainty, such as pain and suffering. In such cases, our review must be limited to a determination of whether the jury has abused its discretion, based on the circumstances of the case. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977); Rheams v. McCray, 346 So.2d 834 (La.App. 1st Cir. 1977); Averett v. Alexander, 336 So.2d 227 (La.App. 1st Cir. 1976). And, since the jury does have much discretion in fixing damages, the appropriate procedure for testing whether the jury abused its discretion is to determine whether the award can be supported under the interpretation of the evidence most favorable to the plaintiff which reasonably could have been made by the jury. Schexnayder et ux. v. Carpenter et al., 346 So.2d 196 (La.1977); Bevil v. Heath Timber Company, Inc., 347 So.2d 889 (La. App. 3rd Cir. 1977).

Plaintiff testified that this accident occurred when she slipped on a clear liquid substance and fell to the floor striking her head and shoulders against the shelves and landed on her back. This accident occurred approximately ten days after she had undergone hemorrhoid surgery. Following her fall, plaintiff was examined by Dr. Roy Regan, who stated that plaintiff had minor contusions on the left hand and hip. X-rays were taken which revealed no fractures or other abnormalities, and Dr. Regan gave plaintiff a prescription to relieve her pain. Later that day her pain became more severe and she returned to Dr. Regan on the following day, complaining of arm and leg pain and headaches. She returned to Dr. Regan again four days later continuing to complain of headaches and pain in her mid and upper back, left upper arm and hip. At this time Dr. Regan noted a “small bluish bruise” below plaintiff’s left knee. At that time Dr. Regan felt that plaintiff had improved sufficiently and he released her. Plaintiff continued to suffer pain and headaches, however, and subsequently consulted Dr. Stephen Wilson, an orthopedic surgeon. She told Dr. Wilson that, while she did not think she was severely injured immediately after the accident, the pain in her neck and upper back had gradually grown worse. Dr. Wilson found muscle and ligament strain to plaintiff’s neck and upper back, and advised her to perform certain exercises and to take a mild pain medication. Plaintiff returned to Dr. Wilson approximately three weeks later, continuing to complain of pain in the mid back area. At that time she was given an injection of cortisone.

Plaintiff was also examined by Dr. James T. Kilroy, an orthopedic surgeon, whose sworn statement was read into the record, without objection. Dr. Kilroy also found plaintiff to have suffered a lumbosacral strain and recommended physical therapy with deep heat, ultra sound and traction for two weeks.

Plaintiff testified that this accident caused her to miss approximately fourteen days of work, and lost wages of approximately $450.00. Mr. David Malcolm Medlin, a C.P.A. and the Assistant Finance Director for the City of Baton Rouge, where plaintiff worked, confirmed plaintiff’s testimony with regard to the amount of time she lost from work. We note that there was some controversy as to when plaintiff was to have returned to work following her hemorrhoid surgery, and whether this accident caused her to actually lose additional time from work. Plaintiff testified at the trial that, while no specific date was set for her return to work after the hemorrhoid surgery, she expected to be back at work within three to four weeks following the surgery. Defendant, however, points out that plaintiff stated in a pretrial deposition that her absence from work due to her surgery was to last approximately six weeks.

The jury’s award was made in a lump sum, with no specific amount set for lost wages. Because of this we are unable to determine whether any award was, in fact, made to plaintiff for lost wages. However, assuming that the general award did include an amount for lost wages, we do not find it unreasonable for the jury to have accepted plaintiff’s testimony at trial and concluded that this accident cost her to miss an additional fourteen days of work.

Our review of this record leads us to conclude that, under an interpretation of the evidence most favorable to the plaintiff which reasonably could have been made by the jury, we find that the jury did not abuse its discretion in awarding plaintiff the lump sum of $5,000.00, which includes her medical expenses, lost wages, inconvenience and pain and suffering.

For the reasons expressed above, we believe that the jury’s award was adequate, and certainly not so low as to constitute an abuse of its much discretion. Thus, we decline to raise the award on appeal.

Defendant next contends that the trial court erred in refusing to charge the jury concerning the presumption created by a party’s failure to call certain witnesses.

Plaintiff testified that she consulted and was treated by a number of doctors following this accident. Included among these doctors were Dr. Jerome Tanner, who had performed plaintiff’s hemorrhoid surgery prior to her accident. She also testified that she was examined by doctors at the emergency room of two local hospitals.

Plaintiff’s petition for damages makes no mention of nor claims any damages for the aggravation of a pre-existing condition (her previous hemorrhoid surgery). The medical testimony at trial and the majority of plaintiff’s testimony concerned her injuries in the upper back, neck and shoulder areas. While plaintiff did testify that this accident caused her a somewhat prolonged recuperation from her hemorrhoid surgery, we note that these were only incidental statements made in connection with plaintiff’s main demand for damages caused directly by this accident. Therefore, with regard to Dr. Tanner, we do not believe that the trial court erred in refusing to instruct the jury that plaintiff’s failure to call him should create an adverse presumption.

With regard to the other doctors who examined plaintiff, including the doctors at the emergency room of the two local hospitals, the record indicates that their testimony would have been merely cumulative. The three doctors whose testimony was offered by plaintiff are all treating physicians and were the doctors who rendered the majority of the treatment received by plaintiff. For this reason we do not believe that, as to these doctors not called by plaintiff, the trial court erred in refusing to give the adverse presumption charge requested by defendant.

Further, a litigant is required only to prove his case by a preponderance of the evidence and, if as here they do so, no unfavorable inference attaches to their failure to call additional witnesses. Penouilh v. Crain, 396 So.2d 947 (La.App. 1st Cir. 1980); Delafosse v. Industrial Painters, Inc., 199 So.2d 559 (La.App. 3rd Cir. 1967). And, even when an unfavorable inference attaches from a failure to call a witness, by itself it will not outweigh sworn evidence accepted as credible by the trier of fact. Delafosse v. Industrial Painters, Inc., supra.

Defendant next argues that the trial court erred in charging the jury that they could take into consideration the decreased purchasing power of the dollar in considering the amount of damages to be awarded. We disagree, however, and find that our law recognizes that the decreased purchasing power of the dollar, due to inflation, is a proper element for consideration in determining the award in a tort action. Zagar v. Romero, 134 So.2d 696 (La.App. 3rd Cir. 1961); Murphy v. Georgia Pacific Corporation, 628 F.2d 862 (5th Cir. 1980). We find therefore, that the trial court was correct in allowing the jury to consider the decreasing purchasing power of the dollar due to inflation.

For the foregoing reasons, the judgment of the trial court is affirmed. All costs, both at trial and on appeal, are to be paid by defendant-appellant.

AFFIRMED.


source: Caselaw Access Project

author: LEAR, Judge.

license: Public Domain

text:
    OIL AND MARINE CORPORATION OF LOUISIANA, INC. v. Fred A. BLANCHE, III, et al.
    No. 14611.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    John E. Seago, Baton Rouge, for plaintiff-appellant Oil and Marine Corp. of La., Inc.
    Sumpter B. Davis, III, Baton Rouge, and Patrick V. Strong, San Antonio, Tex., for defendants-appellees Fred A. Blanche, III, and A. L. Hernden.
    Before EDWARDS, LEAR and CHIAS-SON, JJ.
   LEAR, Judge.

Plaintiff filed suit alleging that defendants recklessly and intentionally abused the legal process by the filing of, and in connection with, a previous suit filed by these defendants against this plaintiff. Defendants herein thereafter filed an exception of prematurity, claiming that this suit is premature until the first suit is disposed of. Defendants’ exception of prematurity was sustained, and plaintiff’s suit was dismissed. In its appeal, plaintiff seeks review of that judgment.

The petition in this instant case states that the prior suit record was attached to it and by reference makes that prior suit record, including all discovery, motions and pleadings, a part of this instant suit. A “notice of lis pendens” filed in connection with the previous suit, and recorded at COB2798, folio 462 and MOB3163, folio 531, is also referred to in the petition in this instant suit. Further, in their briefs, the parties refer to the trial court’s oral reasons for judgment and an amendment of the above mentioned “notice of lis pendens”.

In reviewing this record we find that neither the record of the previous suit nor the “notice of lis pendens”, or its amendment, are included in this record. We also note that the trial court’s oral reasons for judgment have not been transcribed.

In order to properly consider this appeal, it is necessary that the above referred to documents, including a transcript of the trial court’s oral reasons, be included in this record for our review. Therefore, this case, and specifically the record herein, is hereby remanded to the Clerk of Court of the Nineteenth Judicial District Court, Parish of East Baton Rouge, Louisiana, for completion in accordance with the above.

The cost of this appeal will be determined upon a final disposition.

REMANDED.


author: CHIASSON, Judge.

text:
    Coley DAVIDSON v. Robert G. PEDEN.
    No. 14618.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.

      Dorothy Thomas, Boris F. Navratil, Baton Rouge, for plaintiff-appellant Coley Davidson.
    Donald S. Zuber, Baton Rouge, for defendant-appellee Robert G. Peden.
    Before LEAR, CARTER and CHIAS-SON, JJ.
   CHIASSON, Judge.

Coley Davidson, plaintiff-appellant, appeals a jury verdict in favor of the defendants-appellees, Dr. Robert G. Peden and his insurer, St. Paul Fire and Marine Insurance Company.

Mr. Davidson brought the present medical malpractice suit against Dr. Peden and his insurer seeking $275,000 in damages. Mr. Davidson alleges that surgery known as an “endo-lymphatic shunt” performed on him by Dr. Peden was not the proper medical treatment for the condition for which the plaintiff was suffering, was not needed and should not have been performed. Additionally, Mr. Davidson alleges that Dr. Pe-den failed to inform him such surgery may result in total and permanent hearing loss, that he did in fact lose the hearing in his right ear and that, but for the inadequate advice and information furnished by Dr. Peden, he would not have consented to the surgery, but would have chosen other methods of treatment.

