author: BOUTALL, Judge. CHEHARDY, Judge,

text:
    Sidney BAZLEY v. David SILVERMAN, Arthur Lestrick, Herman Romero and Fireman’s Fund Insurance Company.
    No. 10969.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 7, 1981.

      Steven M. Koenig, New Orleans, for plaintiff-appellant Sidney Bazley.
    Beard, Blue, Schmitt, Mathes, Koch & Williams, Melvin W. Mathes, New Orleans, for defendant-appellee Fireman’s Fund Ins. Companies.
    John J. McCann, Co-counsel, McCann & Volk, New Orleans, for plaintiff-appellant The Academy of New Orleans Trial Lawyers.
    Before REDMANN, BOUTALL and CHEHARDY, JJ.
   BOUTALL, Judge.

Sidney Bazley brought suit for personal injuries alleged to occur while in the scope of his employment as a garbage man by Jefferson Parish Sanitation Department when the garbage truck he was working on was struck by another vehicle. He brought suit against David Silverman, Arthur Les-trick, and Herman Romero alleging them to be officers, department heads, management agents and/or directors of Jefferson Parish Sanitation Department, and against Fireman’s Fund Insurance Company, their liability insurer. The suit further alleges that the causes of the accident were the intentional acts and/or the intentional failure to act by the defendants.

Fireman’s Fund filed an exception of no cause of action based upon the premise that it could only be liable if its alleged insured were liable and that the provisions of Louisiana Workmen’s Compensation statute R.S. 23:1032, as amended by Act 147 of 1976, bars this type of suit against them as officers, etc. The trial judge maintained the exception, and plaintiff Bazley has appealed.

The appeal presents two basic issues, 1) whether the statutory restrictions imposed in R.S. 23:1032 are in violation of the constitutions of Louisiana and the United States; 2) whether the petition and supplemental petition constitute a cause of action within the permissive limits of R.S. 23:1032.

The Supreme Court of Louisiana has had occasion to consider these same constitutional issues here presented in a case this same plaintiff had previously filed and appealed Bazley v. Tortorich, 397 So.2d 475 (La.1981). In that case Bazley had sued for the injuries out of that same accident naming as defendants the driver of the other automobile and the driver of the garbage truck (a fellow employee) and his insurer. The decision in that case is binding upon us and we see no necessity to discuss it in detail. The constitutional issues raised are without merit.

The other issue is the legal interpretation of R.S. 23:1032 and a consideration of the allegations of the petition and supplemental petition under that statute.

R.S. 23:1032 reads in pertinent part as follows:

“§ 1032. Exclusiveness of rights and remedies; employer’s liability to prosecution under other laws.
“The rights and remedies herein granted to an employee or his dependents on account of an injury * * * for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee * * * against his employer or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said injury * * *.
“Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner or employee of such employer or principal * *, civil or criminal, resulting from an intentional act.”
******

In Bazley v. Tortorich, supra, the Supreme Court concluded that the words “intentional act” meant the same as “intentional tort” in reference to civil liability. With that interpretation firmly fixed in our minds we proceed to examine the allegations contained in plaintiff’s petition as follows:

“VI.
“At all times pertinent hereto, defendants, DAVID SILVERMAN, ARTHUR LESTRICK and HERMAN ROMERO, officers, department heads, management agents and/or directors of Jefferson Parish Sanitation Department.
VII.
“The causes of the accident were the intentional acts and/or the intentional failure to act by the defendants, DAVID SILVERMAN, ARTHUR LESTRICK, and HERMAN ROMERO.
VIII.
“Defendants, as officers, department heads, managing agents and/or directors, had the duty to provide the employees of Jefferson Parish Sanitation Department with a safe place to perform their work and to protect them from known dangers; such duty required said defendants to take positive steps to provide such safe working places and also to remove hazardous conditions from the premises and from the machinery used to perform their required tasks.
IX.
“The defendants intentionally committed the aforedescribed acts and/or omissions with the active knowledge that in so doing they substantially increased the risk of harm from accident to petitioner. The injuries complained of herein were caused by the said acts and/or omissions of defendants.
X.
“Despite of (sic) the knowledge of such risks and dangers, these defendants failed to take necessary actions to protect the plaintiff against such risks or to eliminate or minimize such dangers.
XI.
“In addition to the foregoing, the intentional acts and/or failures to act by these defendants which caused the aforementioned accident and brought about severe injuries to the plaintiff, include the following nonexclusive particulars:
“A) Operating an unsafe and hazardous garbage truck;
“B) Continuing the operation of the aforesaid garbage truck when the defendants had knowledge that it was unsafe and hazardous;
“C) Failure to provide safe equipment for employees to work with and around;
“D) Operating the said garbage truck in the absence of a working horn;
“E) Failing to provide a proper alarm system for use in emergencies;
“F) Conscious disregard of safe and reasonable mechanical and electrical maintenance standards;
“G) Other acts on the part of defendants which will be shown at the trial of this matter or between now and the trial.”

The supplemental petition adds an additional paragraph alleging:

“XI. (a)
“In the alternative, plaintiff, SIDNEY BAZLEY, pleads the negligence of defendants, DAVID SILVERMAN, ARTHUR LESTRICK and HERMAN ROMERO in the following non-exclusive particulars:
“A) In allowing the operation of an unsafe and hazardous garbage truck;
“B) In the continuation of the operation of the aforesaid garbage truck when the defendants had knowledge that it was unsafe and hazardous;
“C) In failing to provide safe equipment for employees to work with and around;
“D) In allowing the operation of the said garbage truck in the absence of a working horn;
“E) In failing to provide a proper alarm system for use in emergencies;
“F) In the conscious disregard of safe and reasonable mechanical and electrical maintenance standards;
“G) In other acts on the part of defendants which will be shown at the trial of this matter, or between now and the trial.”

After considering these allegations, we cannot conclude that they are such as to form the basis of an intentional tort within the interpretation of R.S. 23:1032, and accordingly the exception of no cause of action was properly maintained.

For the reasons assigned, the judgment appealed is affirmed.

AFFIRMED.

CHEHARDY, Judge,

concurring.

The Supreme Court in Bazley v. Tortorich, 397 So.2d 475, 482 (1981), stated:

“ * * * Several courts of appeal have stated the two prongs of the definition in the conjunctive, thus requiring a plaintiff to prove, in order to recover, that the defendant desired the physical results of his act in every case. Waldrop v. Vistron Corp., 391 So.2d 1274 (La.App.1980); McGuire v. Honeycutt, 387 So.2d 674 (La.App. 3d Cir. 1980); Johnson v. Chicago Mill & Lumber Co., 385 So.2d 878 (La.App. 2d Cir. 1980); Courtney v. BASF Wyandotte Corp., 385 So.2d 391 (La.App. 1st Cir.) writ denied 386 So.2d 359 (1980); Bourgoyne v. City of Baton Rouge, 380 So.2d 131 (La.App. 1st Cir. 1979), cert. denied 382 So.2d 164 (1980); Frazier v. Woodward, 378 So.2d 209 (La.App. 4th Cir. 1979); Johnson v. Narcisse, 373 So.2d 207 (La.App. 4th Cir. 1979); Tobin v. Jacobson, 369 So.2d 1161 (La.App. 1st Cir. 1979); Guidry v. Aetna Casualty & Surety Company, 359 So.2d 637 (La.App. 1st Cir.) writ denied, 362 So.2d 578 (1978). $ >(c $ ÍJ

The court then goes on to state:

“ * * * Intent is not, however, limited to consequences which are desired. If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result. Restatement (Second) of Torts, § 8A, Comment; Prosser, supra, § 8.”

It thus appears that earlier courts of appeal’s interpretation of the meaning of “intent” in LSA-R.S. 23:1032 as amended by Act 147 of 1976 has either been overruled by the Supreme Court in Bazley, supra, or at any rate the meaning has been so broadened as to effectively do away with the earlier definition of the courts of appeal. In doing away with the earlier definition unless we include in the definition “should have known that the result would follow” there exists a distinction without a difference. Why? Under the Supreme Court definition in Bazley one must desire the result or know that the consequences are substantially certain to result. It is imperative that a responsibility be placed on the actor, not simply that he knows the result but that he should have known the result of his action. The “should have known” standard is preferable in that it is an objective standard. The desired or known result standard is subjective and thus the distinction without a difference. Accordingly, I interpret the broadened definition of “intentional” as set forth in Bazley to include the objective “should have known” standard. This thinking would be in line with the view expressed in W. Prosser, The Law of Torts, Ch. 2, § 8 (4th ed. 1971), at 31-32:

“Intent, however, is broader than a desire to bring about physical results. It must extend not only to those consequences which are desired, but also to those which the actor believes are substantially certain to follow from what he does. An anarchist who throws a bomb into the royal carriage may actually wish to kill no one but the king; but since he knows that the death of others in the carriage is a necessary and almost inevitable incident to that end, and nevertheless goes ahead with the deed, it must be said that he intends to kill them. The man who fires a bullet into a dense crowd may fervently pray that he will hit no one, but since he must believe and know that he cannot avoid doing so, he intends it. The practical application of this principle has meant that where a reasonable man in the defendant’s position would believe that a particular result was substantially certain to follow, he will be dealt with by the jury, or even by the court as though he had intended it. The driver who whips up his horses with a loud yell while passing a neighbor’s team will not be credited when he denies that he intended to cause a runaway; and the defendant on a bicycle who rides down a man in full view on a sidewalk where there is ample room to pass may find the court unwilling to accept his statement that he did not mean to do it.”

