author: KLIEBERT, Judge.

text:
    James LEE v. STATE FARM FIRE AND CASUALTY COMPANY.
    No. 11979.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 2, 1981.
    Rehearing Denied July 13, 1981.
    Bruno, Bruno & Blouin, Frank S. Bruno, New Orleans, for plaintiff-appellee.
    Porteous, Toledano, Hainkel & Johnson, Michael K. Fitzpatrick, Daniel Hynes, New Orleans, for defendants-appellants.
    Before REDMANN, KLIEBERT and KLEES, JJ.
   KLIEBERT, Judge.

On May 23,1975, James Lee, plaintiff-ap-pellee (hereafter Lee), an employee of Standard Steel of New Orleans, Inc., was injured while on the job when steel fell on his right foot as he was helping Robert Fau-cheaux, Jr., defendant-appellant (hereafter Faucheaux) move it. Lee filed an executive officer’s suit on January 26, 1976, naming as the sole defendant State Farm Fire and Casualty Company (hereafter State Farm), in its alleged capacity as the general liability insurer of the executive officers of Standard Steel of New Orleans, Inc. On February 11, 1976, State Farm filed an answer, asserting a general denial and alleging negligence and alternatively contributory negligence on Lee’s part. On March 22, 1977, a supplemental and amending petition was filed naming as co-defendants Robert Faucheaux, Jr. and Edmond Faucheaux, both officers of Standard Steel. On March 28, 1977, State Farm filed exceptions of no right or no cause of action. The exceptions were grounded in the contention the policy of insurance issued by State Farm, although labeled “General Liability Policy”, was actually an owner, landlord and tenants liability policy and contained an exclusion of coverage for “bodily injury to an employee of the insured arising out of or in the course of his employment by the insured ...” Simultaneously with the filing of the exceptions by State Farm, the same law firm filed exceptions of prescription on behalf of the executive officers who had been included in the suit by the supplemental petition. The trial judge, on May 27, 1977, maintained State Farm’s exception of no right or no cause of action, but overruled the exception of prescription filed by the executive officers. On October 26, 1977, Robert and Herbert Faucheaux, appearing through a different law firm, answered the supplemental and amended petition and filed a third party demand against State Farm Fire and Casualty Company, their insurer, and its insurance agent. The third party demand alleged negligence and/or breach of contract on the part of the agent and State Farm in failing to provide a general liability policy to the Faucheauxs. State Farm answered the third party petition denying the negligence and averring the policy of insurance issued by it as the best source of its contents. On the same day, State Farm filed an exception labeled “an exception of prescription” averring that since the main demand had prescribed the third party petition also prescribed. According to a written stipulation in the record, entered into before the commencement of the trial, this third party demand was compromised with State Farm agreeing that, in consideration of the dismissal of the third party action, State Farm would provide a defense for the Faucheauxs and also indemnify them for any judgment rendered against them up to one hundred thousand dollars. After a jury trial on the merits, judgment was rendered against Robert and Herbert Faucheaux, in solido, for $40,-000.00. Defendants appeal.

On appeal, appellants by assignments of error raise two issues: (1) whether the claim against Robert and Herbert Fau-cheaux had prescribed because the supplemental petition bringing them into the litigation was filed more than one year after the date of the accident, and (2) whether the award of $40,000.00 made by the jury was excessive.

For the following reasons we affirm the trial judge’s ruling dismissing the exception of prescription and affirm the jury’s $40,-000.00 award for damages.

Considering first the prescription issue, we note all parties agree with the legal principal that a suit filed against one solida-ry obligor interrupts the prescription as to all solidary obligors (See Aetna Insurance Company v. Boh Bros. Const. Co., 365 So.2d 927 [4th Cir. 1978]).

Under the compromise agreement with the executive officers, State Farm agreed to supply a defense and to provide coverage on the claims here asserted up to $100,000.00. Thus, although earlier dismissed from the litigation because of the exclusion in the liability policy, State Farm, through the compromise agreement, amended the policy and provided coverage for the claims asserted here and, hence, in truth and in fact was the insurer of the executive officers and solidarily liable with them.

The initial petition filed against State Farm alleged the accident was caused solely through the negligence of Robert H. Fau-cheaux, Jr., and enumerated his purported acts of negligence. Further, it specifically alleged State Farm was the liability insurer. In a deposition given on May 3, 1976 and May 23, 1977, Robert Faucheaux testified State Farm had previously informed him of the claim and he had notice of and knew of the lawsuit shortly after it was filed in January, 1976, much less than a year after the accident.

In Andrepont v. Ochsner, 84 So.2d 63 (Orleans App. 1955) this court, while reviewing the then existing jurisprudence on interruption of prescription, concluded at page 68 as follows:

“Thus it appears that all of the cases seem to be based on the theory that the knowledge of the demand, its origin, and basis, are imparted to the defendant even though the original suit was brought against the wrong defendant or against the defendant in an improper capacity, and even when brought by an improper plaintiff. So long as the proper person has been apprised of the demand in any legal capacity, prescription is interrupted.” (Emphasis added.)

At a later time, the Supreme Court, while also reviewing the jurisprudence in Allstate Insurance Co. v. Theriot, 376 So.2d 950 (La.1979), quoted from Nini v. Sanford Brothers, Inc., 276 So.2d 262 (La.1973) as follows:

“When the defendant knows or should know, prior to the expiration of the prescriptive period, that legal demands are made upon him from the occurrence described in the petition filed, prescription is interrupted.”

And then, in further elaboration as to the basis for a line of cited jurisprudence, said at page 954:

“The underlying reason why prescription does, not bar the subsequent claim in these instances is that the defendant has adequate and timely notice by legal demand on behalf of indicated interests that liability arising out of the factual occurrence pleaded is sought to be enforced against him. The fundamental purpose of prescription statutes is only to afford a defendant security of mind and affairs if no claim is made timely, and to protect him from stale claims and from the loss or non-preservation of relevant proof ...”

Since none of the basic prescriptive values are offered here, and since defendants, Robert and Herbert Faucheaux were timely and adequately apprised of Lee’s claim, we affirm the district judge’s ruling that prescription was not a bar to Lee’s claim against the executive officers.

Next we consider the alternative excessive award contention of State Farm. Dr. Robert E. Ruel, Jr., orthopedic surgeon, was Lee’s treating physician. Dr. Ruel first examined Lee in the emergency room at Methodist Hospital, where he diagnosed multiple fractures of the foot (including fractures of the fourth and fifth toes and a displaced fracture of the fourth metatarsal neck). In emergency surgery, a fasiectomy was performed to preserve as much of the foot as possible and to amputate the fifth toe, which was diagnosed as being “dead”. Approximately one month later, he was hospitalized again with a gangreneous fourth toe which was amputated. Also a ray resection was performed wherein part of the metatarsal bones were removed in order to provide Lee with a better contour of his foot. Both operations were performed under general anesthesia. Dr. Ruel ascribed a one hundred percent (100%) disability to the fourth and fifth toes and a ten percent (10%) permanent physical impairment of the entire lower extremity.

Before,an appellate court can disturb an award made by a trial court, the record must clearly reveal the trier of fact abused its “much discretion” in making its award. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977). The reviewing court should not disturb the trier’s award absent the determination that the trial court abused its very great discretion. Wilson v. Magee, 367 So.2d 314 (La.1979). We cannot say the jury abused its “much discretion”; hence, we affirm its decision on quantum.

For the foregoing reasons, the judgment of the trial court is affirmed; cost to be borne by the defendant-appellant.

AFFIRMED.

      . Herbert Faucheaux was initially labeled as Edmond Faucheaux in the supplemental and amending petition. Apparently, his full legal name is Robert Herbert Faucheaux, Sr.


source: Caselaw Access Project

author: REDMANN, Judge.

license: Public Domain

text:
    Succession of Evelene V. Haase DUGAS. Anthony Donald HAASE, Sr., et al. v. Dalferes F. ROBICHEAUX, Jr., et ux.
    Nos. 11981, 11982.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 2, 1981.
    Rehearing Denied July 13, 1981.
    Baldwin & Haspel, Jacob J. Meyer, New Orleans, for plaintiffs-appellants.
    Charles E. McHale, Jr., New Orleans, for defendants-appellees.
    Before REDMANN, KLIEBERT and KLEES, JJ.
   REDMANN, Judge.

Some of decedent’s legal heirs appeal from a judgment upholding her one-page statutory will against their attack. They argue the will is invalid because her signature appears after the attestation when the statute requires it “at the end of the will”; because she could not read without a magnifying lens and did not have such a lens with her at its execution; and because she lacked testamentary capacity. We affirm.