Mr. Davidson had been experiencing bouts of vertigo (dizziness) since before 1973. At times, the episodes were so severe, he would fall to the floor with vomiting and nausea. Mr. Davidson testified that up until the time of surgery, his vertigo had become progressively worse during the years and, at the time of the surgical procedure performed by Dr. Peden, he was totally incapacitated in that he had to hire someone to drive him around. On some days Mr. Davidson could not go to work. Without question, the vertigo had adversely affected his job performance as an insurance salesman who had to drive his car.

Dr. E. J. Herpich, an ear, nose and throat specialist in Baton Rouge, testified that Mr. Davidson came to him on December 4, 1973, complaining of fullness in the ears and dizziness for the past two to three years. Dr. Herpich examined Mr. Davidson and found no evidence of apparent disease in the middle ear.

Two days later, Dr. Herpich performed an audiogram on Mr. Davidson to make sure that he did not have any disease and this audiogram was noted as “normal”. Mr. Davidson did not see Dr. Herpich again until March 4th and 10th in 1975. At that time, he was complaining of hoarseness and on March 15th, Dr. Herpich performed a direct laryngoscopy in which he removed a benign tumor from Mr. Davidson’s right vocal cord. The next two visits to Dr. Herpich involved upper respiratory congestion and coughing. Dr. Herpich next saw Mr. Davidson on July 30, 1975 and on that visit, Mr. Davidson was complaining of itching and soreness in his right ear, which Dr. Herpich diagnosed as otitis externa, On August 26, 1975, Mr. Davidson again complained to Dr. Herpich of severe dizziness. Dr. Herpich performed an audiogram at this time which indicated a fifty decibel loss in the 6000 frequency or a perceptive loss of hearing.

Fullness and discomfort in his right ear precipitated Mr. Davidson’s December 23rd, 1975 visit to Dr. Herpich. At this time, Dr. Herpich diagnosed Mr. Davidson’s condition as middle ear disease with fluid behind the eardrum. Also, there was an indication of dysfunction with his hearing. The next day Dr. Herpich performed a tympanotomy which was checked on January 9, 1976 as having perfectly healed. On January 23, 1976, Mr. Davidson complained of chest discomfort to Dr. Herpich who told him to go back and see his heart doctor. Mr. Davidson testified that Dr. Herpich thought that his dizziness was probably being caused by a vascular problem. At this visit however, Dr. Herpich conducted another audiogram and noted the perceptive loss of hearing as he had before.

In February of 1976, Mr. Davidson was referred to Dr. Peden for evaluation of vertigo by Dr. Virginia Thurmon, who had been treating Mr. Davidson for his heart problems. Dr. Peden testified that Mr. Davidson complained of vertigo, fullness and pressure in the right ear and stated that he had been experiencing severe vertigo and tinnitus since 1973.

Dr. Peden performed three tests on Mr. Davidson on February 6, 1976. An audio-gram was conducted by Dr. Peden’s certified audiologist and the audiogram indicated that Mr. Davidson had a traumatic type loss and that there was an eighty-four percent discrimination in the right ear. The left ear was normal. There was a very small five or ten decibel hearing loss in the 250 frequency and he returned to normal at the 500 frequency and then started dipping down again as he progressed in the higher frequencies.

The tympanogram indicated decay in the right ear and the electronystagmo-gram (hereinafter referred to as “ENG”) showed that Mr. Davidson’s right ear was, for all practical purposes, nonfunctional or suppressed as a result of his disease process. There was a definite lack of function of the electrical system of the right ear.

Dr. Peden testified that he suspected a tumor on the eighth nerve and he thereafter had Mr. Davidson admitted to Our Lady of the Lake Hospital on February 8th for tests to be run by Dr. James A. Poche, Jr., a neurosurgeon.

Dr. Poche was qualified as an expert in this case and he testified that Mr. Davidson was confined with dizziness and questionable X-ray changes. These changes concerned the eighth nerve and Dr. Poche was asked to find out whether the bones had eroded or whether the opening had been enlarged due to a tumor or a mass. Dr. Poche performed a myelogram which indicated that there was no evidence of any tumor. He then concluded that Mr. Davidson was suffering from eighth nerve dysfunction.

Dr. Peden thereafter performed a second ENG on March 26, 1976, and concluded that Mr. Davidson was suffering from a disorder of the inner ear known as “Meniere’s Disease or Syndrome”. This is the point in the record where the testimony is split.

Dr. Peden testified that after the second ENG, he discussed the possibility of surgery with Mr. Davidson and his wife. Dr. Peden also testified that the possible complications of surgery were fully discussed and there was a detailed discussion concerning finances.

Mr. Davidson testified that Dr. Peden did not discuss any bad results of the endo-lymphatic shunt procedure with him and that he would not have consented to the surgery had he known of the risk of losing his hearing. He stated that he would have gotten another opinion.

Nevertheless, it is agreed that Dr. Peden told Mr. Davidson that he would not operate without consultation on the ENGs he had performed and would get in touch with him. Dr. Peden did call Mr. Davidson a few days later and informed him that surgery would be done. Mr. Davidson was admitted to Our Lady of the Lake Hospital on April 6, 1976; he signed a consent form to be operated on and the endo-lymphatic shunt surgery was performed on the next day. Mr. Davidson lost the hearing in his right ear and thereafter brought the present suit.

The jury found in favor of Dr. Peden and his insurer and Mr. Davidson perfected the instant appeal. On appeal, Mr. Davidson alleges that the jury’s determination that Dr. Peden was not negligent in the diagnosis and treatment of his condition was contrary to the law and the evidence and that the trial court erred in failing to instruct the jury on one of the plaintiff’s requested charges.

It is certainly clear from the record, and both sides agree, that no one knows the cause, the proper treatment, or the etiology of Meniere’s Disease.

Dr. Herpich testified that Meniere’s Disease is characterized by tinnitus, dizziness and a loss of hearing. Dr. Miles S. Lewis, an expert in otology who has never performed the “endo-lymphatic shunt” surgery and believes in the medical approach to treatment, stated that there must be a hearing distortion or a fluctuating hearing loss to diagnose Meniere’s Disease. On the other hand, Dr. Lewis also recognizes that there are variations of Meniere’s Disease, one of which is characterized as not including a fluctuating hearing loss at all. Dr. Thomas A. Graves, an expert in neurotolo-gy, stated that you can have any one of the symptoms and be correctly diagnosed as Meniere’s Disease.

All of the experts who testified agree with Dr. Peden to the effect that the purpose of “endo-lymphatic shunt” surgery is to eradicate the vertigo and to preserve the hearing. Mr. Davidson testified that since his surgery, the vertigo from which he was suffering has improved, if not cleared up. Dr. Graves testified that, although with the endo-lymphatic shunt procedure, there is at least a chance that the patient will be able to retain his/her hearing, he still prefers the destructive labyrinthotomy procedure which completely eradicates the possibility of hearing.

Dr. Graves testified that the shunt procedure is standard therapy for recurrent vertigo and is the proper medical procedure when the vertigo is intractable, the patient is not responding to medication and the patient is incapacitated.

Dr. Peden (when questioned with regard to the medical approach) testified that he would treat a patient medically if the patient was functional. In this instance, Dr. Peden stated that he was faced with an individual who had incapacitating vertigo, was not responding to medical treatment, was not functional and who pleaded with him to do something to help him.

The conflict existing in the fields of otol-ogy and neurotology with regard to Meni-ere’s Disease was extensively argued by experts on both sides and was submitted to the jury for a determination based upon those facts presented.

It is the duty of the jury to weigh and ascertain the credibility of witnesses and to render a verdict. Even though expert testimony differs in several respects, it is largely a matter of fact for the trier of fact to determine the most credible and realistic evidence and a finding in this regard and in regards to whether appellant was informed of the potential risks and dangers of the operation will not be overturned unless it is manifestly erroneous or clearly wrong. Harris v. State, Through Huey P. Long Hospital, 371 So.2d 1221 (La. App. 3rd Cir. 1979); Christy v. City of Baton Rouge, 282 So.2d 724 (La.App. 1st Cir. 1973); Thibodeaux v. State, Etc., 371 So.2d 1227 (La.App. 3rd Cir. 1979); Dupuy v. Tilley, 380 So.2d 634 (La.App. 1st Cir. 1979); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

We conclude that there was sufficient credible evidence before the jury to furnish reasonable factual bases for its findings in favor of Dr. Peden and we, therefore, affirm the jury’s findings. Harris, supra; Christy, supra; Arceneaux, supra; and Dupuy, supra.

Counsel for Mr. Davidson urges that the trial court erred in failing to give the following charge to the jury:

“You are instructed that for the consent of the patient to an operation to be binding upon him the patient must be fully informed as to the nature of the ailment, the nature of the operation, and the risks, if any, involved in undergoing the operation.
“You are instructed that any operation on a patient’s body is considered by law as a battery unless it is authorized. If a physician operates in any manner on a patient without consent, he is guilty of a battery, and is liable for all injuries resulting therefrom, even though skill was used in the operation. If you find from the evidence that the plaintiff instructed the defendant to perform a certain operation without plaintiff’s full and informed permission, then the defendant is guilty of a battery and is liable to plaintiff for all damages resulting therefrom.”

Although the requested jury charge was received too late, the record shows that the trial judge considered it before giving the jury its instructions. The court concluded that the said charge was not a full, complete and correct statement of the law insofar as it applies to this case and is not applicable to these particular facts. Additionally, the trial court found that such a charge was too detailed and could be construed as a comment on the evidence. Being so specific could possibly have the effect of directing the jury as to its verdict and such was not the function of the court.