I concur in the result because the allegations do not satisfy the new definition of “intent” as laid down by Bazley v. Tortorich, supra.


source: Caselaw Access Project

author: SAMUEL, Judge.

license: Public Domain

text:
    Sandra Kole VIOLA, Individually and on Behalf of her Minor Children, Russell VIOLA, Jr., David Viola and Nicole Viola v. ARLEN REALTY CORPORATION and Foremost Insurance Company.
    No. 11270.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 7, 1981.

      Darryl J. Carimi, Gretna, for plaintiffs-appellees.
    Hammett, Leake & Hammett, Eldon T. Harvey, III and J. Gregg Collins, New Orleans, for defendants, third-party plaintiffs and appellants.
    Before SAMUEL, GULOTTA and BOU-TALL, JJ.
   SAMUEL, Judge.

Appearing herein individually and on behalf of her three minor children, plaintiff filed this suit against her landlord and its liability insurer for damages resulting from two fires in her apartment complex. Defendants answered, admitting the fires but denying liability, and filed a third party demand against James W. McCann who allegedly committed arson, which caused the fires.

Following trial, judgment was rendered in favor of plaintiff individually for property damage in the sum of $3,764.62, and mental anguish in the sum of $2,000. The judgment also awards $300 to each of the three minor children. In addition, there was judgment on the third party demand in favor of the original defendants and against McCann in the sum of $3,332.31.

Defendants-third party plaintiffs have appealed. In this court they contend: (1) No award should have been made for damages resulting from the second fire, since it was caused by arson; and (2) the lease absolved the landlord from liability resulting from acts or neglects of co-tenants.

On December 24, and December 29, 1976, fires originating in an empty apartment directly below that of plaintiff damaged plaintiff’s property. The first fire caused soot and smoke damage to plaintiff’s furniture and also to the clothing of plaintiff and her children, and the second fire, which was much more extensive, caused substantial fire and water damage as well. Plaintiff was not present at either fire.

Apartment 157, where the fires originated, had been gutted by the landlord in the process of repairing a broken sewer line. The tenants had moved and mattresses for four beds were stacked in a work area and in a walk-in closet. Carpeting was pulled up and stored, and paint cans and volatile liquids also were stored in the empty apartment.

Testimony relative to the occurrence of the first fire was given by Charles Burn, chief of the Eighth District Fire Department for the City of New Orleans. He arrived at the scene with his men shortly after that fire started. The door to the apartment was locked. The fire originated in the rear bedroom, and Burn, qualified as an expert, felt it had been caused by a carelessly thrown cigarette. Finding numerous cigarette butts on the floor and excessive storage of combustible and volatile materials, he concluded the fire would not have occurred had the materials not been stored in the apartment. He ruled out arson as the cause of this fire. He was not present at the second fire.

Witnesses relative to the occurrence of the second fire were Cheryl Cannon, the resident manager of the apartment complex (who was out of the city during the first fire), James McCann, the alleged arsonist, and Sgt. Ronald McPherson, a criminal investigator for the New Orleans Police Department, who is also a resident of the apartment complex and works there as a security guard when not on his job with the police department. McPherson also was present at the first fire.

Mrs. Cannon testified she was visiting friends in an apartment directly across from the unoccupied apartment in which the fires originated at about 11 p. m. on December 29, the night of the second fire, when she heard a loud noise and went to investigate. The unoccupied apartment was engulfed in flames. She bumped into James McCann who was running from the apartment. She suspected McCann of arson because McCann knew exactly where to cut off the switches to the electricity where the fires originated and he was acting strangely and was overly solicitous. The complex had two additional fires where arson also was suspected because the fires originated in other electrical boxes.

On the advice of his attorney, McCann refused to testify on the constitutional ground that he might incriminate himself.

Sgt. McPherson, accepted as an expert, stated that the first fire was inside the ceiling and the electricity was cut off, but the second fire was an electrical fire. He observed McCann in the crowd at both fires. McCann acted abnormally at the second fire and was interrogated at length by McPherson, once at the Algiers Naval base where McCann was employed and where there also was a rash of fires. McCann admitted setting two of ten fires, including setting the second fire in suit, by applying rags around wires coming into a circuit breaker. He told McPherson foam rubber burned well. McPherson was convinced McCann set the fires he admitted setting because of his knowledge of how and where they started. He did not believe McCann started the first fire, although he was present, because McCann was acting in a normal manner at that time. McCann sought psychiatric treatment and was still under psychiatric care six months later.

The only damage to plaintiff’s property as a result of the first fire was due to soot and smoke and we conclude that the first fire was not caused by arson.

The second fire caused extensive damage. Since the judgment appealed from awards damages exceeding that caused by the first fire, it is clear the trial judge either did not believe the proof was sufficient to conclude the second fire was caused by arson, or that the defendant was negligent in not removing the mattresses, carpeting, paint and volatile liquids, and locking and boarding up the apartment after the first fire. Either conclusion, by itself, is sufficient to establish liability.

Had the apartment been locked, which it was not after the first fire, and barricaded where the windows had been burned out, the alleged arsonist would not have had access to the apartment at the time of the second fire. Such a conclusion is within the wide discretion afforded the trial court and we cannot say that conclusion is manifestly erroneous.

Relative to appellant’s second contention, the lease did absolve the landlord from liability resulting from acts or neglects of co-tenants. However, the lease could not absolve the landlord from liability for its own acts or neglects. As pointed out above, the landlord had a duty, after the first fire, to secure the apartment so no unauthorized person or persons would have access. This was not done.

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

AFFIRMED.


text:
    Marva BURRELL, et al. v. GUARANTY NATIONAL INSURANCE COMPANY.
    No. 11322.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 7, 1981.

      Leon C. Vial, III, Hahnville, for plaintiffs-appellees.
    Bienvenu, Foster, Ryan & O’Bannon, Hugh M. Glenn, Jr., New Orleans, for defendant-appellant.
    Before SAMUEL, GARRISON and CHE-HARDY, JJ.
   SAMUEL, Judge.

Plaintiffs, husband and.wife, instituted this suit, individually and for the use and benefit of their minor daughter, for personal injuries, property damages and medical expenses incurred as a result of an accident when their automobile ran into a hole in a street in Edgard, La. The accident allegedly occurred as a result of the negligence of St. John the Baptist Parish utility employees. Defendant, the parish insurer, answered in the form of a general denial, alternatively pleading contributory negligence. Following trial, judgment was rendered against the defendant for $45,000 for pain and suffering (on the part of the plaintiff wife), and $2,839.61 in special damages. Defendant has appealed, contesting (1) liability and (2) quantum.

In connection with the issue of liability, the wife testified as to how the accident occurred, and plaintiffs also offered the testimony of Clifford Bailey, Jr. and Kathy Woods, both of whom had helped extricate her car from a ditch (but who had not witnessed the accident), and Laverne Jack, a lady whose automobile went into a hole in the same street the morning following the accident in suit. Defendant offered the testimony of three parish utility workers, Matthew Joseph, Louis Batiste and Hubert Morris, who had worked on the street the day of the accident and the following day.

It is admitted by all parties that a trench had been dug completely across the street by the parish utility workers on the day of the accident. The trench was to be used to receive a gas line. According to the utility workers, they used a backhoe to dig a trench about 3 feet deep by 2 feet wide to furnish gas service to a trailer. After the pipe was laid the trench was covered by the backhoe. It started to rain before the work was finished so the dirt was wet, but no hole was left, although there was a little mud on the road where the trench was filled. The workers left about 4 p. m. and the following day returned to put shells on top of the trench to keep it from sinking. The following day they saw only about a 3 or 4 inch depression, across the width of the street.

Mrs. Burrell’s version of the accident is that it occurred about 11:15 p. m. on September 13, 1977, while she and her 3 year old daughter were driving on East Fifth Street toward River Road at a speed of 15-20 miles per hour. When she was about 3 feet away she saw a hill of mud to the right of the middle of the road occupying all of the right lane. She swerved to avoid the mud and one wheel went into a hole on the driver’s side. She had been on the street at lunch time and knew the parish was working on the road, but there was no warning that night to indicate the work had not been finished. After the accident she got help from a man who lived in one of the trailers and two ladies who had been driving down the street and stopped to assist.

The trial court must have found there was negligence on the part of the defendant workers and that the plaintiff wife was not eontributorily negligent. The record supports such a finding.

We do agree with appellant’s second contention, that the award of $45,000 is excessive for the injuries sustained.

Evidence of plaintiff’s injuries consists of her own testimony and that of two medical experts, Dr. Arthur Bohmfalk, Jr. (by deposition) and Dr. Raoul Reyes.

Her initial treating physician was Dr. Bohmfalk. She was seen by one of his associates on September 14, 1977, the day after the accident, with a contusion of the forehead. The following day spasms in the right cervical and shoulder area were noted, and the next day plaintiff complained of pain in the back. X-rays were negative for signs of injury. Because of plaintiff’s complaints, daily physical therapy was recommended, and muscle relaxants, local heat and mild analgesics were prescribed.'

Bohmfalk diagnosed plaintiff’s injuries as contusion of the forehead, mild sprain and strain of the neck and shoulder and severe sprain and strain of the lumbar and sacroiliac area. She was referred to Dr. Reyes because of her complaints of back and chest pain.

Dr. Reyes testified he first saw Mrs. Bur-rell on October 7, 1977. He took a history prior to examining her. He concluded that as a result of the accident she sustained a sacral and cervical sprain and post traumatic cephalalgia (headache). Medication was prescribed. Within 24 hours the patient felt worse and was admitted to West St. James Hospital by another physician, who called Dr. Reyes as a consultant. On October 10, he reevaluated the patient in the hospital and found no change. She returned to him as an outpatient on November 3, 14 and 28, 1977 and had improved. Dr. Reyes recommended support shoes which would contribute to improving her back problems.