The requirement of the testatrix’s signature “at the end of the will,” La.R.S. 9:2442 (as amended, Acts 1974 No. 246), must be held to be met by her signature after the brief attestation of witnesses and notary following the dispositive clauses, just as (as held by Succession of Bel, La.App. 4 Cir. 1979, 377 So.2d 1380, writ refused 381 So.2d 1211) the statute’s requirement that “the statutory will ... shall be dated” is met by the date in the conclusion of the attestation (a date also statutorily required). The opponents quote from Bel, id. at 1382, that “a valid statutory will must be signed above the attestation clause by the testator . ..,” but this language is obiter dictum, not part of the court’s essential reasoning regarding the date’s location, is inconsistent with Bel’s treating the “will” as dated by a date in the attestation, and, in any event, cannot be cited as authority to hold a will invalid because the holding of Bel was that its will was valid.

It is “a basic principle of construction of wills, that the validity of a will is to be maintained if possible,” Succession of Morgan, 1971, 257 La. 380, 242 So.2d 551, 553, and courts “will not require strict, technical and pedantic compliance in form .... ” It would sacrifice substance to form, and reasonableness to hypertechnicality, to reject a will on the basis that the testator or testatrix’s signature was not “at the end of the will” because a space of an inch intervened between the last dispositive clause and the signature (or because a typed, five-line attestation filled so small a space between last dispositive clause and signature). We reason that no such hyper-technical obstacle to willing one’s property was intended by the 1974 amendment of R.S. 9:2442. We believe that the only reasonable interpretation of the “end of the will” requirement is the signature should be located after all dispositive clauses. The testatrix’s signature on this will is so located, notwithstanding that it is also located after the attestation. The will is not formally invalid because of the location of testatrix’s signature.

Decedent’s need for a magnifying lens to read does not make her “not able to read,” La.R.S. 9:2443, which alone would disqualify her under the statute. Many, perhaps most, older persons need glasses for reading. But we have previously decided that a decedent’s need for glasses and failure to read the will does not invalidate a statutory will; Succession of Harris, La. App. 4 Cir. 1975, 329 So.2d 493, writ refused, 332 So.2d 862.

The testamentary capacity of the 94-year-old decedent at the moment of making the will was fairly established by the evidence which the trial judge accepted, although there was other evidence which might have supported an inference that at certain times decedent lacked capacity. The proponents presented the testimony of the witnesses to the will and of decedent’s clergyman, whom she visited on her way back from making the will. Opponents’ argument that the clergyman’s testimony was “impeached,” because in deposition he had said decedent’s visit was on her way to making the will, places an unacceptable emphasis on an insignificant variation fully explained by the clergyman himself: he had simply misunderstood at the time of the visit, and it was not until after the deposition that he learned that making the will had preceded the visit. We simply cannot say that the trial judge was clearly wrong in placing credibility in the witnesses presented by proponents. We therefore cannot reverse his factual finding based on a credibility evaluation; Canter v. Koehring Co., La. 1973, 283 So.2d 716.

Our conclusion that the will is valid makes it unnecessary to discuss the attack on decedent’s earlier transfer of one piece of property to the persons the will made her universal heirs.

Affirmed.


author: GULOTTA, Judge.

text:
    STATE of Louisiana in the Interest of Myiea CLARK.
    No. 12211.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 2, 1981.

      New Orleans Legal Assistance Corp., Archie B. Creech, New Orleans, for appellant.
    Harry F. Connick, Dist. Atty., Paul G. Mayoral, Asst. Dist. Atty., Juvenile Div., New Orleans, for appellee.
    Before GULOTTA, GARRISON and CHEHARDY, JJ.
   GULOTTA, Judge.

Mellovenia Clark appeals from a Juvenile Court’s finding of her child, Myiea, then four months old, to be “a neglected child and in need of care” as defined by LSA-R.S. 13:1569(16) and LSA-C.J.P. Art. 13(14). Mellovenia contends that there was insufficient evidence to support the finding and that the court based its holding on inadmissible hearsay without any direct evidence of neglect.

The State has moved to dismiss the appeal as moot since the mother has regained custody of the child, married, and moved to California with her husband and Myiea. Alternatively, the State argues on the merits that the trial court’s finding is not manifestly erroneous.

MOTION TO DISMISS

At the outset, we reject the State’s contention that the appeal should be dismissed as moot.

Upon finding the child to be neglected and in need of care on March 28, 1979, the trial judge placed her in the temporary custody of the Office of Family Services. Psychological and psychiatric evaluations of the mother and maternal grandmother were ordered for submission to the court prior to further disposition. After subsequent hearings in June and August, 1979, where further testimony was heard and psychological evaluations and home studies were submitted to the court for its review, the judge ordered the child returned to the mother on October 23, 1979 under close supervision of the Office of Human Development, which was directed to provide continued counseling services to the mother and to submit progress reports to the court.

On October 23, 1979, Mellovenia filed a motion for appeal and the record was lodged in this court on December 23, 1980. On February 6, 1981, the State filed a motion in this court to dismiss the appeal on the ground that the mother had since married and moved with the child to a comfortable home in California “with the blessing and concurrence of the Office of Human Development”. Attached to the motion to dismiss is a copy of a letter dated January 16, 1981 from the Office of Human Development to the trial judge indicating that the mother had married on December 6, 1980 and had moved to Los Angeles.

Appellate courts do not give opinions on moot questions or abstract propositions from which no practical results can follow. However, as was stated in State In Interest of Gray, 353 So.2d 393 (La.App. 4th Cir. 1977), the sanction against a parent is severe where a finding of neglect has been made. To dismiss this appeal as moot would effectively foreclose the mother from attacking any alleged errors in the neglect proceeding and deny her the right to appeal.

For these reasons, we deny the motion to dismiss.

SUFFICIENCY OF EVIDENCE

At the March 28 adjudicatory hearing, the trial judge heard the testimony of two social workers, a psychologist, the mother and maternal grandmother of the child, an aunt and friends of the family.

Stella Schwarze, a psychological social worker at Charity Hospital, learned of My-iea’s possible neglect on January 31, 1979 from Ida Clark, the child’s maternal grandmother. The grandmother went to the hospital on a routine regularly scheduled visit for her own medical needs. According to Ms. Schwarze, Ida related that her daughter Mellovenia had reached “the end of the rope” and had been brought to the Crisis Intervention Unit at Charity to see a psychologist on January 16. According to Ms. Schwarze, Ida told her that Mellovenia had not made adequate practical or financial preparations for the baby during her pregnancy, had slapped the child once when it was two months old to make it stop crying, and had stated once that she did not care if the baby starved when there was no milk in the refrigerator. Ms. Schwarze testified that the grandmother also had told her Mellovenia had punched the wall twice, shaken the bed, pulled her hair, and screamed to be taken to the hospital on January 16. Based on the grandmother’s statements, this social worker felt that there was great emotional conflict in the family, that the grandmother was afraid of possible child abuse with the daughter’s nervousness, that the baby was the focus of the anger, and that the possibility existed the mother would “blow up” again and injure the child. Schwarze therefore referred the case to the Office of Human Development for investigation.

Although she had not personally checked out the physical condition of the child or interviewed Mellovenia, Schwarze was of the opinion that there existed a latent danger to the child and that to return the baby to the unimproved home situation would jeopardize the welfare of the baby. This witness recommended that the baby remain in foster care and that Mellovenia be encouraged to live her own life and obtain employment with the view of introducing her back to child care with day care assistance.

Jeanne Elder, a social worker in the Office of Human Development, testified that she had received an emergency referral from a social worker at Charity Hospital who was concerned that the Clark baby was in danger. Ms. Elder went to the Clark household on January 31,1979 and talked to Mellovenia, the mother, and Ida, the maternal grandmother. Elder testified that Ida was “very anxious” and wanted her daughter Mellovenia to sign a voluntary placement of the baby for adoption since they were not capable of handling the child. According to Elder, Mellovenia said she would like to place the baby with relatives because it made her “nervous”. This social worker further testified that the grandmother had said that Mellovenia once hit the baby to stop it from crying. According to Elder, both the mother and grandmother said Mel-lovenia was angry with her father, the child’s maternal grandfather, because he had rejected her at the time of her pregnancy out of wedlock. Elder was of the opinion that even though the child appeared to be normal and healthy without signs of abuse and the home itself was clean, the animosity between the mother and grandmother created a latent danger to the child. This social worker felt that the mother should seek professional help and that it was dangerous to send the child back to her home.

Dr. Edward Shwery, a clinical psychologist, also testified. Although he had not interviewed the grandmother or the mother and had not seen the child at the time of trial, he had reviewed Elder’s affidavit upon which the neglect petition was founded. Given a hypothetical situation where the maternal grandparents, the mother and the three-month-old child lived in a neat house, where animosity existed between the mother and the grandmother, where the mother had slapped the baby to make it stop crying on one occasion, and where the other alleged incidents outlined in Elder and Schwarze’s testimony existed, Dr. Schwery was of the opinion that it would be possible for the mother to harm the child and that it would be better to remove the child from the environment rather than subject it to emotional confusion.