We agree with the trial judge and his instructions as given. It is well-established that although the trial judge is not required to give the precise instructions that are submitted, he is required to give instructions which properly reflect the law applicable in light of the pleadings and facts of the particular case. Beck v. Lovell, 361 So.2d 245 (La.App. 1st Cir. 1978).

Adequate instructions are those instructions which fairly and reasonably point up the issues presented by the pleadings and evidence and which provide correct principles of law for the jury’s application thereto. Hanks v. Drs. Ranson, Swan & Burch, Ltd., 359 So.2d 1089 (La.App. 3rd Cir. 1978); Bienvenu v. Angelle, 254 La. 182, 223 So.2d 140 (1969). After carefully reviewing the trial judge’s instructions and the requested jury instruction in light of the facts and pleadings of this case, we find the instructions as given by the trial judge to be adequate and, therefore, this assignment of error lacks merit. Hanks, supra; Bienvenu, supra.

The Coppage v. Gamble, 324 So.2d 21 (La.App. 2nd Cir. 1975) case, on which the plaintiff relies, as pointed out by the trial judge, speaks to the consent which is necessary for the performance of operations different in nature from that for which a consent was given. In the case at bar, Mr. Davidson consented to the endo-lymphatic shunt surgery and that is the surgery which was performed. This was also the thrust of the Bryant v. St. Paul Fire and Marine Insurance Co., 272 So.2d 448 (La.App. 2nd Cir. 1973) case in which the court held that the plaintiff-patient’s consent to a specific operation included her consent to perform whatever was necessary to remove the potentially cancerous tissue.

Finally, the case of Lombardo v. Argonaut Insurance Co., 354 So.2d 731 (La.App. 4th Cir. 1978) has nothing to do with the instant case. In Lombardo, supra, the question presented was, assuming the defendant-physician did not have informed consent or any consent of the plaintiff for the performance of a surgical procedure, what is the applicable prescriptive period to such a cause of action, i.e., one year or ten years? As the trial judge in our case pointed out, Lombardo dealt with prescription and has nothing to do with the issue presented by this particular case.

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

AFFIRMED.

      . Endo-lymphatic shunt surgery is a procedure in which the physician microscopically inserts a very small plastic tube into the endolymphatic sac located in the internal auditory canal or mastoid cavity.

      . Dr. E. J. Herpich’s testimony was introduced by reading his deposition into the record since, due to illness, he was unable to testify.

      . A method of testing an individual’s hearing is a test known as an audiogram. This is a process whereby various frequencies of sound at various levels of intensity are introduced to the patient via earphones.

      . Otitis externa is an inflammation of the ear canal.

      . Perceptive loss of hearing deals with the ability of the nerve to carry that sound from the inner ear to the brain. It is also known as nerve deafness.

      . Tympanotomy is a procedure in which the eardrum is deadened and opened in order for the fluid behind the eardrum to be released.

      . Mr. Davidson has a history of heart problems which includes a coronary bypass.

      . Tinnitus is a ringing in the ears.

      . One hundred words. are introduced to the patient who is to repeat the words back. Mr. Davidson was able to repeat 100% of the words introduced into his left ear and was only able to repeat 84% of the words introduced into the right ear.

      . Tympanogram is a test done to measure the eardrum compliance or movement and the bones involved in the hearing process.

      . An electronystagmogram is a test whereby a balloon is placed in the patient’s ear and various temperatures of water are circulated therein. The purpose of the ENG is to measure the electrical output of the ear by electrically measuring eye movement caused by the circulating water and recorded by electrodes which are taped around the patient’s eyes.

      . The eighth nerve is the nerve which controls hearing.

      . The myelogram performed on Mr. Davidson was a procedure in which a dye was introduced and maneuvered into the area of the eighth nerve and X-rays were taken to determine if a tumor existed.

      . Mr. Davidson has a history of being on numerous medications for a number of years. In fact, on Mr. Davidson’s history, Dr. Peden noted that medical therapy had not proven successful.


author: COLE, Judge.

text:
    Clarence R. CLARK, et al. v. DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT and Department of State Civil Service.
    No. 14626.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.

      Daniel E. Broussard, Jr., Broussard, Bolton & Halcomb, Alexandria, for appellants.
    Anthony J. Bonfanti, Executive Asst. Gen. Counsel, Dept, of Transp. and Development, Baton Rouge, for appellee Dept, of Transp. and Development.
    Laura Denson Holmes, Civil Service Legal Counsel, Dept, of State Civil Service, Baton Rouge, for appellee Dept, of State Civil Service and George Hamner, Director, Dept, of State Civil Service.
    Before COVINGTON, COLE and WATKINS, JJ.
   COLE, Judge.

The issue here is whether or not plaintiffs have stated legal grounds for an appeal of a statewide pay plan implemented by the Department of Civil Service. Because we agree with the State Civil Service Commission (herein referred to as the Commission), they have no right to appeal, we affirm.

On May 1, 1979, a statewide pay plan was implemented whereby 390 classes of civil servant employees were given pay increases and 2052 classes were left at status quo. Plaintiffs are 168 employees of the Louisiana Department of Transportation and Development (DOTD) who did not receive pay increases. Various other classes within the DOTD received an increase in salary. On June 25, 1980, plaintiffs’ counsel wrote an appeal letter to Mr. George Hamner, Director of the Department of Civil Service and alleged as follows:

“It is our contention that the exclusion of our clients from these special pay adjustments is inequitable and discriminatory.
“Specifically we contend that the failure to include our clients in the special pay adjustments of May 1, 1979 was without substantial reason or foundation. Certain D.O.T.D. employees holding identical and/or similar positions and classifications to our clients were selected and given pay increases on May 1, 1979 while our clients were not.”

The letter stated further the exclusion of the plaintiffs from the pay increase had been “arbitrary and discriminatory and denies our clients the equal protection of the law as guaranteed to them by Article I, Section 3 of the Louisiana Constitution and the Fourteenth Amendment to the United States Constitution.” The letter requested the exclusion from the pay adjustment be corrected retroactive to May 1, 1979, and that plaintiffs be given any pay increase implemented by the plan in the same amount and percentages as the other DOTD employees had received. The letter stated the appeal was based on Civil Service Rule 13.10(e) and (i).

The Department of Civil Service and DOTD each filed a request for summary disposition and a hearing was held. The Commission denied plaintiffs’ appeal because plaintiffs had failed to allege legal grounds for an appeal and because the Commission was without jurisdiction to hear the appeal. Plaintiffs then appealed to this court. We agree there were no legal grounds for the appeal therefore we need not reach the jurisdictional issue.

One basis for our conclusion that plaintiffs have no legal grounds for the appeal is Rule 13.34 which reads as follows:

“No appeal to the Commission shall lie from the adoption by the Commission, after public hearing, of a Classification Plan, a Pay Plan, or of any Rule, or of any Amendment to said Plans or Rule.”

It was admitted by plaintiffs’ attorney at the hearing on the motion for summary disposition a public hearing was held on the proposed pay plan. He argued simply the employees are often not really aware of the effect of the plan until after it has been implemented. While we are sympathetic to the employees’ interests, we find the rule a valid one and conclude it bars an appeal in this matter.

Plaintiffs argue in their brief they are ready to produce evidence showing the notice given for the hearing was inadequate. This issue was not raised in the letter of appeal, nor was it argued at the hearing. Even if we were to remand to receive this evidence and plaintiffs proved the notice was inadequate, plaintiffs are still barred from appealing because the two subsections of Rule 13.10 upon which they base their right to appeal are not applicable to the facts of this case.

Rule 13.10 provides several specific circumstances in which an appeal will lie. Subsection (e) deals with the pay plan as an apparent exception to the general bar set forth in Rule 13.34. Rule 13.10(e) reads as follows:

“An appeal may be made to this Commission by
(e) Any person in the Classified Service who alleges that he has been discriminated against by the application of the Pay Plan or the application of any change thereof.”

In its written opinion the Commission cited the Civil Service opinion in the appeal of L. D. Addison, (Docket No. 2149, dated January 22, 1980), where the Commission held Rule 13.10(e) granted a right to an appeal only in situations where the employee alleged other employees in his same class were being paid more than he. In Addison, the employee was arguing his class (E.E. O.C. Ill) should earn as much as or more than a similar class (Personnel Technician III). Citing Hollingsworth v. State Through Dept. of Public Safety, 354 So.2d 1058 (La.App. 1st Cir. 1977), writ refused 1978, the Commission concluded Rule 13.-10(e) was inapplicable and plaintiff Addison had stated no grounds for his appeal.

After reading the transcript of the hearing we agree with the Commission’s conclusion the complaint relates to pay differential between similar classes rather than to pay differential between members of the same class. Plaintiffs’ attorney, Mr. Daniel Broussard, was questioned as to the exact nature of the complaint. He stated in most instances the grievance was that classes similar to plaintiffs’ own had been included in the pay raise while plaintiffs’ classes had not. In one instance, discussed below, one class of plaintiffs (labor utility) felt employees doing identical work had been given a different class title (trades helper) and were included in the pay 'raise under the new title. The following is an excerpt from the hearing.