Upon examination on December 12, 1977, Mrs. Burrell had good motion of her back with residual ache and was permitted to return to full-time typist work, discontinue physical therapy, and advised to return for a check up in one month. She was discharged after a visit on February 9, 1978. She returned on two occasions in August, 1978 with complaints of back pain. Each time she was wearing unsuitable shoes and each time the problem of wearing incorrect shoes was discussed with her, because it would contribute to her back problem. When seen on September 18, 1978, she walked fairly well without limping but, because of her persistent complaints, she was referred to a neurologist. His report based upon EMG studies indicated any back problem she might be having was not related to a disc.

Dr. Reyes concluded maximum medical benefits had been reached by December 13, 1978 and again discharged her. However, she returned for visits on February 8, and March 1 and 22, 1979. The doctor was of the opinion she had not been exercising properly. She also had other problems which did not appear to be associated with the accident (gynecological problems). She returned on April 26 and May 24, 1979.

Dr. Reyes stated it was unusual for a patient to be discharged twice and still return with complaints, but he felt she was sincere. However, while her prognosis is good, her progress depends upon following his directions concerning wearing sensible shoes and faithfully doing the exercises he prescribed. If she had followed his directions, he concluded her problems would have resolved themselves sooner and, if she does not follow this regime regularly, she will have future problems.

Regarding her injuries, Mrs. Burrell testified: She hit her head on the steering wheel and her back started to hurt in the low mid back area. She also hurt her neck. She was seen at St. James Hospital the next day. Tylenol was recommended as was the use of a heating pad. X-rays were taken. She is employed as a clerk typist but was unable to work for some time after the accident. She denied having back problems before the accident and complains of pain in the back “off and on”. She wears shoes Dr. Reyes recommended but not all the time and sometimes does the exercises the doctor recommends, but they take 20 minutes twice a day and sometimes she can’t find time to do them. If she sits too long at work she has to get up and walk around. Her back has improved. She has trouble with her back if she mops or if she sits in one place too long but, other than that, her problem comes and goes.

It is clear from the trial court’s Reasons for Judgment that a large part of the award was based upon the fact that plaintiff, a young, attractive, “unmarried” female, would be required to wear unattractive orthopedic shoes, rather than the high heel shoes she prefers. Plaintiff is in fact not an unmarried female; her husband also is a plaintiff in this suit. In her own testimony she made little complaint about the shoes and there is no evidence she ever discussed the shoes with Dr. Bohmfalk. Her refusal to wear the shoes when advised to do so by Dr. Reyes contributed to the back problems plaintiff was experiencing. She still continues to act as her own physician in failing to follow his advice about the shoes and exercising..

In accordance with the guidelines set forth for us by the Supreme Court in Coco v. Winston Industries, Inc., we believe the record clearly demonstrates the trial court abused its discretion in making a $45,000 award for pain and suffering. We therefore reduce the award only to the extent of lowering it to the highest point which we believe is reasonably within the discretion afforded the trial court which, in our view, is $20,000.

For the reasons assigned, the judgment is amended to reduce the award to Mrs. Bur-rell for pain and suffering from the sum of $45,000 to the sum of $20,000. As thus amended, and in all other respects, the judgment appealed from is affirmed.

AMENDED AND AFFIRMED.

      . She returned to Dr. Bohmfalk in June and August 11 and 14, 1978, with complaints of back strain but was not examined or treated by him since he considered her Dr. Reyes’ patient and advised her to return to him. She also requested a prescription from Dr. Bohmfalk on March 12, 1979 because Dr. Reyes was out of town.

      . La., 341 So.2d 332.


text:
    Lois B. OSTROLENK v. The LOUISE S. McGEHEE SCHOOL.
    No. 11480.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 7, 1981.
    Writ Denied Sept. 28, 1981.

      Lanny R. Zatzkis, New Orleans, for plaintiff-appellee.
    Denechaud & Denechaud, Thomas A. Rayer, New Orleans, for defendant-appellant.
    Before SAMUEL, REDMANN and BOU-TALL, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit against The Louise S. McGehee School to recover $11,-865.50 resulting from an alleged breach of contract committed by the defendant in refusing to honor a contract of employment for the 1978 — 1979 school year. The contract employed plaintiff to teach music at defendant’s institution. Plaintiff sought $11,000 in salary, $200 in loss of a deferred annuity, and $665.50 as a lost social security contribution which would have been made by defendant on her behalf.

Defendant answered admitting plaintiff had been offered employment, but denying the allegations of the petition, asserting no valid contract ever existed between plaintiff and défendant because the offer and acceptance of employment were vitiated and made null and void by plaintiff’s perpetration of fraud, mistake, or misrepresentation by plaintiff’s failure to disclose to defendant the circumstances surrounding her last place of employment and her termination from it. The answer also avers plaintiff was advised the offer of employment was withdrawn by July 7, 1978 and therefore she had ample time within which to seek other employment as a teacher for the 1978-1979 school year.

After a trial on the merits, judgment was rendered in favor of plaintiff in the amount of $11,000. Defendant has appealed. The facts are not in dispute; we are presented only with issues of law.

On May 22, 1978, plaintiff applied for the position of music teacher with defendant, a private girls’ school in New Orleans. She completed a written employment application and was interviewed by the school’s head mistress, Mrs. Maria Fernandez.

The application included a portion of plaintiff’s previous experience as a music teacher and, insofar as the academic year 1977-1978 was concerned, plaintiff indicated only that she had engaged in activities as a “private piano teacher.”

Although Mrs. Fernandez did not specifically ask plaintiff about her professional activities “during the 1977 — 1978 academic year” she nevertheless orally inquired into plaintiff’s latest activities. Plaintiff reaffirmed the statement previously made in her application that she had been engaged in private piano teaching. Plaintiff also was interviewed by the music teacher then teaching at the defendant school, who also orally inquired about plaintiff’s latest professional activities. Plaintiff related the same statement to the music teacher.

Both defendant’s head mistress and the music teacher recommended plaintiff for the position, and defendant offered employment to plaintiff on June 1, 1978. The offer of employment was returned signed by plaintiff, dated June 7, 1978.

Shortly thereafter defendant’s head mistress learned plaintiff had been employed at another private school in the New Orleans area for most of the 1977-1978 academic year, but during May, 1978 her employment at that school had been terminated. This fact had not been disclosed on plaintiff’s application form, nor did she disclose it in her interviews with either defendant’s head mistress or the music teacher.

On June 30, 1978 the head mistress wrote to plaintiff advising her she had learned of plaintiff’s termination by the other private school and stating an explanation of this fact on her part was in order. Plaintiff’s only response was that the matter was a serious one and could not, in her opinion, be handled by mail. On July 7, 1978 defendant’s head mistress wrote plaintiff stating the defendant school felt it was under no obligation to honor the employment offer extended to plaintiff because of her deliberate omission of her recent employment and dismissal from the other private school. This suit followed.

It is clear plaintiff possesses the necessary qualifications to perform the position for which she applied. It is also clear defendant withdrew employment because plaintiff omitted to inform defendant of her dismissal from the private school during the 1977 — 1978 school year, and that the withdrawal of employment was not based upon the reason for plaintiff’s dismissal. It is also clear that while neither defendant’s head mistress nor its music teacher asked plaintiff what her activities were “during the 1977-1978 academic year”, their inquiries at the respective interviews were directed to this period of time, and plaintiff either misstated or omitted to state the true facts.

Plaintiff bases her claim to recover the contract amount on Civil Code Article 2749, which provides:

“If, without any serious ground of complaint, a man should send away a laborer whose services he has hired for a certain time, before that time has expired, he shall be bound to pay to such laborer the whole of the salaries which he would have been entitled to receive, had the full term of his services arrived.” LSA-C.C. Art. 2749.

This article has been applied to various types of employment, including a traveling salesman, an actor employed for “the season”, a teacher in a private school, the manager of an insurance company casualty section, and the general manager of a radio station. However, in each of these cases it was established that a valid contract of employment in fact existed prior to suit being filed.

We conclude the uncontested facts establish an error existed as to the nature or character of the person of the plaintiff sufficient to invalidate the contract under Civil Code Articles 1823 and 1826, which read:

“Errors may exist as to all the circumstances and facts which relate to a contract, but it is not every error that will invalidate it. To have that effect, the error must be in some point, which was a principal cause for making the contract, and it may be either as to the motive for making- the contract, to the person with whom it is made, or to the subject matter of the contract itself.” LSA-C.C. Art. 1823 (Emphasis ours).
“No error in the motive can invalidate a contract, unless the other party was apprised that it was the principal cause of the agreement,jor unless from the nature of the transaction it must be presumed that he knew it.” LSA-C.C. Art. 1826.

In the present case plaintiff knew she was applying for employment with a private girls’ school, and it is common knowledge that the success of such an institution depends on the image and reputation projected by it. That image is used by the public in general to measure the quality, character, and integrity of the school and its faculty.

Plaintiff had taught in private schools, and must have been aware that the character of its faculty members is a major concern of the school’s administration, second only perhaps to the faculty member’s ability. Plaintiff’s omission of her employment and firing from her previous employment amply demonstrates she was aware of this fact, and this omission creates a presumption of her knowledge that her character or ability was a principal cause of her hiring.

The need for a faculty with impeccable integrity and sufficient ability in a private girls’ school is a principal cause in the hiring of its teachers. The error induced in defendant by plaintiff’s omission went to the motive for making the contract and, as such, invalidated it from its inception.