On the other hand, in her testimony before the court, Ida Clark, the grandmother, denied ever saying Mellovenia had spanked the baby or had mistreated it. Ida testified that Mellovenia had suffered an attack of asthma on January 16 and had been taken to the hospital complaining of head pain. According to Ida, Mellovenia at no time had said that she could not take care of the baby. At trial Ida said Mellovenia has never hit the baby, neglected it, or become nervous if the baby does not stop crying. Ida further testified that she had not told Schwarze that she and Mellovenia were near a breakdown.

Mellovenia testified that she was not so nervous or sick that' the baby had to be taken away from her. She attributed the screaming and hair pulling incident on January 16 to some medication she had been taking. She denied ever telling Elder that she does not take care of the baby or that she would hurt it if someone did not stop her. She stated that she had never hit the baby or thrown it down. According to Mel-lovenia, although she had asked her father to leave because of his drinking, there were no serious arguments in the home affecting the baby. Mellovenia and Ida’s testimony concerning the home environment and absence of neglect and mistreatment was corroborated by other witnesses frequenting the family home.

LSA-C.J.P. Art. 73 provides that in child neglect proceedings the State shall prove the allegations of the petition “by a preponderance of the evidence.” LSA-C.J.P. Art. 71 further states that the adjudication hearing “shall be conducted according to the rules of evidence applicable to civil proceedings.” The general rule of inadmissibility of hearsay evidence is one such rule of evidence that has been enforced in child neglect proceedings. See State In Interest of Prestridge, 328 So.2d 868 (La.App. 2nd Cir. 1975).

Hearsay evidence is defined as testimony in court, or written evidence of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter. State v. King, 355 So.2d 1305 (La.1978). In other words, it is a statement that is offered in evidence to prove the truth of the matters therein stated, but that is not made by the author when a witness before the court at the particular trial in which it is so offered. Veal v. Hutchinson, 284 So.2d 60 (La.App. 4th Cir. 1973), writ denied 286 So.2d 662 (La.1973). Hearsay evidence is excluded as being unreliable because it is based upon statements made by persons who are not before the court, have not been sworn and are not available for cross-examination. Lambert v. Heirs of Adams, 325 So.2d 331 (La.App. 3rd Cir. 1976), application denied 329 So.2d 458 (La.1976).

Where the declarant is before the court and available for cross-examination, the unreliability of the hearsay is considerably removed. Accordingly, modern authorities have taken the position that evidence of a' hearsay declaration is admissible if the judge finds that the declarant is present and subject to cross-examination. See Model Code of Evidence, Rule 503(b); Uniform Rules of Evidence, Rule 63(1). See also, the discussion in McCormick, Evidence, 2nd Ed., § 251.

In our case, the social workers testified concerning oral statements made to them by either Ida or Mellovenia, or both. These statements were made in connection with the social workers’ professional investigation of the case and formed the basis of their opinions concerning the child’s welfare. Both Ida and Mellovenia were present at the hearing, testified and underwent cross-examination. Under these circumstances, their pre-trial statements made to the social workers, éven if hearsay in nature, cannot be viewed as unreliable. We therefore find no error in the ruling of the trial judge admitting this testimony into evidence.

We likewise find no error in the trial court’s apparent reliance on Dr. Shwery’s opinion. This witness was accepted as an expert psychologist and was competent to give an opinion in answer to a hypothetical question that assumed facts already in evidence. Bank of La. in New Orleans v. Charia, 359 So.2d 724 (La.App. 4th Cir. 1978).

Accordingly, even though no direct evidence of child neglect was adduced at trial, the testimony of the social workers and the psychologist concerning the potential harm to the baby was sufficient to support the trial judge’s finding of neglect. Finding no error, we affirm the judgment of the trial court.

AFFIRMED.

      . The child and its unwed mother were living with the mother’s parents in their home.

      . See United Tchrs. of New Orleans v. Orleans Parish Sch. Bd., 355 So.2d 899 (La.1978); Upper Audubon Ass’n. v. Audubon Park Com’n., 329 So.2d 209 (La.App. 4th Cir. 1976).

      . At the time of the hearing, the child was in the custody of the State. On the basis of Elder’s investigation, the judge had issued an oral “hold order” and the baby was removed from the Clark home on February 1, 1979.

      . These witnesses testifying on behalf of the mother were Minevia Riley (Mellovenia’s aunt), and Adele Powell, Laurene Jones and Jessie Temple (friends of the family).

      . LSA-R.S. 13:1579.1, repealed by Acts 1978, No. 172, § 5, formerly provided that hearsay evidence could be considered by the trial judge in neglect proceedings.


text:
    Succession of Edna LaCroix, Widow of Walter F. POYNOT.
    No. 12415.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 2, 1981.

      William F. Wessel, New Orleans, for relator.
    Harry R. Cabral, Jr., Metairie, Arthur C. Reuter, New Orleans, Harry A. Burglass, Metairie, for respondent.
    Before REDMANN, BARRY and KLEES, JJ.
   REDMANN, Judge.

On certiorari, we amend a judgment dismissing on exception of no cause of action a petition to remove the provisional co-administrators of a succession. We amend the judgment to grant leave to amend the petition to cure its defect, in accordance with La.C.C.P. 934.

Petitioners are the beneficiaries of the 87-year-old decedent under a will dated April 18, 1978, and respondent provisional administrators are in-laws and nominees of the beneficiaries of a will dated November 30, 1971. Petitioner Gerald G. Pfister is sole beneficiary under yet another will, dated August 12, 1974 (apparently the date of death of decedent’s husband), and also claims to be her sole legal heir by virtue of a notarial act of adoption dated August 28, 1974 but not recorded until December 13, 1974. Between the date of that act and its recordation, a successful action for decedent’s interdiction was filed on September 4,1974. A suit to annul the act of adoption was filed in 1975 and is still pending; see Poynot v. Pfister, La.App. 4 Cir. 1977, 348 So.2d 98, writ refused La., 351 So.2d 168. Respondent provisional administrators were the co-curators of decedent as an interdict. They and petitioner Pfister have had opposing interests at all times. When they were appointed provisional administrators Pfister sought review from this court but we declined, recognizing the propriety of appointing someone, and noting that the effect of such an appointment is temporary. Meanwhile almost a year has passed and neither will nor adoption contest has been resolved.

The petition to remove the provisional administrators (and their attorneys) merely alleges that the provisional administrators are creating debts for a succession that has $160,000 in cash and that does not require any administration. The petition complains of their obtaining an ex parte order authorizing the sale without advertisement of all of the contents of decedent’s house as wasting assets, using the “perishable goods” procedure of C.C.P. 3264. Petitioners assert in their application for certiorari that the provisional administrators have in fact sold much of the contents to their own relations and friends, all without notice to petitioners.

We first observe that C.C.P. 3111 authorizes a provisional administrator when the court “deems such appointment necessary to preserve, safeguard, and operate the property of the succession.” And C.C.P. 3112 only grants authority and rights “in the discharge of his functions of preserving, safeguarding, and operating the property and business of the succession.”

When Louisiana law did not expressly authorize a provisional administrator, the court out of necessity accepted the judicial creation but limited its function: “under such an appointment the appointee would be rather a guardian or a keeper than an administrator.” Succession of Clark, 1878, 30 La.Ann. 801, 806. See also Succession of Franz, La.App. 4 Cir. 1961, 133 So.2d 140, 143-144 (rev’d in other part, 242 La. 875, 139 So.2d 216). C.C.P. 3111 and 3112 provide a similar limitation by their wording. A provisional administrator does not have all the authority and duties of an administrator or executor, but only those appropriate to preserving, safeguarding, and operating the succession property.

A provisional administrator must be enabled to sell perishable goods, but not, ordinarily, to sell nonperishables. One might suppose that the order authorizing sale of all the contents of the house was simply an unintended overstatement of desired authority to sell some things in the nature of perishables. If that be the case, the order can simply be amended. But if, as petitioners allege in their application, respondent provisional administrators exercise their trust not merely beyond its statutory limit but for the purpose of favoring relatives and friends, that is cause for removing the provisional administrators. Petitioners should be allowed to amend their petition to so allege.

Amended to order amendment within delay to be fixed by the trial judge.


author: KLEES, Judge.

text:
    Mrs. Margaret Brauer EMERY v. Harry R. CABRAL, Jr.
    No. 11911.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 2, 1981.
    Rehearing Denied July 13, 1981.

      Harry R. Cabral, Jr., in pro. per., Garland R. Rolling, Michael Baham, Metairie, for defendant-appellee.
    Donelon, Cannella & Donelon, James L. Cannella, Metairie, for plaintiff-appellant.
    Before SCHOTT, KLIEBERT and KLEES, JJ.
   KLEES, Judge.