MR. BROUSSARD: “It’s our understanding that the leadermen and the labor utility employees — they have two types of sign crews, district-wide crews and they have state-wide crews. The district-wide crews and the state-wide crews do essentially the same thing, putting up signs and they have essentially the same position. When this pay plan was implemented, the labor utility and leadermen in the state-wide crews got a pay increase. The ones in the district crews didn’t. And they’re doing essentially the identical work. And that’s what we intend to prove. And there was a name change, but the work stays the same, it’s the identical position, and it’s essentially the same thing.”
COMMISSION MEMBER: “What do you mean the name changed?”
MR. BROUSSARD: “Well, they changed labor utility to trades helper.”
COMMISSION MEMBER: “But then it becomes a different job. The labor utility is no longer a labor utility.”
MR. BROUSSARD: “Right. But it’s like taking — you have two sign crews and they do exactly the same work. And you’ve got labor utility in this sign crew and you’ve got labor utility in this sign crew. You change this guy to trades helper, but his job stays the same as the — they’re both identical jobs and they’re both doing the same thing. They just changed the — ”
COMMISSION MEMBER: “ — a different title.”
MR. BROUSSARD: “Different title. I’m saying its the identical position. It’s similar work. Everything’s the same except the name change and the different pay.”

This testimony indicates the gist of plaintiffs’ argument is that their classifications should have been included in the pay plan because other similar classifications were included. We agree with the Commission opinion that rather than alleging discrimination in the application of the pay plan they are “questioning the legitimate decisions made by the Civil Service Commission in the inclusion or exclusion of certain classifications to receive a pay increase on May 1, 1979.” Rule 13.10(e) is not applicable as a basis for this appeal.

In Hollingsworth, supra, an employee classified as a Command Inspector appealed under Rule 13.10(e), complaining two other Command Inspectors (each of whom was junior to him in service) were being paid more than plaintiff as a result of a 1975 pay plan. The court concluded there had been no discrimination and the increase in salary had come about because of various step increases the two others had received while in lower classifications. The court remarked:

“However, such a variance comes about solely from the mechanics of the system, not from any discriminatory application or implementation of the pay plan. An imbalance can occur in any department, and pay discrepancies to a slight extent exist throughout the system. Such discrepancies are caused primarily by the provisions of the Civil Service pay rules and the way the pay plan is structured, and not from any internal administrative adjustments.”

While we can understand the dissatisfaction of the employees who did not benefit from the pay increase, we agree with the Holl- ingsworth court it is not every variance in salary that gives the employee a right to challenge the plan.

Plaintiffs’ other ground upon which their appeal was based is Rule 13.-10(i) which reads:

“An appeal may be made to this Commission by
(i) Any person who alleges that he has been discriminated against by any official action taken by the Director.”

Rule 13.11(d) requires an appellant to include in his written appeal “specific facts supporting the conclusion of discrimination” and these facts must be alleged in detail. The Commission noted, and we agree, the letter of appeal contained only a conclusion of discrimination and did not allege any specific facts to support the conclusion. There must be some specific facts showing the appellant was discriminated against due to his race, religion, sex, or other nonmerit factor. Further, the Commission noted there were no facts alleged to indicate the Director had violated any rules in taking action under the plan. He is required to implement the plan, as approved by the governor, which he did in this case.

In conclusion, we agree with the Commission Rule 13.34 bars plaintiffs’ appeal. Even if plaintiffs showed the notice for the hearing was inadequate, their appeal must fail because they have based their grounds on Rule 13.10(e) and (i), neither of which are applicable to their ease. Their general complaint that their exclusion from the pay increase violated their constitutional rights under the state and federal constitutions, even assuming it to be a valid complaint, cannot be heard by the Civil Service Commission since it is not the proper forum in which to test the constitutionality of its own rules and pay schedules. See La.Const. art. X, § 8 and § 12. Jurisdiction to pass on the constitutionality of its own rules would be inconsistent with the Commission’s rule-making function. The doors of the state and federal court are always open to plaintiffs who complain the state is depriving them of their constitutional rights.

For these reasons, the summary disposition of the Civil Service Commission is affirmed. Plaintiffs-appellants are to pay costs.

AFFIRMED.

      . The plaintiffs hold positions in clerical, labor- • er utility, leaderman, watchman, park attendant, equipment specialist I, radio operator II, bridge tender and safety inspector classifications.

      . All subsequent citations to Rules are references to the Civil Service Rules.

      . The court in Hollingsworth, supra, apparently recognized plaintiffs right to an appeal under Rule 13.10(e) but after considering the merits concluded he was not entitled to the relief sought.

      . Rule 13:34 was not at issue in Thoreson v. State Dept. of Civil Service, 396 So.2d 367 (La.App. 1st Cir. 1981), relied upon by plaintiffs. Unlike Thoreson, the Commission has now exercised its discretion not to hear the appeal by its implementation of Rule 13:34.


author: COVINGTON, Judge.

text:
    Harold LEONARD v. DAIGLE PONTIAC-BUICK-GMC, INC., et al.
    No. 14629.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.

      Larry P. Boudreaux, Thibodaux, for plaintiff, appellant and appellee.
    Pegram J. Mire, Jr., Gonzales, for defendant, appellant and appellee.
    Henry D. Salassi, Jr., Baton Rouge, for third party.
    Before COVINGTON, COLE and WATKINS, JJ.
   COVINGTON, Judge.

Plaintiff, Harold Leonard, filed this red-hibitory action, seeking to rescind the sale of a 1978 Pontiac 2-door Grand Prix automobile or, alternatively, to obtain a reduction in the sale price. Made defendants were Daigle Pontiac-Buick-GMC, Inc. (Dai-gle), the dealer from whom plaintiff bought the automobile, and General Motors Corporation (GMC), the manufacturer of the vehicle. Daigle answered, denying liability and reconvening for a credit for plaintiff’s use of the automobile. Daigle also third partied GMC, seeking indemnification for any liability imposed upon it. GMC answered plaintiff’s petition and Daigle’s third party demand, denying the existence of a defect attributable to design or manufacture of the unit, and, alternatively, asserting that the defect was easily correctable.

Trial was held on July 15, 1980. At the close of trial, the court took the case under advisement. Subsequently, the court rendered judgment in favor of plaintiff and against Daigle, reducing the purchase price of the automobile $1,500.00 and awarding plaintiff $500.00 in attorney’s fees. The court also dismissed plaintiff’s suit and Dai-gle’s third party demand against GMC. From the judgment of the trial court, Dai-gle and plaintiff each perfected devolutive appeals to this court. We affirm.

This suit arises from plaintiff’s purchase of an allegedly defective automobile from Daigle. Plaintiff bought the vehicle on February 28, 1978, for a cash price of $9,881.72. Plaintiff traded in a 1973 Buick Century automobile, for which he was given a credit of $1,500.00, with the balance of $8,381.72 being financed.

Approximately three weeks after the purchase, plaintiff was driving the car when it began to rain. At that time, plaintiff noticed a leak in the T-top of his car. Plaintiff testified that he then brought his car to Daigle to be repaired. During the next several months, plaintiff brought the car to Daigle on numerous occasions for repair of the T-top. When Daigle failed to fix it to his satisfaction, he brought the instant suit.

Plaintiff described the water leak to be a “dripping.” The water would leak in the front part of the passenger section of the automobile. Plaintiff testified that the leak was still present at the time of trial. There was also testimony which indicated that the T-top also had air leaks, which caused a noise.

On several occasions when plaintiff brought the car in for repair, he was required to leave it overnight. Plaintiff testified that, on one occasion, he had to leave the car with Daigle for about two weeks.

Roger Laurent, Daigle’s general manager, who was also in charge of the service department, testified that plaintiff brought the car in for repair of the T-top on four or five occasions. He stated that the top was not defective. He testified that on these occasions, Daigle applied a special adhesive and changed the rubber gaskets, in accordance with the manufacturer’s repair bulletins, in an attempt to repair the leaks. Laurent testified that on each occasion that Daigle worked on the car, he considered the car to have been fixed when it was turned over to Leonard. He indicated that the leaks were easily reparable.

Frank Camperlingo, a dealer service consultant for GMC who qualified as an expert in automobile mechanics and, more specifically, T-tops, testified that, in March, 1979, Daigle requested that he come to the dealership and lend his expertise in the repair of plaintiff’s automobile. Camperlingo testified that he could detect nothing wrong with the T-top, except that the weatherstrips had been overtightened. He stated that the top did not leak when subjected to a water test. He expressed the opinion that replacement of the weatherstrips would correct the problem. He further testified that there was nothing defective in the design or manufacture of the T-top and that the repairs were of a simple nature. Camperlingo suggested that the defects in the T-top was caused by Daigle’s adjustments.

On appeal, Daigle raises two issues, to-wit: (1) was Daigle’s third party demand against GMC properly dismissed; and (2) was the $1,500.00 reduction in the sale price excessive? Plaintiff questions the remedy of reduction of price rather than rescission and the adequacy of the reduction amount.

In dismissing the main and third party demands against GMC, the trial court made the following finding in its reasons for judgment:

“The leaks complained of, as testified to by Daigle’s General Manager, were not attributable to the manufacture or design of the car but were such that could have been corrected by the dealer.”

On appeal, Daigle contends that the above finding of the trial court does not justify the dismissal of its demand against GMC. It asserts that whether or not the defect was in the “manufacture or design” of the vehicle is immaterial to a determination of the manufacturer’s liability, citing Rey v. Cuccia, 298 So.2d 840 (La.1974), which, inter alia, embodies the general rule that a manufacturer is presumed to know of any defects in its product. Daigle also relies on LSA-C.C. art. 2531, which reads in pertinent part:

“In any case in which the seller is held liable because of redhibitory defects in the thing sold, the seller shall have a corresponding and similar right of action against the manufacturer of the thing for any losses sustained by the seller, . . . . ”

The jurisprudence of this state recognizes two defenses in redhibitory actions wherein the seller of a new automobile seeks indemnity from the manufacturer. First, the manufacturer may defeat the dealer’s recovery if it proves that the redhi-bitory defects did not exist at the time the automobile was acquired by the dealer, or were not attributable to the manufacturer. Bagwell v. Coleman Oldsmobile, Inc., 391 So.2d 1260 (La.App. 1 Cir. 1980); Daigle v. Robinson Brothers, Inc., 368 So.2d 186 (La.App. 1 Cir. 1979). Second, the dealer must be denied indemnification if the manufacturer proves that the defect was easily remediable. Lehn v. Clearview Dodge Sales, Inc., 400 So.2d 317 (La.App. 4 Cir. 1981).