The proposition has been stated at 78 C.J.S. “Schools and School Districts” § 187, pp. 1043-44, as follows:

“A false representation of a material fact by the teacher, with knowledge of its falsity, with intent to induce the school authorities to enter into a contract of employment to teach, constitutes fraud sufficient to entitle the school authorities to avoid the contract.”

Moreover, Civil Code Article 1832 provides:

“In all cases, however, when the information which would have destroyed the error, has been withheld by the other party to the contract, it comes under the head of fraud, and invalidates the contract.” LSA-C.C. Art. 1832.

This court, in Aetna Ins. Co. v. General Elec. Co., observed that under Civil Code Article 1847(5) either an assertion of what is false or a suppression of what is true constitutes fraud if such action is designed to obtain an unjust advantage.

Defendant’s head mistress testified the contract was terminated because of plaintiff’s omission of unfavorable facts and not because of the truth of anything stated against her. In view of her desire to obtain employment, plaintiff’s omission to state facts unfavorable to her is both human and understandable. Nevertheless, this omission induced an error in defendant as to a principal cause of the contract by which plaintiff was hired and renders the contract null from its beginning.

Particularly under the circumstances of the present case, we reject plaintiff’s argument that her silence was merely a normal part of the routine of obtaining employment, and that the burden was upon defendant to obtain any factual evidence to determine her lack of fitness for the position. This argument likens the employment of a teacher for a private girls’ school to an adversary proceeding.

For the reasons assigned, the judgment appealed from is reversed, and it is ordered that there be judgment dismissing plaintiff’s suit. Plaintiff is to pay all costs in both courts.

REVERSED.

      . Plaintiff testified she was aware disclosure of her termination at the other private school would jeopardize her chance of employment with defendant. She also stated she wanted to give the references available in order to obtain the employment.

      . Dunbar v. Orleans Metal Bed Co., 145 La. 779, 82 So. 889.

      . Camp v. Baldwin-Melville Co., 123 La. 257, 48 So. 927.

      . Martin v. Coral Gables Academy, La.App., 369 So.2d 255.

      . Van Denburgh v. H. T. Higginbotham, Inc., 168 La. 461, 122 So. 581.

        .Carlson v. Ewing, 219 La. 961, 54 So.2d 414.

      . See LSA-C.C. Art. 1826, quoted above.

      . See Housecraft Div. of Southern Siding Co. v. Tatum, La.App., 130 So.2d 524.

      .La.App., 362 So.2d 1186.


author:
BOUTALL, Judge.
      BARRY, Judge,

text:
    Jana P. USRY, widow of David P. Usry v. LOUISIANA DEPARTMENT OF HIGHWAYS.
    Nos. 12024, 12025.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 7, 1981.
    Writs Denied Sept. 28, 1981.

      Lawrence S. Kullman, Harvey J. Lewis, New Orleans, for Jana P. Usry, plaintiff-appellant; Kierr, Gainsburgh, Benjamin, Fal-lon & Lewis, New Orleans, of counsel.
    Joseph E. Roberts, Hebert & Abbott, New Orleans, for Reliance Insurance Co., plaintiff-appellant.
    Philip K. Jones, Norman L. Sisson, Marshall W. Wroten, Jesse S. Guillot, New Orleans, for Louisiana Department of Transportation and Development, defendant-appel-lee.
    Before BOUTALL, BARRY and KLEES, JJ.
   BOUTALL, Judge.

This appeal arises from a judgment of the trial court dismissing the plaintiff’s claim for damages from the defendant for the wrongful death of the plaintiff’s husband who was fatally injured in an auto accident.

On September 8, 1975, at approximately 9:15 P.M., David Usry, an employee of Creative Industries was travelling alone in his rented automobile in an easterly direction on Interstate 10 toward New Orleans. When he reached the area of this 3 lane highway which forms four lanes, two for Interstate 610 to Slidell and two for Interstate 10 to downtown New Orleans, Usry was driving in the far left lane leading to Interstate 610. At this point Usry made an attempt to cross the other lane of traffic leading to Interstate 610 and enter one of the two lanes which form Interstate 10 toward downtown New Orleans. In doing so Usry successfully crossed one lane of traffic but then entered the gore area between both Interstates 10 and 610 and lost control of his vehicle causing it to jump the guard rail and careen into a nearby canal. Usry was unable to escape the vehicle which he occupied and suffered death by drowning. Thereafter, Jana Usry, wife of the decedent, filed suit against the Louisiana Department of Transportation and Development (hereinafter referred to as the Department of Transportation) seeking recovery of damages for the alleged wrongful death of her husband. No answer was filed by the Department of Transportation. A separate suit was filed by Reliance Insurance Co., the workman’s compensation insurer of the decedent’s employer, seeking recovery of the funeral and medical expenses it had paid to Mrs. Usry and for the compensation benefits it had paid under its obligation to Mrs. Usry. Named as a defendant in this proceeding was the Department of Transportation. The two suits were consolidated for trial. The trial court dismissed the claims of Mrs. Usry and the compensation carrier Reliance Insurance Co. and they appeal.

On appeal there are two basic issues before us: 1) whether the Department of Transportation is liable for the death of the decedent under either the strict liability imposed by C.C. 2317, or fault imposed by C.C. 2315; and 2) whether the workman’s compensation carrier is entitled to recovery of the compensation benefits it has paid and is obligated to pay the plaintiff.

I

It has only been recently held that the tort theory of Strict Liability under C.C. Art. 2317 can be applied to public bodies. In Jones v. City of Baton Rouge, 388 So.2d 737 (La.1980) the Louisiana Supreme Court indicated that municipalities and other public bodies could be held liable for damages caused by defective things in their custody. To establish liability under this theory one must prove:

“. . . that the thing which caused the damage was in the care or custody of the defendant, that the thing had a vice or defect — that is that it occasioned an unreasonable risk of injury to another — and that his injury was caused by the defect.”

Jones v. City of Baton Rouge, supra. Shipp v. City of Alexandria, 395 So.2d 727 (La.1981).

The record in the matter before us indicates that David Usry, a frequent visitor to New Orleans, rented an automobile from Avis Rent-a-Car at the New Orleans International Airport around 8:30 on the evening of September 8, 1975. Usry entered 1-10 travelling in an easterly direction toward downtown New Orleans as he was planning to spend the night at a hotel in the French Quarter. As he approached the Bonnabel Boulevard overpass he was in the left lane of the three lane highway. The highway signs indicated that travelers heading East to New Orleans should be in the center and right lanes. Further down the roadway was a second sign which indicated that motorists going East to New Orleans should be in the far right lane. Usry continued to remain in the far left lane despite this second advance notice. An additional sign at this point indicated that the middle and far left lanes were to be used as an exit for West End and Canal Blvd. The next sign up the highway was located at the fork which divided into four lanes for 1-10 East to New Orleans and two for 1-610 to Sli-dell. It indicated that the two lanes on the right were for travelers headed to New Orleans on 1-10 East and the two lanes on the left were for motorists traveling on 1-610 to Slidell. Usry continued to operate his vehicle in the far left lane when shortly before he reached the fork he made an attempt to cross into one of the two lanes leading to New Orleans. In doing so Usry successfully crossed one lane of traffic but then entered the gore area between both 1-10 and 1-610. He lost control of his vehicle when one of the tires hit a two to four inch ledge which separated the unpaved portion of the gore area and the shoulder of the highway. Thereafter the automobile hit the guard rail in the gore area causing it to rocket into the air and travel some 110 feet into the 17th Street canal located just beyond the gore area. Usry was unable to escape from his vehicle and he suffered death by drowning.

The plaintiff contends that there were three basic defects in the highway which either caused or contributed to the accident. They are: 1) the signs leading up to the 1-10 — 1-610 fork were confusing and misleading; 2) the gore area between the two interstates was unsafe; and 3) the guard rail was improperly designed.

With regard to the first alleged defect both the plaintiff’s expert and the defendant’s expert indicated that the signs on the highway met the proper standards for the motorist heading East to New Orleans. There were two sets of signs giving advance warning well before the I — 10—1-610 fork. Usry chose to ignore these signs and remain in the lane heading away from 1-10 East to New Orleans until the very last instant when he made an attempt to correct his error but was unsuccessful. Any confusion which might have resulted due to inconsistent signing of the two signs before the 1-10—1-610 fork, one indicating West End and Canal Blvds and the other 1-10 to Slidell was not a factor in this accident as the decedent intended to go downtown New Orleans. Therefore, the signs did not create any unreasonable risk of injury to the decedent.

Insofar as the remaining two allegations are concerned, the experts for both parties testified that both the gore area and the guard rail did not meet the standards that were in existence at the time of the accident. The gore area should have been much larger and evenly paved and the guard rail was improperly designed and lacked impact attenuators. However these facts alone do not serve to establish that these two items were defects in the highway. The record reflects that these two items met the proper standards for the protection of motorists that were in existence at the time the highway was constructed some 12 years earlier and further that documented plans were in the works which would have brought these areas within the then current guidelines. The failure of the state to update its highways to the current standards does not establish the existence of a hazardous defect. Roberts v. Winston Carriers, Inc., 304 So.2d 818, 824 (3rd Cir. 1974). To impose a burden upon the state of having to update its thousands of miles of highways within the latest guidelines would be an impossible one to fulfill.