Plaintiff, Mrs. Margaret Brauer Emery, brought this suit against defendant Harry R. Cabral, Jr., to seek payment on a promissory note dated May 25, 1970, payable to the order of herself in the principal sum of Fifty Thousand ($50,000.00) Dollars, payable on demand, with interest thereon at the rate of seven (7%) per cent per annum from maturity until paid. On August 21, 1979, Plaintiff filed suit on the said note. Defendant filed an Exception of Prescription on the grounds that the note and obligation sued upon had prescribed. The Exception of Prescription was set for hearing, and the matter was submitted based upon two (2) stipulations which were entered into the record on that date. The Trial Court sustained the exception and concluded,

“. . . it is this Court’s opinion that the only evidence worthy of consideration in the instant case is the letter written by the defendant to the plaintiff after the note prescribed. Since the aforementioned jurisprudence, which is on all fours with the instant case, holds, without questions, that mere acknowledgement of a debt is insufficient to interrupt prescription, there will be judgment in favor of defendant maintaining his exception of prescription dismissing plaintiff’s suit at plaintiff’s cost.” (TR19)

Plaintiff Emery has appealed from the dismissal of her suit. Defendant Cabral relied upon LSA C.C. Art. 3540; fixing a five year liberative prescription period for promissory notes. Plaintiff Emery cites LSA C.C. Art. 3520 and bases her argument upon an acknowledgment by defendant sufficient to interrupt prescription.

On appeal, Appellant raised two issues (1) whether the promissory note given by defendant to plaintiff had prescribed and (2) whether the acts or statements set forth in stipulations #1 and #2 have acted to interrupt prescription in any manner.

The Trial Court in this case was presented with two stipulations. Stipulation No. 1, “Sometime between July 21 and July 29, 1974, there was a meeting in the office of Harry R. Cabral, Jr., attended by H. Craig Cabral, Barry Cabral, and possibly Mrs. Margaret B. Emery, at which time there was a discussion of the possibility of swapping the note held by Mrs. Emery for legal services in connection with the Succession of Robert Emery to be performed by Mr. Cabral. Stipulation No. 2 was the placing into evidence a letter dated July 29, 1976, from Harry R. Cabral, Jr., addressed to Mrs. Margaret Emery titled, Re: Succession of Robert Emery, III.

The general rule regarding the burden of proof is that when the plaintiff’s petition shows on its face that the prescriptive period has run, and the plaintiff is contending that there was a suspension or interruption of prescription, the burden is on the plaintiff to prove the suspension or interruption. Cordova v. Hartford Accident and Indemnity Co., 378 So.2d 1088 (La.App. 3rd Cir. 1979); Yarbrough v. Louisiana Cement Company, Inc., 370 So.2d 602 (La.App. 4th Cir. 1979).

Furthermore, the recognition of the mere existence of a disputed claim is not such an acknowledgment within the contemplation of Article 3520 as will effect an interruption of the running of prescription. The acknowledgment must be accompanied by or coupled with a clear declaration of intent to interrupt the prescription then running. Marathon Insurance Co., v. Warner, 244 So.2d 353 (La.App. 2nd Cir. 1971).

LSA C.C. Art. 3520 does not require that such an acknowledgment be in any particular form. It may be made verbally, in writing, by partial payment, by payment of interest, by pledge, or in other ways; and it may be implicit or it may be inferred from the facts or circumstances. Flowers v. U. S. Fidelity and Guaranty Co., 381 So.2d 378 (La.1980) citing Lake Providence Equipment Co. v. Tallulah Prod. Cred., Ass’n, 231 La. 104, 241 So.2d 506 (1970).

This court, in attempting to apply the above enumerated rules, finds, after a consideration of the entire record, that stipulation No. 1 lacks the substance necessary to make a determination whether or not there was an interruption of prescription. It is well settled under LSA C.C.P. Art. 2164, that a case may be remanded for introduction of further evidence if grave injustice might result from failure to do so. State, through Department of Highways v. Freyer, 129 So.2d 114 (La.App.2nd Cir. 1961), Hamilton v. Hamilton, 258 So.2d 661, (La.App. 3rd Cir. 1972).

For the foregoing reasons, the judgment of the Trial Court herein sustaining defendant’s exception of prescription is set aside, and the matter is remanded for further proceedings to take additional evidence in regards to stipulation No. 1. Costs of trial of the exception and this appeal are taxed in the proportions of one-half (V2) to each party, other costs to await final disposition.

SET ASIDE AND REMANDED.


author: SAMUEL, Judge.

text:
    Navarre Scott TRAYLOR, Sr. v. SHELL OIL COMPANY, et al.
    No. 11813.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 3, 1981.

      George & George, Vincent J. DeSalvo, Baton Rouge, for plaintiff-appellant.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, James L. Selman, II, New Orleans, for defendants-appellees.
    Porteous, Toledano, Hainkel & Johnson, John J. Hainkel, Jr., New Orleans, for Delta Field Erection, Inc.
    Stanley E. Loeb, New Orleans, for Henry Miller.
    Before SAMUEL, GARRISON and BAILES, JJ.
   SAMUEL, Judge.

Plaintiff, Navarre Scott Traylor, Sr., filed suit against Shell Oil Company, Delta Field Erection, Inc., Travelers Insurance Company (Shell’s liability insurer), Jim Ramsey, Timmy Frilow, Norman James Hymel, and Hubert Miller, seeking damages for bodily injuries sustained as a result of an accident in which he was involved while working in the course and scope of his employment with Payne & Keller, Inc. on the premises of the Shell Oil Company refinery in Norco, Louisiana. The individual defendants are alleged to be executive employees of Shell Oil, and plaintiff asserts they were guilty of various acts of negligence which caused or contributed to his accident.

Thereafter, a motion for summary judgment was filed on behalf of Shell Oil and Travelers in which they maintained that at the time of plaintiff’s accident, Payne & Keller, Inc., plaintiff’s employer, was performing certain maintenance and repair work at the Norco refinery, which work was a part of the trade, business and occupation of Shell Oil so that plaintiff’s exclusive remedy against Shell Oil and Travelers was under the Louisiana Workmen’s Compensation Act, and particularly the “statutory employer” provisions of R.S. 23:1061. At the same time exceptions of prescription of one year were filed on behalf of the individual defendants, Ramsey, Frilow, Hy-mel, and Miller, on the ground that none of them had been sued in any capacity in any proceeding in any court of competent jurisdiction within a year of plaintiff’s accident on August 14, 1973.

The trial court rendered judgment maintaining the motion for summary judgment by Shell Oil as well as the exception of prescription by the individual defendants. Apparently through inadvertence, Travelers was not included in the summary judgment even though it was a mover along with its insured, Shell Oil. Plaintiff has appealed.

In this suit plaintiff’s argument regarding the summary judgment is based on three grounds. First, he contends Shell Oil by contract required his employer, Payne & Keller, Inc., to obtain workmen’s compensation insurance, the effect of which was to relieve Shell Oil of any responsibility imposed under the Louisiana Workmen’s Compensation Act as a “principal” in respect to any injury suffered by an employee of Payne & Keller, Inc. while working on the job covered by the contract. Plaintiff argues that because Shell Oil no longer has any compensation exposure it should not be allowed to escape potential tort liability as a statutory employer of the employees of its contractor, Payne & Keller, Inc. Next, plaintiff argues he was an employee of Payne & Keller, Inc., an independent contractor which had supervision and control over him on the job in question, and he was not a “borrowed servant” of Shell Oil. Third, he argues that, pursuant to the contract between his employer and Shell Oil, the work he was performing was not part of the trade, business, or occupation of Shell Oil because (a) Shell Oil did not have sufficient employees of its own to perform the work being undertaken and (b) the work plaintiff was performing was incidental to Shell Oil’s goal of making larger profits and not an integral part of its trade, business, or occupation. We reject (b) as being completely without merit. Obviously Shell Oil, like other similar corporations, was in the business of making as large a profit as it legitimately could.

In support of plaintiff’s first argument, he cites as authority two concurring opinions, one in Broussard v. Heebe’s Bakery, Inc. emanating from this court, and another in Broussard v. Heebe’s Bakery, Inc., the same case as decided by the Supreme Court of Louisiana.

Plaintiff’s contention that Shell Oil improperly insulated itself from tort liability by requiring plaintiff’s employer to furnish workmen’s compensation insurance has been rejected by prior Louisiana jurisprudence. It should be noted the purpose of imposing compensation liability upon a principal to the employees of his independent contractor is to prevent principals from allowing improperly capitalized subcontractors to perform their essential activities in order to exculpate themselves from compensation liability. The compensation statute specifically prohibits a contract or other device which operates to relieve in whole or in part any employer, whether regular or statutory, from liability under the act.

In this regard Shell Oil points out that plaintiff had the option to reject the benefits of the compensation act, and thus provide himself with the right to bring a tort action for any damages suffered in the course of his employment against his regular or statutory employer. The record shows no such election.

In Brown v. Kaiser Aluminum and Chemical Corp., the court disposed of plaintiff’s first argument as follows:

“We likewise find no merit to plaintiff’s alternative contention that Kaiser should be deprived of its immunity from tort liability by virtue of its established status as a statutory employer because of its having required its independent contractor to pay for workmen’s compensation insurance. Kaiser would be entitled to indemnity from its independent contractor for any compensation which it might be required to pay as statutory employer under LSA-R.S. 23:1061, and the fact that it required its independent contractor to insure such indemnification in no way supports a judicial deprivation of its immunity from tort liability as a statutory employer.”