The only evidence, in the instant case, which would tend to indicate that the defect was not present at the time of the acquisition of the automobile by Daigle from GMC is the testimony of Camperlingo that the T-top’s weatherstrips had been overtightened. However, since plaintiff noticed the defect shortly after the purchase and Camperlingo did not inspect the automobile until more than one year after the purchase, the record does not support a conclusion that the redhibitory defect was not present when the dealer acquired the car from GMC.

The trial court based its decision, denying Daigle indemnity, on the ground that the defect was easily remediable. Both Cam-perlingo and Laurent testified that the leaks in the T-top could easily be repaired. Camperlingo testified that it was only necessary to replace the gaskets and weatherstripping to make the required repairs. Opposed to the testimony that defects were easily remediable is Daigle’s attempts to repair the automobile on at least six occasions. We believe a review of the entire record reveals that there is a reasonable basis for the trial court’s conclusion and we do not find that it is clearly wrong. See Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Under Article 2520 of the Louisiana Civil Code, a buyer is entitled to rescission if the defects in the thing bought render it absolutely useless or so inconvenient or imperfect that an informed buyer would not have bought it. Peterson v. Coleman Oldsmobile, Incorporated, 393 So.2d 372 (La.App. 1 Cir. 1980). The defects in the automobile in the instant case can not be considered of the magnitude necessary to support rescission of the sale. Hence, the trial court was correct in allowing plaintiff a reduction, rather than a rescission. See Cassey v. Arnaudville Industries, Inc., 393 So.2d 215 (La.App. 1 Cir. 1980).

In the present case, the trial court granted Leonard a $1,500.00 reduction in the sale price of his automobile. On appeal, Daigle contends that the trial court’s award was excessive and should be reduced.

The proper measure of damages in an action to reduce the sale price is the difference between the actual sale price and the price a reasonable buyer and seller would have agreed upon, if they had both known of the defect. Couch v. Frichter’s Sportsmen’s Haven, Inc., 365 So.2d 901 (La.App. 4 Cir. 1978), writ denied, 367 So.2d 1185 (La.1979); Wade v. McInnis-Peterson Chevrolet, Inc., 307 So.2d 798 (La.App. 1 Cir. 1975). The trial court has discretion in assessing the amount of a reduction, and its award should not be modified in the absence of clear abuse. Lemoine v. Hebert, 395 So.2d 353 (La.App. 1 Cir. 1980).

Further, Daigle contends that the trial court should have limited the reduction to the amount of repairs. We disagree. The courts have consistently recognized a plaintiff’s right to be compensated for uncured defects, curtailment of use and the considerable inconvenience caused by the defects, as well as the expenses of the repairs. Menville v. Stephens Chevrolet, Inc., 300 So.2d 858, 861 (La.App. 4 Cir. 1974), writ denied, 303 So.2d 186 (La.1974). On this issue, the Court in Menville stated:

“When a judge orders reduction of the sale price, one of the principal elements in formulating the award is the cost of repairing the defects which existed at the time of the sale. The cost of repairs, however, is not necessarily the sole measure of the diminution of value resulting from these defects. If the defects are few in number and quickly and simply remedied, the cost of repair may well be the only consideration. But when the defects are numerous and the repairs lengthy and frequent, then a greater reduction is warranted, because a forewarned buyer would not reasonably pay the full price, reduced only by the cost of repairs, if he knew the extensive repairs of the defects would significantly curtail his use and cause him considerable inconvenience and aggravation ... . ”

In the instant case, plaintiff suffered considerable inconvenience and aggravation and sustained a significant curtailment of his use as a result of the leaks in the T-top. The record shows that he had to bring his car in for repairs on at least six occasions, yet there are still uncured defects. Plaintiff testified that on one of these occasions Daigle kept the car for two weeks. Also, plaintiff and witnesses called on his behalf testified as to the inconvenience and discomfort suffered while riding in the car, as a result of the leaks. Under the circumstances, we find that the trial court was within its discretion in awarding a $1,500.00 reduction in the purchase price. We conclude that the court, in making its price reduction, properly considered the numerous problems involved herein, the frequent inconvenience associated with the attempted repairs, the actual damage caused by the water leaks, the cost of repairing the defects, the uncured defects and other items that would go toward diminishing the value of the automobile. See Wade v. McInnis-Peterson Chevrolet, Inc., supra.

For the reasons assigned, the judgment appealed is affirmed at the costs of Daigle Pontiac-Buick-GMC, Inc., defendant-appellant.

AFFIRMED.


author: PONDER, Judge.

text:
    Ronald L. CHAPMAN, Sr. v. OFFICE OF EMPLOYMENT SECURITY, BATON ROUGE, Louisiana, Herbert Sumrall, Administrator.
    No. 14634.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    Ronald L. Chapman, Sr., in pro. per.
    Charles E. Grey, Jr., Asst. Atty. Gen., Baton Rouge, James D. Caldwell, Jones-boro, and Ann Metrailer, Baton Rouge, for defendant-appellee Office of Employment Sec., Baton Rouge, Herbert Sumerall, Administrator.
    Before ELLIS, PONDER and SAVOIE, JJ.
   PONDER, Judge.

Plaintiff appealed from the judgment affirming, on judicial review, the decision of the Board of Review affirming the decision of the Appeals Referee that the agency was correct in disqualifying him for benefits because his discharge by the Department of Correction was for misconduct connected with his employment.

The issue is whether a single instance of abusive language toward a supervisor is misconduct connected with employment.

We affirm.

Appellant was a Prisoner Classification Officer at the Louisiana State Penitentiary at Angola. Among his duties were the investigation of, and the recommendation of the action to be taken on, prisoners’ requests that names be added to the list of permitted visitors. Once, when plaintiff’s report on a request was found to include false information, he was suspended ten working days for “extreme negligence.” Also, plaintiff’s reports had been found to be substandard on a number of occasions. These shortcomings were called to his attention and he was asked to correct them and to improve his reports.

In February, 1980, another report was found to contain errors in form, style and grammar. Mr. Chapman was called into his supervisor’s office. Present were two other supervisors. During the discussion, plaintiff became very excited and began cursing his supervisors in vile and abusive language. He was ordered to leave the office. After the third order and a threat to call the security officers, plaintiff did leave but continued his loud complaints outside.

The findings of fact by the Board of Review shall be conclusive, if supported by sufficient evidence and in the absence of fraud. LSA-R.S. 23:1634.

Appellant does not seriously contest the above facts. At any rate we find that the findings were supported by sufficient fact and there is no fraud.

Appellant’s main contention is that the single instance of abusive language and the refusal to obey an order is insufficient to prove misconduct connected with his employment. LSA-R.S. 23:1601(2).

In Rankin v. Doyal, 223 So.2d 214 (La. App. 2d Cir. 1969), similar actions were found to be sufficient for disqualification. Single incidents have been found to constitute misconduct in Bowman v. State, Office of Employment Sec., 403 So.2d 825 (La.App. 2d Cir. 1981); Wyre v. Lockwood, 402 So.2d 164 (La.App. 1st Cir. 1981); Allen v. Sumrall, 398 So.2d 108 (La.App. 3d Cir. 1981).

For these reasons, the judgment is affirmed at appellant’s costs.

AFFIRMED.


author: SAVOIE, Judge.

text:
    John E. JORDAN v. STATE of Louisiana, Through the DEPARTMENT OF PUBLIC SAFETY.
    No. 14638.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    Joseph P. Brantley, IV, Baton Rouge, for plaintiff-appellee John E. Jordan.
    Michael C. Barron, Dept, of Public Safety, Baton Rouge, for defendant-appellant State of Louisiana Through The Department of Public Safety.
    Before ELLIS, PONDER and SAVOIE, JJ.
   SAVOIE, Judge.

This appeal was fixed on the February 18, 1982 docket and all attorneys of record were notified. At the time scheduled for argument, the appellant was not present nor represented, nor had any brief been filed on behalf of appellant, nor had any motion been filed for continuance.

On authority of Rule VII, Section 5(b), Uniform Rules of the Courts of Appeal, this Court, ex proprio motu, considers this appeal as abandoned; therefore, it is ordered that this appeal be dismissed with prejudice. Appellant is to pay all costs.

APPEAL DISMISSED.


text:
    W. D. KENT, et al. v. Minnie STEWART, et al. Carretha Lee BUTLER, et al. v. SAM MABRY LUMBER COMPANY, et al.
    Nos. 14642, 14643.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.

      L. B. Ponder, Smite, for plaintiffs-appellants in No. 14642 and defendants-appellees in No. 14643.
    John Schmidt, Hammond, for defendants-appellees in No. 14642.
    Ashton L. Sommers, Stephen Peters, Baton Rouge, for plaintiffs-appellants in No. 14643.
    Before ELLIS, PONDER and SAVOIE, JJ.
   PONDER, Judge.

W. D. Kent, Kent Piling Company, Inc., and L. B. Ponder, Jr. appealed from a judgment denying damages for libel, slander, defamation and malicious prosecution and finding that the Lee heirs, plaintiffs in one suit and defendants in the other, were not in contempt of court.

The issues are: the scope of an injunction issued in a prior suit and the dismissal of a suit for damages resulting from libel, slander, defamation and malicious prosecution.