Several witnesses testified that the accident was caused by driver error. The police officers conducting the accident investigation testified that Usry was speeding at the time of the accident. He was traveling at the rate of 60-65 miles per hour when the speed limit was 55 miles per hour, as per LSA-R.S. 32:61. In addition to the speeding violation the driving pattern chosen by Usry which lead to the accident was in violation of several other Louisiana Revised Statutes regulating the operation of motor vehicles including improper lane change, improper use of the median, etc. The report from the Jefferson Parish Coroner’s Office indicated that the decedent had a blood alcohol level of .14 milligrams establishing that Usry had been drinking alcoholic beverages shortly before the accident. The defendant’s expert testified that an alcoholic blood content at this level meant that Usry’s reflexes were somewhat compromised. Finally, testimony by the employees of the Department of Transportation indicated that the 1-10—610 fork was one of the most congested driving areas in the state. Of the 88,000 vehicles which traverse that area each day there were only 24 accidents in that area in the year immediately preceding the accident. Of these accidents there was only one other one which involved both the gore area and the guard rail. Most of the others involved rear-end collisions and sideswipes involving the guard rail. The guard rail and gore area though somewhat outdated were serving the purpose for which they were designed, that is, the protection of motorists.

Based on the foregoing we believe that the gore area and the guard rail did not create an unreasonable risk of injury to the decedent. The fact that he used it in an illegal and improper manner does not elevate the condition of the area to that of an unreasonably dangerous defect. The prudent and careful driver finding himself in the position in which Usry was in would have stayed on 1-610 and exited at the next exit instead of making such a careless move which resulted in his death. It is well settled that the Department of Transportation is not responsible for every accident which may occur on the state highways, nor is it a guarantor of the safety of travelers thereon, or an insurer against all injury which may result from obstructions or defects in such highways. U. S. F & G v. State Dept. of Highways, 339 So.2d 780 (La.1976). If we had found that the contentions raised by the plaintiff were defects then we would be placing the Department of Transportation in the position of an insurer. See for example Shipp v. City of Alexandria, supra.

Accordingly, we find that the plaintiff has failed to establish the elements necessary to impose strict liability upon the Department of Transportation.

The second contention of liability raised by the plaintiff is that the accident was due to the alleged negligence of the Department of Transportation. The law in this area is well settled. It is the duty of this department to construct and maintain the highways in a condition reasonably safe for persons exercising ordinary care and reasonable prudence. The Department of Transportation is only liable when the evidence shows (1) that the hazardous condition complained of was patently or obviously dangerous to a reasonably careful and ordinarily prudent driver; and (2) that the department had notice, either actual or constructive, of the existence of the defect and failed within a reasonable time to correct it. U. S. F & G Co. v. State, Dept. of Highways, 339 So.2d 780, 785 (La.1976); Doucet v. State Department of Highways, 309 So.2d 382 (3rd Cir. 1975) writ denied 312 So.2d 340 (1975).

In consideration of our discussion above it is clear that the 3 alleged highway defects regarded by the plaintiff as a hazardous condition were not patently or obviously dangerous to a reasonably careful and prudent driver. The signs, guard rails and gore area in existence at the time of the accident were adequate for the motorist exercising ordinary care. This fact is proved by the statistics as to the number and types of accidents in this area. Furthermore, there is no doubt that Usry failed to exercise reasonable care and prudence in the operation of his automobile as he violated several statutes governing the regulation of motor vehicle traffic and suffered from the effects of having partaken of alcoholic beverages before driving that evening. Therefore, the plaintiff has failed to carry the burden of proof in establishing the first element of negligence required to permit a finding of liability against the Department of Transportation. It is not necessary for us to consider the second element. Accordingly, the plaintiff is not entitled to recovery under this theory of fault.

II

The second issue concerns the right of Reliance Insurance Co., as the workman’s compensation carrier, to recover from the Department of Transportation the compensation benefits it has paid and is obligated to pay to the plaintiff. Under LSA-R.S. 23:1101 any person having paid or who becomes obligated to pay workman’s compensation benefits may recover the amounts paid as compensation from the third person tortfeasor.

However, the right of the insurer to recover is based upon the right of the insured to recover. Because we have decided there is no liability of the Department of Transportation to plaintiff, for the same reasons there is no liability to Reliance and its claim is also dismissed.

Based on the foregoing, we order that the judgment of the trial court be affirmed.

AFFIRMED.

BARRY, J., dissents.

BARRY, Judge,

dissenting.

The trial judge properly concluded that the plaintiff carried her burden of proving causation by a preponderance of the evidence and that the gore proximately caused this accident. Therefore, under La.C.C. Art. 2317, the defendant is strictly liable. Jones v. City of Baton Rouge-Parish of East Baton Rouge, 388 So.2d 737 (La.1980).

The defendant had custody and full responsibility for the condition and maintenance of the gore and any defect thereon imputed liability to the defendant. The gore area was approximately four inches lower than the paved highway and consisted of shells rather than the rigid support afforded by the contiguous paving. The record reflects that the driver was able to successfully negotiate the change of lanes and that the accident was caused when the vehicle’s tire became trapped in the soft, lower gore causing the driver to lose control and the resultant fatality.

I find it unnecessary to determine whether the signs leading to the “fork” were confusing or if the guard rail design was defective. Either or both of these two contentions could have been contributing causes of the accident, but the accident would not have occurred except for the defective gore. The gore area of this busy interstate highway should have been maintained in a reasonably safe condition and the defendant should have foreseen that this area could be subject to vehicle use at high rates of speed. Construction of the gore as it existed actually created a defect which the defendant failed to timely correct and for which it is clearly responsible.

Standards for construction “when built” is not a proper defense and the defendant had an affirmative duty to correct this dangerous area which it had knowledge of long before the accident. “If the highway, including shoulders, curbs, etc. are in need of repair, conformity with design standards existing at the time of original construction affords no defense when the highway department negligently fails to make repairs and remedy unsafe conditions.” Bresnerd v. Department of Highways, 381 So.2d 1303 (La.App. 4th Cir. 1980).

The trial court’s holding that the defendant had no legal duty to upgrade the highway despite its knowledge of the inherent danger was manifest error and I respectfully dissent.

      . LSA-R.S. 32:79:
      “Whenever any roadway has been divided into two or more clearly marked lanes for traffic, the following rules, in addition to all others consistent herewith, shall apply.
      “(1) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.”
      LSA-R.S. 32:82:
      “A. Whenever any highway has been divided into two roadways by a median, physical barrier, or clearly indicated dividing section so constructed as to impede vehicular traffic, every vehicle shall be driven only upon the right hand roadway and no vehicle shall be driven over, across or within the median, barrier or section, except through an improved opening or at a cross over or intersection established under authority of this Chapter.”
      LSA-R.S. 32:64:
      “A. No person shall drive a vehicle on the highway within this state at a speed greater than is reasonable and prudent under the conditions and potential hazards then existing, having due regard for the traffic on, and the surface and width of, the highway, and the condition of the weather, and in no event at a speed in excess of the maximum speeds established by this Chapter or regulation of the department made pursuant thereto.”


author: KLEES, Judge.

text:
    Autherine Thurman, Wife of/and Quincy NEWELL v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 12348.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 7, 1981.

      Harry T. Widmann, New Orleans, for plaintiffs-appellees.
    Floyd F. Greene, New Orleans, for defendant-appellant.
    Before BOUTALL, BARRY and KLEES, JJ.
   KLEES, Judge.

Plaintiff instituted this suit for workmen’s compensation against her employer, New Orleans Public Service, Inc., (hereafter referred to as NOPSI) seeking compensation, penalties, and attorney’s fees.

After a trial on the merits, judgment was rendered in favor of plaintiff Autherine Thurman Newell awarding her compensation in the amount of $145.33/week for fifteen (15) weeks together with the interest of twelve per-cent (12%), attorney’s fees of $350.00 and costs. Defendants have appealed this ruling.

On appeal, the issues presented here are whether (1) plaintiff has carried the burden of proving she sustained an injury arising out of and in the course of her employment and (2) if such accident did occur, whether the trial judge properly found that defendant acted in an arbitrary and capricious manner in assessing penalties and attorney’s fees.

Did plaintiff sustain an injury arising out of and in the course and scope of her employment?

The only evidence contained in the record relative to the occurrence of the accident is the testimony of plaintiff, Mrs. Autherine Thurman Newell. She testified that on July 4, 1978 while employed as a bus driver for NOSPI, she was operating her bus on the 4 to 11 P. M. shift, when, upon attempting to turn, her seat dropped 5 or 6 inches causing an injury to the lower right side of her back. After an adjustment to her seat and mirrors further along her route, she completed her shift. Plaintiff further testified that she reported the defective seat by filling out a defect card and leaving it on the fare box and also reported the injury. The next day she was examined by the company physician Dr. C. W. Peterson, who diagnosed her injury as “lumbo-sacral strain of back” and recommended medication, placed her on “modified duty” and set up another visit.

Upon returning for a second visit, plaintiff was not examined but was to be referred to a specialist, Dr. George D. B. Berkett. But after speaking to the claims department, Dr. Peterson tore up the appointment slip and sent her to the claims department, where she was told that they could find no defects in the bus seat and she was instructed to return to work, which she did not do.

Plaintiff was also seen by Dr. Florence E. Jones, her private physician, on July 8, 1978 who also diagnosed her injury as “lumbo-sa-cral strain”. Dr. Kenneth N. Adatto, an orthopedic surgeon, treated plaintiff until September 21,1978 when he discharged her.

During the trial plaintiff attempted to elicit testimony from another bus driver, Mr. Phillip Draughter, who was to testify of a similar situation in which a seat dropped suddenly. His testimony was not allowed except by proffer, which was not made. Defendant likewise attempted to offer the testimony of an equipment engineer, Mr. Fred A. Basha, concerning the driver’s seat. Although counsel for plaintiff stated he was an expert he was never qualified as such and a proffer was never made of his testimony.

It is this court’s opinion that the testimony of these witnesses was properly excluded by the trial judge.