In this connection, plaintiff’s reliance on the Broussard cases is misplaced. This court did not clearly consider the issue now raised. However, the majority of the Supreme Court did so as follows:

“In this Court plaintiff contends, as he did below, that the appellate court erred (1) in finding the relationship between Heebe and Wolf was that of principal-contractor, instead of vendor-vendee, and that (2) in any case, it makes no difference whether a principal-contractor relationship actually existed as it was not the intent of the legislature in adopting R.S. 23:1061 ‘to prevent injured employees of a contractor from recovering in tort against a negligent principal.’
We consider these assignments of error in reverse order because, if the postulation of plaintiff, joined by amicus curiae, that the injured employee of the contractor has two causes of action against the principal (one for compensation and the other for tort) is sound, then the much debated question as to legal relationship (principal-contractor or vendor-vendee) is immaterial and moot. However, we reject this argument, for this Court has decided on more than one occasion that the remedy afforded by R.S. 23:1061 to the employee of the sub-contractor against the principal is exclusive and has the effect of conferring tort immunity on the principal. See, Thibodaux v. Sun Oil Co., 218 La. 453, 49 So.2d 852 (1950); Benoit v. Hunt Tool Co., 219 La. 380, 53 So.2d 137 (1951); and Coal Operators Casualty Co. v. Fidelity & Casualty Co., 223 La. 794, 66 So.2d 852 (1953).
In Benoit v. Hunt Tool Co., supra, the Court said: ‘Under the Workmen’s Compensation Act and the jurisprudence of this state, the exclusive remedy of the employees of the contractor against the principal, as these two terms are used in the act, is for workmen’s compensation, and there is no remedy in tort against the principal, as the principal is not a third person under the provisions of Section 7 of the act. Sections 6, 7, and 34, Act 20 of 1914, as amended, LSA-R.S. 23:1061, 23:1101, 23:1032; Thibodaux et al. v. Sun Oil Co. et al., La.App., 40 So.2d 761, affirmed 218 La. 453, 49 So.2d 852. The effect of Section 6 is that the principal shall be considered the employer of the employees of the contractor, in contemplation of the statute, so that such employees shall have the right to demand compensation from the principal, and this is their exclusive remedy, and the principal cannot be held liable to the employees of the contractor in tort.’
In view of our settled jurisprudence, the contention of plaintiff is one which addresses itself more properly to the legislature. That body has met time and time again and is presumed to be aware of our rulings. Yet it has not seen fit to amend the statute to conform to the views and contentions advanced by the plaintiff and amicus curiae.” (Broussard v. Heebe’s Bakery, Inc., 268 So.2d 657, 658).

Considering the above jurisprudence, we conclude the compensation remedy afforded by R.S. 23:1061 of the Louisiana Compensation Statute to this employee of a contractor against the latter’s principal is the employee’s exclusive remedy, thus conferring tort immunity to the principal regardless of the fact that Shell Oil required plaintiff’s employer, Shell’s contractor, to obtain workmen’s compensation insurance.

Plaintiff’s second argument, that he was not the “borrowed employee” of Shell Oil is conceded in brief by Shell Oil, and no discussion is needed. Shell Oil and Travelers contend plaintiff is a “statutory employee” and not a “borrowed employee” of Shell Oil. Revised Statute 23:1061 does not require a principal to exercise any degree of control or supervision over the employees of his contractors.

Plaintiff’s third argument is that the work done by him in the course of his employment for Payne & Keller, Inc. was not part of the trade, business, and occupation of Shell Oil. Plaintiff describes his work as “maintenance and repair work” and this appears to be exactly what Shell Oil contends he performed at the Norco refinery.

In support of their motion for summary judgment, Shell Oil and Travelers furnished the affidavit of Richard M. Bosse, superintendent of operations at the Norco refinery. This affidavit establishes that: The services of Payne & Keller, Inc. were obtained to provide a supplemental labor force to carry out certain maintenance and repair work at the Norco plant; the work performed by plaintiff at the time of his accident (the inspection of the inside of a fluid catalytic cracking unit) was part of the maintenance and repair work which Payne & Keller, Inc. contracted to perform; plaintiff’s inspection work and the maintenance and repair of the cracking unit were ordinary and usual maintenance; maintenance of the facilities of an integrated petroleum refinery is necessary to its continuity of operations; Shell Oil has often assigned its own employees to perform maintenance work; Shell Oil frequently has contracted with third parties to carry out maintenance work; and in 1973, the year of plaintiff’s accident, the expense incurred by Shell Oil for maintenance of its Norco refinery was divided between its own employees and outside contractors at an approximate 50% basis.

Plaintiff did not present any contravening evidence or documentation to dispute any of the facts contained in the Bosse affidavit. Plaintiff contends that the trade, business and occupation of a company is a matter of fact for determination by the trial judge. However, plaintiff does not attempt to establish an issue of fact by filing contravening documents. The Code of Civil Procedure clearly provides that a person against whom a motion for summary judgment is filed may not rely on his pleadings but must establish by affidavit or other evidence that a genuine issue of fact exists. In the present case we must accept the affidavit furnished by Shell Oil and Travelers as true.

Numerous cases in Louisiana involving the petroleum and refining industry demonstrate that oil companies routinely contract for various types of work to be carried out by third party contractors, and these forms of work have been held to be part of the usual trade, business, and occupation of the oil producers and refiners. In Thibodaux v. Sun Oil Co., an employee of one independent contractor was killed and an employee of another independent contractor was injured when an oil derrick belonging to Sun Oil Company, the defendant, collapsed. At the time of the accident both men were performing work on the well under the supervision of the employee who was injured. The trial court dismissed the tort suit on exceptions of no right or cause of action filed by Sun Oil Company, exceptions based on R.S. 23:1061 and the exclusive remedy provisions of the compensation statute. The Supreme Court affirmed and stated:

“Here the Sun Oil Company is engaged in the business of exploring for and producing oil. The drilling of wells, the reworking, if necessary, and the ‘fishing out’ of well tools and implements which become stuck in the course of drilling the well are all interrelated and component parts, though different phases, of oil production. In other, words, both Thibodaux and Baker were performing services in connection with work which was part of the business, trade and occupation of Sun Oil Company, or so closely related thereto as to become an integral part thereof. Therefore, the allegations of fact in the instant case clearly bring the matter within the rule of law provided in Section 6, Par. 1 of the Workmen’s Compensation statute as now written.”

In Doucet v. W.H.C., Inc., an employee of a construction company performing repair work on an oil well owned by Tidewater Oil Company was injured while assisting in the repair of a salt water disposal pump at the well site. Tidewater did not have anyone employed in the area of the well who could perform this work, but it did have two permanent employees capable of such work on its payroll in a town some distance from the well. Because of this distance, it was not economically feasible to send them to the site, although they could have performed the work. Instead, plaintiff’s employer was contracted to perform the work. The court ruled that the repair of a salt water disposal pump at the well site was part of the trade, business and occupation of Tidewater and dismissed plaintiff’s damage suit.

In Kelly v. United States Fid. & Guar. Co., a maintenance contractor’s employee sustained brain damage while performing maintenance or repair work at a chemical plant. While the court stated plaintiff was engaged in regular maintenance, it noted he was in fact performing highly specialized work which the chemical company employees did not have the capacity to perform. The court concluded that irrespective of how specialized the work was, it was nevertheless maintenance and thus part of the trade, business and occupation of a chemical plant.

Finally, we refer to Barnes v. Sun Oil Co., in which the defendant had contracted the plaintiff’s employer to perform maintenance and repair work on glycol units, separators, reboilers, heaters, compressors, pumps and valves, as well as gas-lifts and flow lines at a Sun Oil production facility. Plaintiff was injured while repairing a gas flow line, and defendant did not perform this type of task at the facility with its own employees. The Supreme Court nevertheless concluded the work performed by plaintiff, in the course and scope of his employment with Sun’s subcontractor, was part of Sun’s regular trade, business and occupation. The Supreme Court rendered summary judgment in favor of the defendant as follows:

“After reviewing the entire record, however, we conclude that there is no essential dispute as to the fact that maintenance and repair services performed at Sweet Bay Lake by Weco were part of Sun’s ‘trade, business or occupation.’ It is true that Fincher’s affidavit occasionally refers to the services as ‘specialty’ work, whereas Sun’s affidavits characterize it as ‘routine’ maintenance and repair. But it is not disputed that the work consisted of repair and maintenance services performed regularly as an essential and integral part of Sun’s business. The parties agree that Sun does not perform these tasks at Sweet Bay Lake with its own employees. However, this fact alone does not prevent the labor from being part of its regular business. The effect of La.R.S. 28:1061 is that the principal shall be considered the employer of the employees of the contractor engaged in work which is part of the regular business of the principal. Broussard v. Heebe’s Bakery, Inc., 263 La. 561, 268 So.2d 656 (1972). Moreover, the opposing affidavit does not contest the fact that Sun and other oil companies regularly perform the same type work at other facilities as part of their businesses with their own employees.
Accordingly, it appears to be undisputed that the work performed by Weco at Sweet Bay Lake for Sun was part of Sun’s ‘trade, business or occupation.’ Under these circumstances, the mover was entitled to judgment as a matter of law, and the summary motion was correctly granted. Mashburn v. Collin, 355 So.2d 879 (La.1977); Cates v. Beauregard Electric Corporation, Inc., 328 So.2d 367 (La.1976).”