The heirs of Robert Lee filed suit entitled “Carretha Lee Butler, et al v. Sam Mabry Lumber Company, et al,” No. 8764, in which W. D. Kent was named a defendant, alleging that timber on their property had been cut. Plaintiffs dismissed a writ of attachment against Sam Mabry Lumber Company and a writ of garnishment issued to Crown Zellerbach. The lawsuit itself was not dismissed.

After the dismissal of the writs, W. D. Kent answered the suit and reconvened for damages for libel, slander and malicious litigation. He also filed a second suit entitled “W. D. Kent, et al v. Minnie Stewart, et al,” No. 5491, in which he alleged that the heirs of Robert Lee acted in contempt of a permanent injunction issued in a prior suit in 1971. The two suits were consolidated.

Appellants allege that the Lee heirs violated the permanent injunction by bringing the action, by hiring a man to mark and sell trees from Kent’s property, by threatening one of Kent’s agents with a gun and by generally harassing them.

The trial court, in written reasons, held that the injunction did not prohibit the filing of a lawsuit; that appellants did not carry their burden in proving any violation of the injunction, contempt of court or malicious harassment; and that the reconven-tional demand for damages was premature. The action filed by the Lee heirs was also dismissed.

Willful disobedience of a mandate, lawful judgment, writ or process of court is a constructive contempt of court. La.C.C.P. Art. 224(2). Proceedings for contempt must be strictly construed, and the policy of our law does not favor extending their scope. Roy v. Berard, 227 La. 86, 78 So.2d 519 (1955). Unless a litigant willfully disobeys a direct order of the court issued prior to the contempt rule, he should not' be held in contempt, even if his acts tend to frustrate the opposing litigant. City of Monroe v. Evans, 385 So.2d 912 (2nd Cir. 1980).

Since the injunction did not directly enjoin the filing of a suit, we find no error in the trial court’s failure to find contempt.

Appellants next contend that the Lee heirs were in contempt of court by employing a third person to mark and sell timber on appellants’ tract. The only testimony of this action or any action other than the filing of the lawsuit was the testimony of Mr. Kent. Even the third person was not called to testify. The Lee heirs denied having any knowledge of the action or of performing any other act to harass appellants. We cannot say that the trial judge’s finding that appellants failed to prove any specific act which would constitute a violation of the injunction was manifestly erroneous. Arceneaux v. Domingue, S65 So.2d 1330 (La.1978).

Appellants complain of the dismissal of the reconventional demand for damages as premature, since attorney’s fees had accrued in the attachment and garnishment action. Termination of civil proceedings which are contended to have been maliciously prosecuted is an essential element for successful action for malicious prosecution. Robinson v. Goudchaux’s, 307 So.2d 287 (La.1975). However, the relevant point in time is the outset of the trial. Hibernia National Bank of New Orleans v. Bolleter, 390 So.2d 842 (La.1980).

Suit No. 8764 was dismissed only by the trial court’s judgment in the consolidated cases. The trial court did not err in finding Mr. Kent’s suit for malicious prosecution was premature.

Similarly, an action for libel or slander arising out of allegations or statements made in a judicial proceeding cannot be brought by a party to the judicial proceeding, until the proceeding is terminated. Marionneaux v. King, 331 So.2d 180 (1st Cir. 1976).

For these reasons, we affirm the trial court’s decision with costs assessed to the appellants.

AFFIRMED.

      . La.C.C.P. Art. 224(2):
      “A constructive contempt of court is any contempt other than a direct one.
      Any of the following acts constitutes a constructive contempt of court:

      (2) Wilful disobedience of any lawful judgment, order, mandate, writ, or process of the court;”


text:
    William F. TUCKER v. Dr. Randolph M. HOWES.
    No. 14648.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.

      Curtis M. Baham, Jr., Hammond, for plaintiff.
    James E. Kuhn, Denham Springs, for defendant.
    Before ELLIS, PONDER and SAVOIE, JJ.
   SAVOIE, Judge.

On December 16, 1980, William Frank Tucker (Plaintiff) filed this action, seeking recovery of damages allegedly sustained as a result of an intentional battery committed upon him by Randolph M. Howes (Defendant). No answer to plaintiff’s petition was filed by defendant, nor did he make any appearance in these proceedings. A preliminary default was entered against defendant on March 9, 1981. Confirmation of this default occurred on March 12, 1981. After being taken under advisement by the trial judge, judgment in favor of plaintiff in the amount of $2,000.00 was rendered and signed on this date.

Defendant has timely perfected a suspen-sive appeal to this court from the said judgment.

Plaintiff testified that, while at work at a Hammond Pizza Inn on August 10, 1980, he was summoned from a back room by a message that defendant wished to speak to him. He stated that when he walked up front, he was immediately grabbed by defendant and thrown against the pizza ovens. He testified that his calls for help were ignored by people standing around, watching. Defendant held him in this position, with his hands at his throat and screaming at him, until he managed to escape and flee the premises. He stated that he ran to the home of his boss, who lived several blocks away, and told him what had happened. They then returned to the Pizza Inn together, but plaintiff refused to go inside because he was frightened of defendant. He testified that he had not provoked defendant, who began his attack immediately upon seeing him. Plaintiff was seventeen years old at the time of this incident. As a result of this incident, plaintiff sought medical attention from Dr. Lensgraf, a chiropractor. He received treatment in the back and neck area. He visited this chiropractor on approximately six occasions, the last time being on November 11, 1980. He testified that at the time of trial he continued to experience pain in his lower back. He also testified that he has experienced trouble in sleeping, and nightmares since this incident.

Plaintiff missed approximately seven days of work as a result of this battery. At the time he was working approximately seven hours a day, at a rate of $3.75 per hour.

Pascal Aines, a friend and co-employee of plaintiff at the time, testified on behalf of plaintiff. He stated that he was working at the Pizza Inn on the night in question and was present during the battery. He testified that he saw defendant push plaintiff against the ovens and hold him there until he finally escaped.

Pat Tucker, plaintiff’s mother, testified that she paid Dr. Lensgraf for six visits by plaintiff, at $15.00 per visit. She testified that her son has made continuous complaints of pain to her with regard to his injuries. She also stated that plaintiff missed work following this incident, because he was afraid to go back to work.

This matter comes before the Court on three Assignments of Error:

1. The Court erred in allowing the confirmation of a Judgment when an examination of the record reflects that there was lack of proper citation on the defendant in the proceedings.
2. The Court erred in rendering a Judgment in favor of the plaintiff when there is inadequate and inadmissable testimony and evidence in the record in the plaintiffs attempt to prove a prima facie case in a default judgment.
3. The Court erred in granting a Judgment in the amount eventually rendered against the plaintiff as the record is totally lacking in admissible and competent testimony justifying the judgment ultimately rendered.

ASSIGNMENT OF ERROR NO. 1

Defendant alleges that the service made upon him was improper because it was made by a deputy marshall. Although he seems to raise it as a possibility, defendant does not expressly deny that this service, which the return indicates was personal, was made upon him. Rather, he argues that service was improper because it was made by a , deputy marshall, an official whom the Code of Civil Procedure does not expressly authorize to make service, and because the record contains no indication that this particular deputy marshall was authorized to effect service in accordance with C.C.P. 1293.

An attack upon the correctness of the return could not properly be raised by defendant in this appeal. If made after judgment, an attack on a return itself may be made only in a direct action to annul the judgment. L.S.A.-R.S. 13:3471(5). Defendant filed no such action and, therefore, cannot now raise the issue of the correctness of the return.

ASSIGNMENT OF ERROR NO. 2

Confirmation of a default judgment must be made by admissible and credible evidence sufficient to prove each element of plaintiff’s claim as though each allegation had been specifically denied by defendant. L.S.A.-C.C.P. 1702; Cowell v. Dairyland Insurance Company, 399 So.2d 701 (La.App. 1st Cir. 1981); Holland v. Aetna Life & Casualty insurance Company, 385 So.2d 316 (La.App. 1st Cir. 1980). A plaintiff sustaining this burden of proof has made out a prima facie case as required by C.C.P. 1702.

Defendant alleges that plaintiff has not met this burden since hearsay evidence is insufficient to make out a prima facie case. Defendant is apparently referring in large part to the introduction into evidence of the following documents: 1) a copy of the minutes of Hammond City Court, establishing that defendant pled nolo contendere to a charge of simple battery arising out of the incident occurring on August 10, 1980, and 2) a handwritten note from Dr. Lens-graf stating that he had treated plaintiff on six visits for a pinched nerve. Defendant’s contention that hearsay evidence is insufficient to make out a prima facie case is, of course, correct. Jones v. Ledet, 383 So.2d 1308 .(La.App. 3rd Cir. 1980); Blackwell v. Daigle, 317 So.2d 18 (La.App. 3rd Cir.), writ denied, 320 So.2d 563 (La.1975). However, the record, as a whole, indicates that although it does contain this admittedly hearsay evidence, it also contains sufficient admissible, competent evidence to make out a prima facie case against defendant. The testimony of plaintiff, as corroborated by that of Pascal Aines, establishes that a battery was, in fact, committed upon plaintiff by defendant, who physically grabbed and pushed him. It also indicates that this battery was intentional and without provocation.

The credibility of this testimony was a matter for the determination of the trial judge who, in view of the judgment rendered by him, apparently found it to be credible. His determination in this respect should, therefore, not be overturned in the absence of manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Rahm v. Exxon Corporation, 399 So.2d 676 (La.App. 1st Cir. 1981). The record reveals no such error in the present case.

Having established an intentional battery, plaintiff was then required to prove resulting injury.

Even without consideration of this “medical note”, however, there is ample evidence in the record indicating that an injury occurred. Plaintiff testified as to the pain which he experienced, as well as the fact that he made six visits to Dr. Lensgraf. Plaintiff’s mother also testified that he had made numerous complaints of pain to her. Although the testimony of both plaintiff and his mother could perhaps be considered biased, this is a matter which went to its credibility. The trial judge in the instant case obviously accepted this testimony, and as indicated above, such a determination should not be overturned in the absence of manifest error. Canter v. Koehring Company, supra; Rahm v. Exxon Corporation, supra.