This situation is similar to that in Diesel Engine Repairs Inc., v. Point Landing, Inc., 291 So.2d 793 (La.App. 4th Cir. 1974). There the appellant contended that the trial judge erred when he refused to qualify a witness as an expert. The Court of Appeals agreed with the trial judge and held that proper procedure required plaintiff to qualify the witness as an expert at the commencement of his testimony.

“We find no merit to Diesel’s complaint that the the trial judge erred when he would not permit a witness called by plaintiff under cross-examination to be qualified as an expert. Plaintiff called Carl Schaeffer under cross-examination and upon eliciting testimony which appeared. to be adverse to Point Landing, plaintiff then sought to qualify this witness as an expert. No attempt was made to qualify this witness ab initio. The request was made only after cross-examination revealed the witness not to be adverse. The court in our opinion, rightfully refused the request. Proper procedure required plaintiff to qualify Schaef-fer as an expert at the commencement of his testimony. While a witness’s testimony may pertain to several facets of a case, a court cannot permit the court’s use as fishing grounds for exploration. Such is the reason for interrogatories and other procedural devices. We might point out that the trial judge offered plaintiff time to apply for supervisory writs from the adverse ruling; however, plaintiff failed to avail himself of this right. The record is not clear that plaintiff proffered testimony to qualify him as an expert or to illicit opinion testimony. Nevertheless, under the circumstances, we find no error in the court’s evidentia-ry ruling. Pp. 796 & 797.

As explained earlier no attempt was made to qualify either witness as an expert at the beginning of their testimony. The only reference to them being an expert was that which was mentioned after the trial judge intervened.

Defendants’ only other witness regarding the seat was Mr. Gernon Truxillo, a NOPSI mechanic who after reading his notes testified that he examined the seat on plaintiff’s bus on July 5, 1978 and found no defect with the seat or lock.

In the instant case the trial judge obviously chose tp accept the testimony of the plaintiff over that of NOPSI’s mechanic.

Such a result follows the recent holding in Gurry v. Allied Metals, Inc., 379 So.2d 871 (La.App. 4th Cir. 1980), which recognized that the testimony of an injured worker, as corroborated by credible medical evidence, was sufficient to support a trial judge’s conclusion awarding past-due worker’s compensation, penalty interest, attorney’s fees, court costs, experts fees, all medical bills, expenses, and continued compensation.

In the present case the claimant’s testimony is corroborated by the medical evidence following the alleged event as well as her reporting of the “defect”. The only evidence that NOPSI could offer was the testimony of a mechanic who stated he could find no defects in the seat upon checking it the next day.

Such determination of fact will not be disturbed on appeal when there is evidence before the trier of fact which upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for such findings, unless such findings are clearly wrong. Crump v. Hartford Accident and Indemnity Company, 367 So.2d 300 (La.1979).

Regarding the claim for penalties and attorney’s fees, the trial court found that NOPSI had been arbitrary and without probable cause in not granting workman’s compensation benefits. The record discloses that plaintiff notified NOPSI of her injury and the defect and promptly went to the company physician. That she was to be referred to a specialist indicates that she was considered disabled by the company. However, this referral was terminated by the claims department.

LSA-R.S. 23:1201.2 provides for penalties and attorney’s fees for any employer who does not pay workmen’s compensation benefits “when such failure is found to be arbitrary, capricious or without probable cause.”

In making his determination, the trial court evaluated the conflicting testimony and weighed the accepted testimony. It is a fundamental rule of appellate review that the trial judge’s factual determination will not be disturbed in the absence of manifest error. Here there is a factual basis for the trial court’s finding. Canter v. Koehring Company, 283 So.2d 716 (La.1975).

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

AFFIRMED.


author: BOUTALL, Judge. • CHEHARDY, Judge,

text:
    Rodney P. CORTEZ v. HOOKER CHEMICAL AND PLASTICS CORPORATION, et al.
    No. 10937.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 8, 1981.
    McCann & Volk, John J. McCann and Herman M. Schroeder by John J. McCann, Trial Atty., Leonard A. Radlauer, New Orleans, for Rodney P. Cortez, plaintiff-appellant.
    Constance Charles Willems of McGlin-chey, Stafford & Mintz, New Orleans, for Hooker Chemical & Plastics Corp. et al.
    Before REDMANN, BOUTALL and CHEHARDY, JJ.
   BOUTALL, Judge.

Rodney Cortez sued for personal injuries received while attempting to fight a fire at the Taft plant of the Hooker Chemical and Plastics Corporation. He sued Hooker Chemical and Plastics Corporation and several executive officers and/or supervisory employees, Robert Hall, George Haas, Clyde Hill and Shirley Zermgue. These named defendants are appellees in the appeal before us. There are other defendants in the suit who are not before us.

The accident occurred on September 6, 1977, while plaintiff was employed as a production technician with Hooker. Plaintiff alleges he hurt his back in the following manner:

“IV
“At or about 9:30 A.M. on that date, while petitioner was at work, an explosion occurred where petitioner was working, causing the hydrogen stacks to catch fire. Pursuant to orders, petitioner assisted in securing fire extinguishers to quell the fire, but there were not enough available at the site. Whereupon petitioner was ordered to secure more fire extinguishers. Petitioner and others were brought to a storage area to secure additional fire extinguishers and, in the act of attempting to load such fire extinguishers into a pickup truck to return to the scene of the fire, petitioner sustained the injuries hereinafter described.”

Plaintiff alleges the intentional acts of the defendants to be intentionally ordering and accepting deficiently designed, manufactured and installed roofing on the building and accepting and permitting to be used machinery and equipment that was defi-ciently designed, manufactured and installed. He further alleges that the defendants wilfully and intentionally disregarded the provisions of the Occupational Safety and Health Act, particularly those relating to fire extinguishers and hazardous materials. Finally, plaintiff attacks the constitutionality of LSA-R.S. 23:1032 restricting the right of plaintiff to sue his employer, the executive officers and supervisory employees thereof.

To plaintiff’s petition the defendants filed an exception of no right of action and exception of no cause of action, both based upon the exclusionary principle set out in LSA-R.S. 23:1032. The trial court by a judgment of February 20, 1979, overruled and dismissed the exception of no cause of action and at the same time maintained the exception of no right of action, granting 20 days to cure the defects complained of or have the suit dismissed. Plaintiff filed an amended petition, and when the matter came on later for hearing on a number of rules filed in the case, the court found that there had been no compliance with its prior order and dismissed plaintiff’s suit against these defendants. In his reasons for judgment the court stated that he should have maintained the exception of no cause of action rather than the exception of no right of action, but concluded, after examination of the amended petition, that the plaintiff had again failed to allege any facts relative to an intentional act as specified in the case of Guidry v. Aetna Casualty & Surety Company, 359 So.2d 637 (La.App.1st Cir. 1978). The court thereupon dismissed plaintiff’s petition.

Plaintiff contends on appeal that his suit was improperly dismissed because judgment was based upon the exception of no right of action rather than no cause of action. However, Code of Civil Procedure Article 927 specifically provides that the failure to disclose a cause of action or a right or interest in the plaintiff to institute suit, may be noticed by either the trial or appellate court of its own motion. It appears to us that the court in dismissing the suit recognized this principle and dismissed based upon the exception of no cause of action. Additionally we point out that we have examined the petition and the supplemental petitions, and we are entitled by that same article to notice the exception and act upon it. See for example Morse v. Hartford Casualty Insurance Company, 326 So.2d 390 (La.App. 3rd Cir. 1976); Wells v. St. Tammany Parish School Board, 340 So.2d 1022 (La.App. 1st Cir. 1976); Pogue v. Ray, 272 So.2d 454 (La.App. 2d Cir. 1973). C.C.P. Article 2164 provides that we shall render any judgment which is just, legal and proper upon the record on appeal, and because, for the reasons expressed later, we hold that plaintiff has not stated a cause of action under LSA-R.S. 23:1032, we affirm the dismissal of plaintiff’s suit.

The basic issue on this appeal is the application of LSA-R.S. 23:1032 to the facts alleged by the plaintiff employee against his employer and certain officers and supervisory employees thereof. As amended in 1976, that section reads in pertinent part:

“§ 1032. Exclusiveness of rights and remedies; employer’s liability to prosecution under other laws
“The rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said injury, or compensable sickness or disease. For purposes of this Section, the word “principal” shall be defined as any person who undertakes to execute any work which is a part of his trade, business or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof.
“Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner or employee of such employer, or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.”

Pending this appeal, the Supreme Court of Louisiana has rendered an opinion in the case of Bazley v. Tortorich, 397 So.2d 475 (La.1981) which reversed a decision of this court in the case of Bazley v. Tortorich, 380 So.2d 727 (La.App. 4th Cir. 1980). In that case, the Supreme Court concluded that the words “intentional act” meant the same as “intentional tort” in reference to civil liability. The facts alleged by petitioner in this case do not meet the principles set forth in Bazley and accordingly we must conclude that plaintiff has not alleged a cause of action.

Similarly, we point out that the issue of constitutionality proposed here has been raised and decided in the Bazley case by the Supreme Court. We see no point in discussing that issue in detail, as it suffices to say that we are bound by that decision.

For the foregoing reasons, the judgment of the trial court dismissing plaintiff’s suit against the defendants party to this appeal is affirmed.

AFFIRMED.

CHEHARDY, J., concurs.

• CHEHARDY, Judge,

concurring.