The foregoing legal authorities show the trial court did not commit error by granting summary judgment in favor of Shell Oil. At the time of his accident plaintiff was performing his duties as a pipefit-ter inside a catalytic cracking unit at Shell Oil’s refinery. He was performing maintenance and repair work inside the catalytic cracker when he fell approximately 45 feet. The jurisprudence establishes that even if Shell Oil did not maintain employees trained to perform the functions carried out by plaintiff and his employer, Payne & Keller, Inc., nevertheless maintenance and repair work in the form of repairing a catalytic cracker at an oil company’s refinery is work within the trade, business, and occupation of the defendant. As there is no contradiction of Shell Oil’s affidavit, we hold Shell Oil was entitled to a summary judgment.

Plaintiff did not brief the question presented by the maintaining of the exception of prescription filed by the individual defendants. Consequently, we assume he has abandoned that argument. Nevertheless, we point to the case of Favors v. Southern Industries, Inc.

In the Favors case, a wrongful death suit was brought on February 13, 1976 against four corporate defendants, four nominally named executive officers, and four nominally named liability insurers of these officers. Those so nominally named were simply referred to as John Doe, etc. and XYZ Insurance Company, etc. The corporate defendants were dismissed on a peremptory exception on April 14, 1976 on the ground that plaintiff’s Sole remedy against them was for workmen’s compensation. Thereafter, more than a year from the date of the accident, plaintiffs amended their suit to name Travelers Insurance Company as the insurer of the executive officers. On May 10,1976 the correct names of the four executive officers were stated in a second amended petition. Travelers then filed an exception of prescription, which was maintained by the trial judge. The court of appeal affirmed. The court stated the amendments bringing in Travelers and the executive officers were filed after the one year prescriptive period had run, and concluded that prescription as to the unnamed defendants was not interrupted by the filing of the original suit, since they were not named as defendants nor was there a soli-dary obligation with any named defendant who was timely sued.

In the present case, the individual defendants were not sued in any proceeding within a year of the accident in suit. Plaintiff filed an earlier suit in federal court against Shell Oil Company alone. Two amendments also were filed, but only the original suit was filed within one year of the accident. None of the individual defendants in this suit were named in the federal proceeding. Shell Oil and Travelers were dismissed from the federal suit by summary judgment. Thus, the individual defendants were not sued within one year of plaintiff’s accident, and the only action timely instituted by plaintiff were the one against Shell Oil, which was ultimately dismissed on the basis that it was immune to a tort suit. As Shell Oil and the individual were not solidarily liable, and as those individual defendants were not sued within one year of the accident, the trial court was correct in maintaining their exception of prescription and dismissing the suit as to them.

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

AFFIRMED.

      . In the same judgment an exception of prescription filed on behalf of Delta Field Erection, Inc. and Henry Miller, defendants, also was maintained. However, this portion of the judgment is not before us on appeal.

      . This is the “statutory employer” defense provided by R.S. 23:1061 which reads as follows:
      “Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business, or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Chapter reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed.
      Where the principal is liable to pay compensation under this Section, he shall be entitled to indemnity from any person who independently of this Section would have been liable to pay compensation to the employee or his dependent, and shall have a cause of action therefor.”

      .La.App., 254 So.2d 284.

      . 263 La. 561, 268 So.2d 656.

      . See Meche v. Farmers Drier & Storage Company, La.App., 193 So.2d 807.

      . See LSA-R.S. 23:1033.

      .LSA-R.S. 23:1039 and 23:1040.

      . La.App., 289 So.2d 524.

      . La.App., 289 So.2d 525, at p. 527; see also Ryland v. Insurance Company of North America, La.App., 255 So.2d 221.

      . Lushute v. Diesi, La., 354 So.2d 179.

      . LSA-C.C.P. Art. 967.

      . 218 La. 453. 49 So.2d 852.

      . La.App., 212 So.2d 267.

      . La.App., 353 So.2d 349.

      . La.. 362 So.2d 761. 764. 765.

      . La.App., 344 So.2d 693.


text:
    Constantina Sanchez, wife of/and Alejandro SANCHEZ v. Daniel A. LeBLANC and State Farm Mutual Automobile Insurance Company.
    No. 11862.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 3, 1981.
    Writ Denied July 2, 1981.

      Raymond A. Milly, Metairie, for plaintiffs-appellants.
    Lobman & Carnahan, Burt K. Carnahan, Metairie, for defendants-appellees.
    Before SAMUEL, GARRISON and BAILES, JJ.
   SAMUEL, Judge.

Plaintiffs, Alejandro Sanchez and his wife, Constantina Sanchez, filed this suit against Daniel A. LeBlanc and his insurer, State Farm Mutual Automobile Insurance Company, seeking damages arising out of a rear end collision in which defendant’s vehicle struck an automobile driven by Mrs. Sanchez. Defendants answered, denying liability.

The case was tried by a jury, which returned a verdict in favor of plaintiffs for $1,000. Their verdict was made a judgment of the court, and plaintiffs have appealed. In this court defendants contend the judgment should be affirmed.

On June 23, 1978, Mrs. Sanchez stopped her vehicle in the right east-bound lane of U.S. Highway 90-B at its intersection with Terry Parkway, in Jefferson Parish, Louisiana. Defendant, Daniel A. LeBlanc, drove a 1976 Ford pickup truck into the rear of plaintiffs’ vehicle. Mrs. Sanchez was taken by ambulance to Charity Hospital in New Orleans, x-rayed, examined by a physician, and released on an out-patient basis.

On June 8, 1978, approximately two weeks prior to the accident in suit, Mrs. Sanchez had injured her back at work at the Royal Sonesta Hotel in New Orleans. She was taken to Southern Baptist Hospital and released. She was then referred by the hotel to Dr. Manny Paine for treatment of her back injuries.

After her release from Charity Hospital on June 23,1978 (the date of the accident in suit), she went to Dr. Paine’s physical therapist for treatment, and on June 27,1978 she was examined by Dr. Paine’s partner. On neither of these occasions did she mention the accident of June 23, 1978.

On July 5, 1978, Mrs. Sanchez began treatment by Dr. Mark Juneau, an orthopedist. She told Dr. Juneau about the June 8, 1978 accident at the Royal Sonesta and the automobile accident of June 23, 1978. He felt she had suffered a hyperextensive injury to her cervical spine and a ligamentous injury to her lumbosacral spine. However, he stated that he could not determine which of these injuries were responsible for her subsequent complaints, because both were so similar.

Dr. Juneau did not discover objective symptoms, and on August 4, 1978 Mrs. Sanchez informed him she was free from pain. On that date he discharged her.

In September, 1978 Mrs. Sanchez began treatment by Dr. Dorsey Dysart. She did not tell Dr. Dysart of the June 8, 1978 accident at her employment, but only reported the automobile accident of June 23, 1978. Dr. Dysart found subjective complaints of tenderness in the lower back, but found no objective symptoms. He reached the conclusion she had suffered a soft-tissue injury, and found she had rapidly improved by her second visit in October, 1978. She did not return to Dr. Dysart until July 5, 1979, approximately nine months later. At that time she had complaints of mild pain. In the meantime, she had delivered a child, and Dr. Dysart again found no objective symptoms. He felt her earlier lumbosacral condition had dissipated itself.

Dr. Dysart never discovered any objective findings. Moreover, he testified Mrs. Sanchez had failed to advise him of the June 8, 1978 accident at the hotel which had resulted in injury to her back. When advised of this injury at the trial, he stated he could not tell which of the two injuries caused her subjective complaints.

The only physician who believed anything was substantially wrong with Mrs. Sanchez was Dr. Rayburn Llewellyn, who saw plaintiff for the first time in October of 1979, more than sixteen months after both of the injuries discussed herein. At the time of trial he had seen her on three separate occasions and recommended hospitalization for further testing. However, she did not tell him of the incident at the hotel on June 8,1978. When Dr. Llewellyn was informed of this earlier injury he likewise stated he could not testify with medical certainty whether the June 8, 1978 hotel accident or the rear end collision of June 23, 1978 was responsible for the complaints.

Finally, Dr. James Williams was called as an expert witness in the field of orthopedic surgery on behalf of defendants. Dr. Williams testified he saw Mrs. Sanchez on November 13, 1978 and on December 20, 1979. On neither of these occasions did she demonstrate any objective evidence of injury, and Dr. Williams offered no reasonable medical explanation for her various subjective complaints of back pain.