ASSIGNMENT OF ERROR NO. 3

The trier of fact is afforded broad discretion in making an award of general damages. La.C.C. Art. 1934, subd. 3. Only when the record reveals a clear abuse of this discretion is an appellate court justified in disturbing a trial court award. Perniciaro v. Brinch, 384 So.2d 392 (La.1980); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976); and Autin v. Allstate Insurance Company, 402 So.2d 219 (La.App. 1st Cir. 1981).

In Reck v. Stevens, 373 So.2d 498 (La.1979), the Louisiana Supreme Court set out the standard to be followed by Appellate Courts in reviewing trial court damage awards. The court said, at page 501:

“Thus, the initial inquiry must always be directed at whether the trier court’s award for the particular injuries and their effects upon this particular injured person is a clear abuse of the trier of fact’s ‘much discretion’, La.Civ.C. Art. 1934(3) in the award of damages. It is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review, for articulated reason, be considered either excessive, Carollo v. Wilson, 353 So.2d 249 (La.1977); Schexnayder v. Carpenter, 346 So.2d 196 (La.1977), or insufficient, Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967). Only after such determination of abuse has been reached, is a resort to prior awards appropriate under Coco for purposes of then determining what would be an appropriate award for the present case.”

The facts in the present case indicate support for an award to plaintiff or damages for physical pain and suffering. Plaintiff’s testimony indicated that the pain he experienced in his back warranted his making six visits to Dr. Lensgraf. He also testified that he continued to experience pain in his back at the time of the trial.

Additionally, it is well established that a plaintiff is entitled to recover damages for embarrassment, humiliation, indignity and fright experienced as a result of a battery. Kemp v. Allstate insurance Company, 247 So.2d 142 (La.App. 1st Cir. 1971); Taylor v. City of Baton Rouge, 233 So.2d 325 (La. App. 1st Cir. 1970), writ refused 256 La. 255, 236 So.2d 32 (1970). The incident in question occurred in front of a number of people, including at least one of plaintiff’s co-employees. Undoubtedly, this was very embarrassing to him. Plaintiff’s testimony indicated that he was, in fact, very frightened by this incident and refused to go back into the Pizza Inn on that night. In Earle v. Wilhite, 299 So.2d 393 (La.App. 2nd Cir. 1974) and Johnson v. Horace Mann Mutual Insurance Company, 241 So.2d 588 (La.App. 2nd Cir. 1970), each plaintiff was awarded $1,000.00 damages for batteries which, while producing only very slight physical injuries, were very humiliating and embarrassing to them. A reading of the record in the present case fails to show that a clear abuse of discretion has occurred. In fact, the facts and circumstances present in this case indicate that the award made was well within the trial court’s broad range of discretion.

Appellant is to pay all costs.

AFFIRMED.


text:
    Stewart P. BLANCHARD v. PROGRESSIVE BANK & TRUST COMPANY.
    No. 14658.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.

      Edward James Gaidry, Houma, for plaintiff and appellant.
    Danny J. Lirette, Houma, for defendant and appellee.
    Before ELLIS, PONDER and SAVOIE, JJ.
   PONDER, Judge.

Plaintiff appealed from the judgment that denied the declaratory relief requested and held that his promissory note was payable on demand and the interest rate was not usurious.

The issues are whether: the note was payable on demand, the rate of interest was usurious, and the amendment of the usury laws cured the usurious rate.

Plaintiff borrowed fifty thousand dollars from the defendant bank in July of 1977. The nóte was secured by a demand collateral real estate mortgage; it provided for a 10% interest rate and stated that payment was “due on demand, if no demand is made, then $600.00 monthly beginning 8-1-77”.

Plaintiff testified that he understood that he would repay the loan in monthly installments for a period of ten years and that the bank could demand immediate payment only if he defaulted under the terms of the note.

After paying $600.00 monthly for approximately one year, the plaintiff received a letter from the defendant stating that the interest rate would be raised from 10% to 11% per annum. Plaintiff continued to make the monthly $600.00 payments.

Approximately one year later, plaintiff received a second letter from the defendant stating that the interest rate would be raised to 12.75%. The letter contained a consent form in which the debtor could elect to be controlled by the Consumer Credit Law. When plaintiff refused to sign the consent form, the defendant refused to accept any further monthly payments and informed the plaintiff they would demand full payment on the note. Plaintiff filed this action seeking declaratory relief and forfeiture of usurious rates.

The trial judge, in written reasons, found that the note was a demand note. He also held that there was no usury because the plaintiff never agreed to any increase in interest.

An instrument payable on demand includes those payable at sight or on presentation and those in which no time for payment is stated. La.R.S. 10:3 — 108.

In People’s National Bank, New Iberia v. Duchamp, 287 So.2d 563 (3rd Cir. 1973) a note stated that it was payable “on demand”. A notation in the corner of the note referred to monthly installments. The court ruled that the notation was indicative of a collateral agreement made by the parties to provide for monthly installments, but did not destroy the demand nature of the note.

The trial judge was correct in interpreting the note as a demand note, but providing for monthly installments if no demand is made.

Since we find that the language of the note is not ambiguous, we need not reach the question of the application of La.C.C. Art. 1957 and 1958.

Also, the plaintiff may not avoid an obligation merely by contending that provisions were not read and explained to him or that he did not understand them. See Bud Finance Company, Inc. v. Gilardi, 330 So.2d 622 (4th Cir. 1976).

Plaintiff argues that the 11% rate charged in 1978 was usurious and that all interest payments paid and becoming payable following the raise in the rate should be forfeited.

At the time the note was made, the maximum rate of conventional interest was 10%. La.R.S. 9:3503. The president of the defendant bank testified that he knew the 11% rate was usurious.

The note in question is not usurious on its face. However, if subsequent payments in fact and by agreement of the parties constitute usurious interest, then the entire interest under the agreement is forfeited. Paulat v. Pirello, 353 So.2d 1307 (La.1977). La.R.S. 9:3501. Parol evidence may be admitted to show that usurious interest was paid and accepted. Karmgard v. Southland Mtg. & Title Co., 341 So.2d 1109 (La.1977).

The only evidence of the increase was the letter the defendant sent to the plaintiff providing that effective on the date of the letter, the interest would be raised to 11%. Plaintiff testified that he thought such action was within the power of the defendant and did not object.

Defendant argues that there is no contract between the parties providing for the usurious interest rate. As pointed out in Paulat v. Pirello, supra, a contract is an agreement between the parties, and is not to be confused with the instrument in writing by which it is witnessed. La.C.C. Art. 1761, 1762.

Plaintiff next argues that all interest paid and becoming payable after the increase of interest to 11% should be forfeited. The defendant replies that the 1979 amendment to La.R.S. 9:3503, increasing the maximum rate to 12% cured the usurious charge.

La.R.S. 9:3501 provides that any contract which provides for usurious interest results in the forfeiture of all of the interest under the contract and not just the usurious portion. Thrift Funds of Baton Rouge, Inc. v. Jones, 274 So.2d 150 (La. 1973). The amendment of La.R.S. 9:3503 cannot remedy the situation because the agreement for a usurious rate was made and all interest under that agreement is forfeited.

The record indicates that plaintiff was not allowed to pay his $600.00 payment for the month of October, 1979 because he would not consent to the 12.75% rate. Plaintiff received a letter from the bank threatening to demand full payment of the note by October 15, 1979. The plaintiff responded through his attorney that he did not consent to the 11% or 12.75% interest rate. The disagreement by the parties as to the interest rate terminated the prior 11% interest agreement. Therefore, the interest paid from November 15, 1978 through September of 1979 was forfeited under the statute.

The defendant is not prevented from collecting 10% interest from the termination of the 11% agreement until the note is paid in full. The 10% rate originally contracted under the note is not usurious, and there is no legal bar to the collection of it by the defendant. Paulat v. Pirello, supra.

For these reasons, the judgment is affirmed in the finding that the note was a demand note but reversed in finding that none of the interest was forfeited due to a usurious rate. There is now judgment decreeing that all interest paid November 15, 1978 to September 19, 1979 be forfeited. Costs are to be equally divided between the plaintiff and defendant.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

      . La.R.S. 10:3-108:
      “Instruments payable on demand include those payable at sight or on presentation and those in which no time for payment is stated."

      . La.C.C. Art. 1957 and 1958:
      “In a doubtful case the agreement is interpreted against him who has contracted the obligation."
      “But if the doubt or obscurity arise for the want of necessary explanation which one of the parties ought to have given, or from any other negligence or fault of his, the construction most favorable to the other party shall be adopted, whether he be obligor or obligee.”

      . Prior to amendment by Act 1979, No. 205 § 1, effective July 6, 1979, La.R.S. 9:3503 provided that 10% was the maximum rate. The amendment by Act 1979 raised the rate to 12%.
      “Notwithstanding any other law to the contrary, particularly but not exclusively Louisiana Civil Code Article 2924, the amount of simple conventional interest on obligations bearing interest from date and secured in whole or in part, directly or indirectly, by a mortgage on immovable property, shall not exceed twelve percent per annum. The same must be fixed in writing; testimonial proof of it is not admitted in any case.”

      . La.R.S. 9:3501:
      “Any contract for the payment of interest in excess of that authorized by law shall result in the forfeiture of the entire interest so contracted.”