The Supreme Court in Bazley v. Tortorich, 397 So.2d 475, 482 (1981), stated:

“ * * * Several courts of appeal have stated the two prongs of the definition in the conjunctive, thus requiring a plaintiff to prove, in order to recover, that the defendant desired the physical results of his act in every case. Waldrop v. Vistron Corp., 391 So.2d 1274 (La.App. 1980); McGuire v. Honeycutt, 387 So.2d 674 (La.App. 3d Cir. 1980); Johnson v. Chicago Mill & Lumber Co., 385 So.2d 878 (La.App. 2d Cir. 1980); Courtney v. BASF Wyandotte Corp., 385 So.2d 391 (La.App. 1st Cir.) writ denied 386 So.2d 359 (La.1980); Bourgoyne v. City of Baton Rouge, 380 So.2d 131 (La.App. 1st Cir. 1979), cert. denied 382 So.2d 164 (La.1980); Frazier v. Woodward, 378 So.2d 209 (La.App. 4th Cir. 1979); Johnson v. Narcisse, 373 So.2d 207 (La.App. 4th Cir. 1979); Tobin v. Jacobson, 369 So.2d 1161 (La.App. 1st Cir. 1979); Guidry v. Aetna Casualty & Surety Company, 359 So.2d 637 (La.App. 1st Cir.) writ denied, 362 So.2d 578 (La.1978). * * * ”

The court then goes on to state:

“ * * * Intent is not, however, limited to consequences which are desired. If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result. Restatement (Second) of Torts, § 8A, Comment; Prosser, supra, § 8.”

It thus appears that earlier courts of appeal’s interpretation of the meaning of “intent” in LSA-R.S. 23:1032 as amended by Act 147 of 1976 has either been overruled by the Supreme Court in Bazley, supra, or at any rate the meaning has been so broadened as to effectively do away with the earlier definition of the courts of appeal. In doing away with the earlier definition unless we include in the definition “should have known that the result would follow” there exists a distinction without a difference. Why? Under the Supreme Court definition in Bazley one must desire the result or know that the consequences are substantially certain to result. It is imperative that a responsibility be placed on the actor, not simply that he knows the result but that he should have known the result of his action. The “should have known” standard is preferable in that it is an objective standard. The desired or known result standard is subjective and thus the distinction without a difference. Accordingly, I interpret the broadened definition of “intentional” as set forth in Bazley to include the objective “should have known” standard. This thinking would be in line with the view expressed in W. Prosser, The Law of Torts, Ch. 2, § 8 (4th ed. 1971), at 31-32:

“Intent, however, is broader than a desire to bring about physical results. It must extend not only to those consequences which are desired, but also to those which the actor believes are substantially certain to follow from what he does. An anarchist who throws a bomb into the royal carriage may actually wish to kill no one but the king; but since he knows that the death of others in the carriage is a necessary and almost inevitable incident to that end, and nevertheless goes ahead with the deed, it must be said that he intends to kill them. The man who fires a bullet into a dense crowd may fervently pray that he will hit no one, but since he must believe and know that he cannot avoid doing so, he intends it. The practical application of this principle has meant that where a reasonable man in the defendant’s position would believe that a particular result was substantially certain to follow, he will be dealt with by the jury, or even by the court, as though he had intended it. The driver who whips up his horses with a loud yell while passing a neighbor’s team will not be credited when he denies that he intended to cause a runaway; and the defendant on a bicycle who rides down a man in full view on a sidewalk where there is ample room to pass may find the court unwilling to accept his statement that he did not mean to do it.”

I concur in the result because the allegations do not satisfy the new definition of “intent” as laid down by Bazley v. Tortorich, supra.

      . Also named in the suit but designated only by letters of the alphabet are certain architects, designers and engineers of the plant and equipment against whom claim is made based upon faulty design, manufacture and maintenance of the building and its equipment.


author: GARRISON, Judge.

text:
    ESTATE OF Martin SCHWEGMANN v. Edmond SCHWEGMANN. SUCCESSION OF Mrs. Nettie BERTIN, Widow of Martin Schwegmann.
    Nos. 11626, 11627.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 13, 1981.

      Donelon, Cannella & Donelon, James J. Donelon, Metairie, for defendant-appellee.
    Louis C. Philips, New Orleans, for plaintiff-appellant.
    Before BOUTALL, GARRISON, and KLEIBERT, JJ.
   GARRISON, Judge.

This action was brought by the Estate of Martin Schwegmann, plaintiff-appellant, against Edmond Schwegmann, defendant-appellee, to force the return to the Estate of a piece of property (hereinafter referred to as Lot E-8D) sold by Martin Schweg-mann, now deceased, to Edmond.

The instant appeal is part of the continuing litigation in the case, Estate of Schwegmann v. Schwegmann, 288 So.2d 385 (La.App. 4th, 1972) writs granted, 298 So.2d 795 (La., 1974); 344 So.2d 13 (La.App. 4th, 1977). When this case was last appealed to the Fourth Circuit, the panel of Judges Gulotta, Schott, and Morial remanded the case to the district court for a determination of whether a formal act of renunciation was valid, whether the defendant had tacitly accepted the land, and whether despite the renunciation, if valid, the renouncing heir must still collate up to the sum necessary to complete the legitime under C.C. Article 1237.

In response thereto, the district court rendered the following judgment on March 4, 1980:

“After considering all aspects of this matter, the Court cannot conclude that Mr. Schwegmann made either an express or tacit acceptance of any succession asset, other than, of course, the parcel of land he felt was his by way of an act of sale executed by his father. Accordingly, the act of renunciation is valid.” (emphasis added).

Martin Schwegmann and Nettie Bertin were married and had eight children, all issue of the marriage, namely Frank Eugene Schwegmann, Roy William Schweg-mann, Bertin John Schwegmann, Claire Schwegmann Thibodaux, Marie Louise Schwegmann Adolph, Martin Albert Schwegmann, Edmond Dominic Schweg-mann and August Vieth . Schwegmann, who died on June 29, 1949.

Martin Schwegmann died intestate on February 2, 1969 and Nettie Bertin died intestate on July 2, 1972. Both successions were consolidated and the Bertin succession adopted by reference a descriptive list filed in the Schwegmann succession stating that Martin Schwegmann’s property consisted of $1,600.00 worth of savings bonds and a parcel of ground described as E-8E as per resubdivision survey by J.J. Krebs & Sons, Inc. dated 3/1/66, part of the Original Farm Site E-8 of Ames Farm Subdivision and valued at $63,000.00.

On June 22, 1955, Martin Schwegmann “sold” the following parcels to the following children: E-8A to Frank, E-8B to Edmond, E-8C1 to Bertin, and E-8X to Martin Albert. Although the “acts of sale” recite that the “consideration” was $500.00 per sale, all parties have testified that the consideration was never paid. The three remaining children, Claire, Roy, and Marie Louise, and as well as the heirs of the deceased, August, were not “sold” any property.

On April 12, 1966, Martin Schwegmann sold lot E-8D to Edmond for $6,500.00, which was paid. The Louisiana Supreme Court has found that the lot was valued at $43,000.00 on the date of the father’s death and remanded the case to the trial court to determine the value at the time of sale. The trial court found that the value was $28,772.00 as of April 12, 1966.

On March 24, 1977, Martin Albert Schwegmann, son of Martin and Nettie, died.

On appeal, plaintiff-appellant argues that the trial court erred in failing to award a money judgment against the defendant in order to complete the legitime under C.C. Art. 1237. We fail to see how the trial court could possibly have rendered such a judgment, as a practical matter, due to the present posture of the case and the evidence thus far presented. In order to calculate the mass of the estate, it would be necessary to know all debts of the succession. The record contains no evidence of succession debts. Accordingly, we find that the trial court could not have rendered such a judgment without resorting to sheer speculation and that the trial judge acted properly in refraining from rendering judgment in that regard.

Turning to the other two issues presented by the judgment, we note that the trial court found that the act of renunciation was valid and that no tacit acceptance had occurred. Upon our independent review of the evidence we cannot conclude that the trial judge was manifestly erroneous. Canter v. Koehring Co., 283 So.2d 716 (1973); Arceneaux v. Domingue, 365 So.2d 1330 (1978).

For the reasons discussed, the judgment of the district court is affirmed.

AFFIRMED.

      . C.C. Art. 1237:
      “If children, or other lawful descendants holding property or legacies subject to be collated, should renounce the succession of the ascendant, from whom they have received such property, they may retain the gift, or claim the legacy to them made, without being subject to any collation.
      If, however, the remaining amount of the inheritance should not be sufficient for the legitimate portion of the other children, including in the succession of the deceased the property which the person renouncing would have collated, had he become heir, he shall then be obliged to collate up to the sum necessary to complete such legitimate portion.” (Emphasis added).

        . August Vieth Schwegmann died leaving two legitimate heirs Patricia Schwegmann Stewart and Jesslyn Schwegmann, who are petitioners. They each have a one-half interest in August’s one-eighth interest under the doctrine of representation.

      . Estate of Schwegmann v. Schwegmann, 298 So.2d 795 (La. 1974).

      . Estate of Schwegmann v. Schwegmann, 344 So.2d 13 (La.App.1977).


author: EDWIN R. HUGHES, Judge Pro Tern.

text:
    Gloriadine B. GLADSTONE v. AMERICAN AUTOMOBILE ASSOCIATION and the State of Louisiana, Office of Employment Security.
    No. 12231.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 13, 1981.
    Writ Granted Sept. 18, 1981.

      Roger J. Larue, Jr., Metairie, for plaintiff.
    Frank J. Varela, New Orleans, for defendant.
    Before GULOTTA and JOHN C. BOU-TALL, JJ., and HUGHES, J. Pro Tern.
   EDWIN R. HUGHES, Judge Pro Tern.