Plaintiffs argue the jury committed error in failing to award $9,546.14 in special damages which they assert were “uncontra-dicted.” However, viewing the matter objectively, the only “uncontradicted” special damages involved in the case was the sum of $41 charged by Charity Hospital for treatment rendered plaintiff on June 23, 1978 following the rear end collision. With regard to the other items of special damages, there was ample evidence submitted to the jury which could have led to their conclusion that the special damages requested by plaintiffs were not caused by the accident of June 23, 1978.

The matter is made more difficult because the jury was provided with only a general jury verdict form, under which it awarded a lump sum including both general and special damages. In Hood v. State Farm Mut. Auto. Ins. Co., it was observed that a plaintiff has a greater than normal burden of showing abuse of discretion by the jury when it returns an unitemized general verdict because the jury’s intention regarding a specific amount for any particular item of damages is not readily ascertainable.

The findings of the trier of fact are entitled to much discretion, and must be left undisturbed on appeal unless it clearly abused that discretion. Here, Dr. Juneau, the only physician who was told of both injuries, testified he could not ascertain which of the injuries resulted in Mrs. Sanchez’s discomfort, or whether both of them in some combination had this effect on her, because of their close proximity in time. However, Dr. Juneau did testify that whatever the cause, her injuries were quite minor, she had no objective symptoms, her prognosis was good, and she suffered no permanent physical disability.

Moreover, Dr. Juneau, Dr. Dysart and Dr. Williams failed to find any objective symptoms. These three doctors, together with Dr. Llewellyn, were unable to determine whether the injury of June 8 or June 23, 1978 caused the complaints. Equally important, the jury had before it the question of Mrs. Sanchez’s credibility especially as raised by her failure to mention the June 8 accident to Dr. Dysart or Dr. Llewellyn, and her failure to mention that accident to Dr. Paine’s therapist or to his partner.

Under these circumstances, there is no basis for us to disturb the finding of fact or the award of damages. The jury must have found the rear end collision of June 28, 1978 caused some discomfort, but that such discomfort was minimal. Consequently, their award of $1,000 will not be disturbed.

Finally, plaintiffs argue the jury was improperly influenced by a portion of the closing argument on behalf of defense counsel. Defense counsel argued that an award to plaintiffs would have the effect of increasing insurance premiums generally. This type argument has not been held sufficient to reverse a decision particularly where, as in the present case, the jury was admonished to ignore any incorrect remarks. When the remarks were made in this case the trial judge immediately interrupted, informed the jury no evidence had been offered regarding insurance premiums, and ordered the jury not to consider the remarks. We consequently conclude the jury made no error of fact and the trial judge committed no error of law in the case now on appeal.

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

AFFIRMED.

      . La.App., 376 So.2d 328.

      . Arceneaux v. Domingue, La., 365 So.2d 1330; Canter v. Koehring Company, La., 283 So.2d 716.

      . See Williams v. Sentry Ins. Co, La.App., 370 So.2d 901.

      . Callahan v. Town of Bunkie, La.App., 287 So.2d 629.


text:
    Lottie DOUGLAS v. NEW ORLEANS MUSEUM OF ART.
    No. 11865.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 3, 1981.

      New Orleans Legal Assistance Corp., Frank Pola, Jr., New Orleans, for plaintiff-appellee.
    Salvador Anzelmo, City Atty., and Charles J. Willoughby, Asst. City Atty., New Orleans, for defendant-appellant.
    Before SAMUEL, GARRISON and BAILES, JJ.
   SAMUEL, Judge.

Appellee in this court, Lottie Douglas, was terminated from the New Orleans Museum of Art effective October 28, 1979 for alleged misconduct. She was advised by letter dated October 30, 1979 of her termination and the reason therefor. She appealed her dismissal to the Civil Service Commission, and on May 13, 1980 the Commission reversed her dismissal. The Museum of Art appealed.

The Museum’s termination letter provides in part as follows:

“Your supervisor has reported that on that date you have accepted payment of $18 for three posters from a Museum visitor and failed to turn in or report the money which you received for the sale of this merchandise.
“Such conduct is inexcusable and cannot be accepted from an employee of this Museum.”

The facts behind Douglas’ dismissal are relatively simple. On October 28, 1979 Douglas sold three posters to a Museum visitor for the sum of $18. She did not report the sale on the day it was made, as required in accordance with Museum rules. She further waited eight days to turn the money in to the Museum.

Douglas’ defense is that she did not report the sale on the same day and turned in the money eight days later because the sale took place at the end of a working day and she started her prearranged annual vacation the next day. She testified at the Commission hearing that the money remained in her locker at the Museum for the eight days of her absence. The Commission found she did not report the presence of the money to her employer until her return to work.

In its decision the Commission made the following conclusion:

“It is the opinion of this Commission that a reasonable doubt exists as to the city proving that the Appellant actually intended to steal said money in question and in view of a need for additional facts, the Commission concludes that the dismissal be reversed and the appeal upheld.” (Emphasis added)

The City points to the italicized portion'of the Commission’s conclusion and argues the Commission committed error by applying the reasonable doubt standard of proof rather than the preponderance of evidence standard. Both the City and Douglas agree to the correctness of the result reached in Herbert v. Department of Police , that because Civil Service hearings are not criminal proceedings the burden of proof as to facts need not be established beyond a reasonable doubt, but need only be proved by a preponderance of the evidence. The City argues that the Commission’s statement that a “reasonable doubt” existed demonstrates the Commission applied the wrong burden of proof in a civil proceeding.

We do not agree with this argument. A fair reading of the opinion of the Commission shows, in our opinion, its use of the words “reasonable doubt” in the quoted portion of its opinion was not intended to be technically correct in the legal sense of the words, but instead merely means the City did not prove its case. The quoted portion of the Commission’s holding adverts to a need for “additional facts” by the City to prove Douglas intended to steal the $18 in question.

The burden of proof of the facts indicating cause for dismissal is upon the appointing authority. Burden of proof, however, is only by a preponderance of the evidence; it is not beyond a reasonable doubt as in criminal cases. In the present proceeding, the Commission clearly held the appointing authority did not bear its burden of proving the charges upon which Douglas’ dismissal was based. There is nothing in the record to justify a reversal^ of the Commission’s findings, and we are satisfied the City failed to prove its case by a preponderance of the evidence.

The City further refers the court to testimony by Douglas in which she admitted lying about receiving the money to the Museum’s chief of security. In her testimony she candidly admitted the lie, but expressed the opinion she was under no obligation to report everything to him because she occupied the position of a “Supervisor”.

We are not able to consider this testimony sufficient to reverse the Commission’s holding. The termination letter furnished Douglas gave the reason for her dismissal as “failure to turn in or report the money which you received . . . . ” In Warrendorff v. Dept. of Saftey — Fire Division, the court said:

“Civil Service Rule 12.3 states in case of removal demotion or reduction in pay for cause of a permanent employee the appointing authority must furnish certain written reasons for the action taken. Shelfo v. LHHRA, Pinecrest State School, supra. The purpose of the requirement is to apprise the employee in detail and to limit any subsequent proceeding to the stated ground. Lemoine v. Dept. of Police, 348 So.2d 1281 (La.App. 4th Cir. 1977); and Paulin v. Department of Safety and Permits, 308 So.2d 817 (La.App. 4th Cir. 1975).”

On appeal, the appointing authority argues for the first time that Douglas was disciplined for receiving money on behalf of the Museum and denying its receipt upon questioning by its chief of security. Since the question of Douglas’ lying to the chief of security was not stated as a ground of dismissal in her termination letter, such argument cannot be raised for the first time on appeal.

For the reasons assigned the judgment appealed from is affirmed.

AFFIRMED.

      . La.App., 362 So.2d 1190.

      . Louisiana Constitution of 1974, Art. 10, § 8 (A); see also Michel v. Dept. of Publ. Saf. Al. Bev. Com. Bd., La.App., 341 So.2d 1161.

      . La.App., 378 So.2d 534.


text:
    James ROBERTS v. Courtney L. RUSSO, M. D., et al.
    No. 12171.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 3, 1981.

      H. Martin Hunley, Jr., and Lynne W. Wasserman, New Orleans, for relator.
    Carl J. Schumacher, Jr., New Orleans, for respondent.
    Before SAMUEL, REDMANN and BOU-TALL, JJ.
   SAMUEL, Judge.

Plaintiff’s petition alleges: He underwent two surgical procedures as a result of a back injury. The first, a lumbar laminec-tomy, was performed by the defendant, Dr. Courtney L. Russo, on April 29, 1977. The second, a hemilaminectomy, was performed by the other individual defendant, Dr. Michael E. Carey, on November 2, 1977. Dr. Russo assisted Dr. Carey in the second operation. Dr. Russo was negligent in the first operation and both surgeons were negligent in the second.

The petition seeks an in solido recovery against the two surgeons and Dr. Russo’s professional liability insurer for injuries claimed to have been incurred by plaintiff as a result of the alleged negligence of both individual defendants.