      . La.C.C. Art. 1761, 1762:
      “A contract is an agreement, by which one person obligates himself to another, to give, to do or permit, or not to do something, expressed or implied by such agreement.”
      “The contract must not be confounded with the instrument in writing by which it is witnessed. The contract may subsist, although the written act may, for some defect, be declared void; and the written act may be good and authentic, although the contract it witnesses be illegal. The contract itself is only void for some cause or defect determined by law.”


author: ELLIS, Judge:

text:
    Cynthia Henderson KIRK v. Ben Truett KIRK.
    No. 14659.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.

      Alan S. Fishbein, Baton Rouge, for plaintiff.
    Douglas T. Curet, Hammond, for defendant.
    Before ELLIS, PONDER and SAVOIE, JJ.
   ELLIS, Judge:

Cynthia Henderson Kirk and Ben Truett Kirk were divorced by judgment September 2, 1980. In the judgment, Dr. Kirk was ordered to pay Mrs. Kirk alimony in the amount of $500.00 per month. Subsequently, Mrs. Kirk filed a rule for past due alimony and for contempt, alleging Dr. Kirk’s failure to pay the alimony due in November and December, 1980. Dr. Kirk filed a rule for a decrease in alimony and Mrs. Kirk filed another rule for an increase. All rules were tried simultaneously. After trial, judgment was signed making the rule for past due alimony absolute, denying the rule for an increase and reducing the alimony from $500.00 per month to $250.00 per month. Mrs. Kirk has appealed from that part of the judgment reducing the alimony.

Dr. Kirk married on October 17, 1980, Martha Harkness, the mother of his illegitimate child. Prior to his divorce, he had been paying $250.00 per month for the support of the child. He was not sure when he and Mrs. Harkness had begun living together or when he had stopped paying the $250.00 per month. However, Dr. Kirk knew that he was going to marry Mrs. Harkness when the divorce was granted, and when he stipulated to alimony at the rate of $500.00 per month. The record further shows that Dr. Kirk’s salary was the same at the time of the divorce and at the time that he asked for a decrease in alimony. Dr. Kirk was also in business as a general contractor, building houses for sale. His corporation was the owner of $30,000.00 in certificates of deposit, and he and the first Mrs. Kirk were the owners of a $10,-000.00 certificate of deposit. The interest on these certificates was allowed to accumulate, and was not counted as part of the income of either party. At the time of the trial, the corporation had just completed building a house, which was for sale. Dr. Kirk had purchased from the corporation for a price substantially below the market price a second house, in which he was living with his second wife and child. The second Mrs. Kirk had a net income of $832.00 per month.

Dr. Kirk’s affidavit of income and expenses showed a total monthly income of $2,245.93 including the income of his second wife and total expenses of $1,984.00, leaving a balance of $261.93 available for the payment of alimony. The expenses include $100.00 for savings, $50.00 for the support of the Harkness children, and all other expenses resulting from Dr. Kirk’s second marriage.

Mrs. Kirk’s affidavit shows a monthly net income of $697.18 and living expenses of $1,566.00. However, she testified she could get by if the alimony were continued at $500.00 per month.

An alimony award, once fixed, either by trial or by stipulation, is not subject to change unless a substantial change of circumstances in either party can be shown. Jordan v. Jordan, 406 So.2d 322 (La.App. 3rd Cir. 1981). The trial court is vested with broad discretion in such matters, and its conclusion will not be disturbed unless there is an abuse of that discretion.

In this case, no change of circumstances has been shown other than Dr. Kirk’s second marriage, which was contemplated at the time the alimony was first stipulated. Although it is true that the expenses of a subsequent marriage are a factor to be considered in determining whether alimony should be reduced, generally this factor is given little weight. In a case such as this, in which there are no other changes in circumstance, in which the second marriage relieved the husband of a $250.00 per month obligation, and in which the income for the certificates of deposit and the contracting corporation was not taken into account, we think the remarriage, standing alone, is not a sufficient change to justify the reduction, in the light of Mrs. Kirk’s evident need.

The judgment appealed from is therefore reversed insofar as it reduces the alimony, and there will be judgment in favor of Cynthia Henderson Kirk and against Ben Truett Kirk, dismissing the rule for a decrease in alimony. All costs, in this court and the court below, shall be paid by Ben Truett Kirk.

REVERSED AND RENDERED.


author: WATKINS, Judge.

text:
    Glen D. McNEELY v. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, Pinecrest State School.
    No. 14660.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    Writ Denied June 11, 1982.

      Daniel E. Broussard, Jr.., Broussard, Bolton & Halcomb, Alexandria, for appellant.
    Sidney W. Hall, Staff Atty., Dept, of Health & Human Resources, Baton Rouge, for appellee.
    Laura D. Holmes, Civil Service Legal Counsel, Dept, of State Civil Service, Baton Rouge, for George Hamner, Director, Dept, of State Civil Service.
    Before COVINGTON, COLE and WATKINS, JJ.
   WATKINS, Judge.

Glen D. McNeely, appellant, held the position of Equipment Operator for the Department of Health and Human Resources. On December 15, 1978, McNeely’s paycheck from the state was reduced by an amount of $223.20. McNeely appealed the reduction, which was made under the circumstances herein set forth, to the Civil Service Commission, which held the action of the appointing authority in reducing the amount of the December 15, 1978 paycheck was reasonable and correct. McNeely has perfected an appeal to this court.

McNeely was injured while on the job, and received workmen’s compensation from May 10, 1978 until June 6, 1978. Since the total of McNeely’s compensation benefits and his sick leave benefits exceeded his regular salary by the amount of his compensation benefits, appellant endorsed his compensation checks, which were paid by the appointing authority’s compensation insurer, Rockwood Insurance Company, over to the appointing authority, thereby “buying back” his sick leave. Appellant was unable to return to work on June 6, 1978. He continued to receive sick leave benefits, but his compensation benefits were discontinued. On June 27, 1978, he retained an attorney to represent him in his claim for workmen’s compensation benefits. The matter was settled out of court for the sum of $1,116.00. Twenty percent of this amount, or $223.00, was retained by counsel as his attorney’s fees, and the remaining sum of $892.80 was tendered to the appointing authority to “buy back” additional sick leave. The appointing authority credited the amount of $892.80 to appellant’s sick leave, but deducted the sum of $223.20 from appellant’s back pay.

The Civil Service Commission found that the deduction of the sum of $223.20 was correct under Civil Service Rule 11:21, which reads as follows:

“When an employee is absent from work due to disabilities for which he is entitled to workmen’s compensation he
(a) shall, to the extent of the amount accrued to his credit, be granted sick leave not to exceed the amount necessary to receive total payments for leave and workmen’s compensation equal to his regular salary.
(b) may, to the extent of the amount accrued to his credit, be granted annual leave or a combination of annual and sick leave not to exceed the amount necessary to receive total payments for leave and workmen’s compensation equal to his regular salary.

(c) may be granted leave without pay.”

The Civil Service Commission construed Rule 11:21 to mean that in “buying back” sick leave the employee must tender to the appointing authority the gross amount of workmen’s compensation benefits, including attorney’s fees owed employee’s counsel by the employee, rather than the net amount, in a case in which combined gross compensation benefits and sick leave benefits exceeded regular salary by the amount of gross compensation benefits.

The Civil Service Commission is given broad and general rule-making powers by Article X, Section 10 of the Louisiana Constitution of 1974. Rules adopted pursuant to that article, by the express language of that article, have “the effect of law”.

An administrative agency may interpret its own rules and such an interpretation becomes part of the rule. Sawyer v. Central Louisiana Electric Company, 136 So.2d 153 (La.App. 3d Cir. 1961). The Civil Service Commission in the present case interpreted Civil Service Rule 11:21 to require that an employee’s gross workmen’s compensation benefit be used in determining the amount to be tendered in buying back sick leave. That interpretation, under the holding of Sawyer, becomes part of the rule for the present and all future cases. We cannot say the Commission’s interpretation of the rule is unjust or unreasonable. McNeely retained counsel under a contingency fee. The Louisiana Workmen’s Compensation Act specifically provides for contingency fees. LSA-R.S. 23:1141. Contingency fees were discussed favorably and at great length by the Louisiana Supreme Court on rehearing in Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102 (La. 1979) wherein the social importance of contingency fees to our society was noted, and a statute providing for contingency fees in general was upheld. (See LSA-R.S. 37:218) As the Civil Service Commission indicated in the instant case, the contingent fee was a legitimate debt of the employee for which he himself contracted, and the appointing authority should not be required to pay the employee’s legitimate debts. Thus the rule of the Civil Service Commission was reasonable and proper, and, as it has the force of law, authorizes the deduction from the paycheck complained of by the employee.

Employee argues, however, that the Civil Service Rule 11:21 was illegal and unconstitutional.

The legality of Rule 11:21 was challenged and expressly upheld in Basco v. State of La., Dept. of Corrections, 335 So.2d 457 (La.App. 1st Cir. 1976), writ denied 338 So.2d 701 (La.1976). Nor does the rule deny equal protection of the laws or deny access of the public to the court as McNeely complains. So long as the law applies to all persons in the same circumstances in a like fashion, the requirements of equal protection are met. Foster v. Hampton, 352 So.2d 197 (La.1977). All employees are treated equally by Rule 11:21. As fees for legal services are a universally accepted part of our legal system, and as contingency fees are permitted as a matter of statutory law and public policy, it cannot be said the courts were not open to McNeely in the sense meant by Article I, Section 22 of the Louisiana Constitution of 1974. Thus, McNeely’s claims that Civil Service Rule 11:21 is illegal or unconstitutional are lacking in foundation.

As Rule 11:21, as interpreted by the Civil Service Commission, clearly permits the reduction in the amount of the paycheck complained of, and as the rule is neither unconstitutional nor illegal, the determination of the Civil Service Commission is affirmed, at appellant’s cost.

AFFIRMED.