Based on the fact that he was a qualified health provider under the provisions of the Louisiana Medical Malpractice Act of 1975, and had not been afforded his right to a medical panel review as provided by that statute, Dr. Russo filed an exception of prematurity to plaintiff’s petition. The other individual defendant, Dr. Carey, was not covered by the statute. Plaintiff does allege he did file a request for a medical panel review and, although no proof has been offered showing that such a request actually was filed, relator concedes in brief that such a request was filed by the plaintiff on the day the suit was filed. However, it is clear that no opinion has been rendered by a panel.

Following a hearing thereon, the trial court dismissed the exception of prematurity, Dr. Russo then applied to this court for writs from that dismissal, and we granted certiorari.

In his reasons for judgment, the trial court stated the exception should be dismissed for two reasons: (1) As Dr. Carey was an indispensable party to the action, to delay the matter until a medical panel could be selected and make its determination would amount to a miscarriage of justice; and (2) the Medical Malpractice Act is special legislation (“special” as “specific” or “particular” rather than in the constitutional sense of “special law” under Article 3, Section 12 of the 1974 Constitution), which cannot be reconciled with the general law as set forth in the Code of Civil Procedure, and under these circumstances the general law prevails. We do not agree with either ground for dismissal.

Regarding the first ground, the fact that the defendants, one or all three of them, may be indispensable parties plays no part in a consideration of the exception. If there is any liability on the part of the defendants, such liability results from the alleged negligence of the two surgeons and, as the petition correctly alleges, the defendants are solidary obligors. The law does not require that solidary obligors be joined as defendants. The second paragraph of C.C.P. Art. 643 provides:

“One or more solidary obligees may sue to enforce a solidary right, and one or more solidary obligors may be sued to enforce a solidary obligation, without the necessity of joining all others in the action.” (Emphasis ours.)

Insofar as the second ground for dismissal is concerned, we do not find that the Medical Malpractice Act is inconsistent or in conflict with the Code of Civil Procedure. However, even if it were, the Malpractice Act, which is both more recent and specifically directed toward a particular subject, must prevail. Our jurisprudence is that where there is an irreconcilable inconsistency or conflict between a generalized law and a law specifically directed toward a particular subject, the specific law must be followed. As the court said in State ex rel. v. Bickman v. Dees, at page 291:

“Rules of statutory construction provide that where two statutes deal with the same subject matter, they should be harmonized if possible, but that if there is a conflict the statute specifically directed to the matter at issue must prevail as an exception to the statute more general in character.”

The dilatory exception of prematurity is proper, it must be maintained, and plaintiff’s suit must be dismissed as to the defendant, Russo.

For the reasons assigned, the writ sought by relator is made peremptory, the judgment therein complained of is reversed, the exception of prematurity is maintained, and plaintiff’s suit as against Courtney L. Russo, M. D., is dismissed at plaintiff’s cost in both courts.

REVERSED.

      . LSA-R.S. 40:1299.41, et seq.

      . LSA-R.S. 40:1299.47 A, in pertinent part, and LSA-R.S. 40:1299.47 B read:
      “A. All malpractice claims against health care providers covered by this Part, other than claims validly agreed for submission to a lawfully binding arbitration procedure, shall be reviewed by a medical review panel established as hereinafter provided in this Section.”
      “B. No action against a health care provider covered by this Part, or his insurer, may be commenced in any court of this state before the claimant’s proposed complaint has been presented to a medical review panel established pursuant to this Section and an opinion is rendered by the panel. By agreement of both parties, the use of the medical review panel may be waived.”

      . LSA-C.C. Arts. 2091 and 2324; Ferguson v. Lankford, La., 374 So.2d 1205; Reeves v. Louisiana and Arkansas Railway Company, La., 282 So.2d 503; Jones v. Maestri, 170 La. 290, 127 So. 631; Dixie Drive It Yourslf Sys. v. American Beverage Co., 242 La. 471, 137 So.2d 298.

        . Inabinet v. State Farm Automobile Insurance Co., La.App., 262 So.2d 920.

      . State ex rel. Bickman v. Dees, La., 367 So.2d 283, and cases cited therein.

      . Footnote 5 supra.

      . LSA-R.S. 40:1299.47 B; LSA-C.C.P. Arts. 926, 933; Everett v. Goldman, La., 359 So.2d 1256;. Desselles v. Brumfield, La.App., 386 So.2d 191; Travasos v. New Orleans Metairie Hospital, La.App., 381 So.2d 877; Chivleatto v. Divinity, La.App., 379 So.2d 784; Knepper v. State, Dept. of Health & Hum. Res. Admin., La.App., 359 So.2d 1127.


author: BOUTALL, Judge.

text:
    Glenn D. TEEL v. Mrs. Bobbie L. TEEL and James R. Pertuit.
    No. 12403.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 3, 1981.
    James R. Pertuit, New Orleans, for relator.
    Patrick C. Leitz, Metairie, for respondent.
    Before REDMANN and BOUTALL, JJ., and STOULIG, Pro Tern.
   BOUTALL, Judge.

On the application of James R. Pertuit, Attorney at Law representing Mrs. Bobbie L. Teel, invoking the supervisory jurisdiction of this court in order to examine into the correctness of a judgment requiring his withdrawal from representation of Mrs. Teel, we issued a writ of certiorari to review the ruling complained of.

The procedural situation is this. Glenn D. Teel filed a proceeding against his wife, Mrs. Bobbie L. Teel for a separation a men-sa et thoro, had a curator ad hoc appointed to represent her as an absentee defendant, and subsequently was awarded judgment of separation. Over one year later, Teel filed a petition for divorce and again had a curator ad hoc appointed. The curator has answered in the record. Subsequent to the curator’s answer a pleading entitled “Answer and Petition for Injunctive Relief” was filed by Mrs. Teel through her attorney James R. Pertuit. That pleading admitted the pertinent facts in the divorce petition which would support a judgment of divorce, but pointed out that Teel had not prosecuted a partition of the community property, and sought to obtain such relief by (1) requiring an inventory be taken; (2) obtaining an injunction to prevent Teel from disposing or alienating any community property; and (3) an injunction prohibiting Teel from threatening or in anywise molesting his wife. Teel then filed a motion to recuse James R. Pertuit as attorney for Mrs. Teel, contending that Pertuit had represented him both personally and through his corporation over a period of eight years. He asserts that the attorney had gained intimate knowledge of all of his affairs and confidential knowledge, that the disclosure of such knowledge would violate the confidential relationship between attorney and client, and additionally that Pertuit, still representing him in several law suits, cannot represent a party with differing interests.

We issued the writ of certiorari based upon allegations of the attorney that he had been prevented from testifying at the hearing on the motion to recuse, and could not thus adequately show a defense to the allegations. Although we still adhere to the principle that the attorney should be permitted to defend himself, under the facts and circumstances of this case we see no possibility that a successful defense could be made. We point out for example, that Teel testified that he had attempted to get legal advice from Pertuit on a number of occasions concerning his matrimonial difficulties, and that he had sought to get Per-tuit to represent him in court in bringing suit. He testified that Pertuit had refused to represent him in court because he was too involved with both husband and wife to bring such a suit. If this were the sole problem, we would unhesitatingly grant Pertuit the right to defend against these allegations. But the main contention between these parties is not the divorce, it is the partition of community property. It is obvious on the face of the record that the largest portion of the community assets will consist of the ownership of stock in Teel’s corporation, Building Engineering Services Company, Inc., that corporation’s law suits for damages, and Teel’s law suit against the corporation for salary and damages to him. Pertuit was the attorney for the corporation during its existence and is the attorney of record in the pending law suits. Some of the allegations made in Mrs. Teel’s pleadings (Article VII) are that her interest in the community property has been diminished by the fraud, fault, neglect or incompetence of Teel.

The trial judge, who apparently had several conferences between the attorneys during the course of the proceedings, ruled that the evidence was so overwhelming that he concluded no further evidence need be considered. We note that on several occasions, he intervened in the proceedings to prevent the attorney from disclosing privileged and confidential information. Under the state of the record presented to us, we can conceive no evidence that could be produced which could overcome that which is so apparent. The trial judge relied upon the principles announced in the case of Brasseaux v. Girouard, 214 So.2d 401 (La.App. 3rd Cir. 1968), and so do we.

We refer to the canons of ethics controlling the professional responsibilities of attorneys at law published in the Articles of Incorporation of The Louisiana State Bar Association, LSA-R.S. 37, Chapter 4. Canon 4 requires that “a lawyer should preserve the confidences and secrets of a client” and Canon 5 that “a lawyer should exercise independent professional judgment on behalf of a client.” Under these two Canons the ethical considerations and disciplinary rules make it clear that this attorney should be required to withdraw from employment. Under Canon 4 we refer to EC 4-1 and DR 4-101; under Canon 5 we refer to EC 5-1 and 5-2 and DR 5-105.

Accordingly, we are of the opinion that the ruling of the trial judge requiring James R. Pertuit to withdraw from representation as attorney for Mrs. Bobbie L. Teel is correct, and we affirm.

AFFIRMED.