In this case Gloriadine B. Gladstone seeks nullification of a judgment rendered by the Civil District Court in Orleans Parish, Louisiana. Plaintiff was a ten year veteran salesperson employed by American Automobile Association when discharged from her employment on December 12, 1979. Thereafter she applied for unemployment benefits from the Office of Employment Security of the Louisiana Department of Labor which initially found her qualified to receive benefits. After being notified of the initial determination favorable to plaintiff, the defendant appealed administratively. After a contradictory hearing participated in by both litigants, the initial determination favorable to plaintiff was reversed. Plaintiff then appealed administratively and on final administrative review, the determination that plaintiff was not entitled to benefits was affirmed. Plaintiff then sought judicial review from the Civil District Court in Orleans Parish. On June 30, 1980, the action of the Office of Employment Security denying benefits was affirmed and notice of judgment was given pursuant to the provisions of Art. 1913 of the Louisiana Code of Civil Procedure. No appeal was taken, but on August 13, 1980 plaintiff filed a motion to annul the June 30, 1980 judgment. Thereafter, plaintiff filed a petition to annul the June 30, 1980 judgment of the District Court and to this pleading defendant responded with an exception of no cause of action and a motion for summary judgment. The exception was overruled and the motion for summary judgment was denied. Defendant then applied to us for writs of certiorari and review which we denied. Defendant then sought the same relief from the Supreme Court of Louisiana which remanded the case to us to consider the questions of law raised by defendant. 396 So.2d 1347. We consider this as requiring that we review the exception of no cause of action and the action for summary judgment, and that we ascertain if they should have been overruled. We conclude that the exception of no cause of action was correctly overruled, and we are of the opinion, that the motion for summary judgment should not have been granted.

An appreciation of the facts of the case is essential. We hasten to add, however, on judicial review the District Court could not reconsider factual determinations of the administrative agency. LSA R.S. 23:1634 limited the District Court’s review to questions of law only. We believe that we are limited in the same way and by the same statute and also by virtue of the order directing us to consider the questions of law presented with this case in its present posture. With this limitation in mind, we will endeavor to explain the facts as we perceive them which are pertinent to the issues under consideration.

In 1979 members of the American Automobile Association were charged $26.50 annually for membership. Persons desiring new memberships were charged the regular annual fee plus a $9.50 enrollment fee. Enrolled members could give nonenrolled persons a gift membership at Christmas for a cost of only $26.50 because the $9.50 enrollment fee was waived. Obviously, it was easier for sales representatives to sell memberships costing only $26.50 than it was to sell memberships for $36.00 for the first year and apparently in some locales, some sales representatives sold some memberships under the guise of gift memberships. In November of 1978, A.A.A. issued a directive to the sales personnel in plaintiff’s office prohibiting the practice. In November of 1979 sales personnel were reminded that only bona fide gifts were eligible for waiver of the initial enrollment fee. This reminder was given at a sales meeting which plaintiff was supposed to attend but did not. Her absence was excused because her daughter was hospitalized and the child needed her mother’s presence. In December, plaintiff was determined to be turning in ordinary sales as gift memberships. Her employment was terminated. She then applied for unemployment compensation which was awarded. A.A.A. appealed and a contradictory hearing followed.

The personnel manager for A.A.A. appeared at the hearing for defendant and testified that plaintiff had been a regularly employed salesperson and that she was discharged on December 12, 1979 because she was selling ordinary memberships as gift memberships and also because she misrepresented the services that were available with membership. Specifically, he said that plaintiff told a prospect that commercial vehicles could be covered when in fact commercial vehicles were not eligible for service coverage. He also mentioned some other problems that apparently did not directly lead to the discharge. He acknowledged that the employer was aware that other employees engaged in the prohibited sales practice. He said:

... I will stipulate that in past years memberships, in some cases in the past years, I don’t have any numbers, or figures, or facts, were sold this way. This has happened before. I cannot say for certain if anyone was fired for it, disciplined, or whatever, but this year we made an extra special effort to make sure that this would not happen. That’s why this was written up in ‘78, because we were losing money on this. We are falsifying — the reps are falsifying the memberships. And to my way of thinking, the main issue is not what any other sales representative did. The fact is that this sales representative — the claimant — violated a company policy. In fact, deprived the company of what, $36 in dues, and misrepresented the membership. And I think that’s the main issue here. And I think it’s misconduct.

The plaintiff appeared at the same contradictory hearing and testified. She acknowledged that she had sold ordinary memberships as gift memberships but she denied doing any wrong. She said she had sold memberships in this fashion for years and that others did also. She said that she understood the practice was widespread and tacitly approved. She said that her immediate supervisor failed to tell her that the sales representatives had been reminded of the 1978 prohibitory policy notification at the November 1979 sales meeting which she justifiably failed to attend. She asserted that her discharge was unwarranted discrimination of her race and sex and the result of a personality clash between herself and a white female cashier and between herself and the sales manager.

The Appeals Referee made these findings in his written opinion:

The facts and evidence presented at the hearing show that the proximate case (sic) of the claimant’s discharge was a violation of a company policy regarding the sale of Christmas gift memberships. (Although the employer alleges that the claimant misrepresented membership benefits when selling a membership, there is insufficient evidence to substantiate this allegation. Moreover, this alleged incident was not the proximate cause of discharge.) The claimant sold gift memberships to individuals, putting the new member’s name as the recipient and her daughter’s name as the donor, whereas the recipient was actually purchasing the membership directly. The employing unit thus lost revenue in each case of $90.00. (sic) The claimant’s actions, although common in the past, were in contradiction to a directive issued in November 1978. Her actions were also in contradiction to instructions given at a sales meeting on November 15, 1979; although the claimant did not attend the meeting for a good personal reason, she neglected her obligation to learn the transactions of that meeting. It is concluded that the claimant’s discharge from employment was due to aggravated misconduct connected with her employment.

The ruling of the Appeals Referee and the record on which he based his conclusions was reviewed again by the agency administratively and affirmed. Plaintiff then sought judicial review and again the decision of the Appeals Referee was affirmed by the appropriate District Court in the judgment which plaintiff now seeks to have annulled.

Plaintiff initially used a summary procedure to seek annulment of the District Court’s judgment. By exception, the defendant protested the use of summary procedure. The trial court then entered a judgment correctly sustaining the exception which protested the use of summary procedure. Plaintiff then filed a petition to annul the judgment which had been entered on June 30, 1980 which affirmed the two administrative appeals. The judgment complained of was not appealed from and it is of course now final. It is within the framework of this factual background that we must consider the sufficiency of the petition for annulment of the trial court’s judgment and the defendant’s motion for summary judgment.

The petition, filed on September 29, 1980, alleged the facts of plaintiff’s employment, termination, application for unemployment benefits, the appeals within the Office of Employment Security and the application for judicial review and the result obtained on June 30, 1980 in the Civil District Court of Orleans Parish. These allegations were followed by the following allegations:

VII

Petitioner avers that the initial judgment of the Appeals Referree, (sic) as affirmed by the Board of Review and the District Judge, was obtained by fraud, illpractices and misrepresentation on the part of the American Automobile Association in the following respects:

a) Petitioner was terminated because of a violation of a directive in force in 1978 and 1979, with regard to the sale of Christmas memberships;
b) That the directive was issued in 1978, but in fact, the directive was openly violated with the knowledge and tacit approval of supervisory personnel, including Mr. Jack Hymann, District Manager of American Automobile Association;
c) That in 1979 the directive was again brought up, at which time Mr. Alfredo Cortez was the District Manager;
d) That notwithstanding the reissuance of the directive, it was again openly violated by many of the employees, none of whom were terminated with the exception of Gloriadme B. Gladstone;
e) That in 1979, the supervisory personnel were aware of the method that the Christmas memberships were sold, that in fact, the memberships were sold in violation of the directive and no action was taken against any other sales personnel;
f) That as a matter of fact, the District Manager at the time of the termination of Mrs. Gladstone, Mr. Alfredo Cortez, was attempting to find reason to terminate Mrs. Gladstone, and so advised other personnel;
g) That for a period of years, the method in which petitioner was selling Christmas memberships was, in fact, an established and accepted method, and she was not advised that she was doing anything improper until after she sold the memberships and after American Automobile Association accepted the memberships;
h) That these facts were intentionally not brought to the attention of the Appeals Referee;
i) Further petitioner avers that it was not until after the Appeals Referee had rendered a decision that she discovered the evidence necessary to bring this petition.

Based upon the foregoing allegations, the plaintiff asked the trial court to annul its own judgment of June 30, 1980 and to annul the decision of the Board of Review which rendered the final administrative decision adverse to plaintiff and to remand the case back to the Appeals Referee who rendered the first administrative appeal decision for the taking of additional evidence.

When it considered the exception of no cause of action, the trial court was required and permitted to consider only the petition itself and it was required to assume that the allegations of fact were correct. The court could ignore mere conclusions of the pleader not supported by allegations of fact. Viewed liberally and most favorably to the pleader, the petition may be viewed as contending that information was withheld from Appeals Referee which might have altered his conclusions and, on review, the altered conclusions of the Administrative Board of Review. Viewed in this fashion, the pleading can be regarded as stating a cause of action. We therefore conclude that the trial court’s decision concerning the exception of no cause of action was correct.

When it considered the alternative motion for summary judgment, the trial court properly had more data to consider. Defendant’s motion contended that “the pleadings and the quasi-judicial record of the Louisiana Department of Labor, Office of Employment Security, of record in this proceeding, show that there is no genuine issue as to material fact, and that defendant is entitled to judgment as a matter of law.” All of the mentioned documents were properly reviewable by the trial court in consideration of the motion. Additionally, plaintiff filed an affidavit from a lady who asserted that she was plaintiff’s former immediate supervisor. We consider it as an item that also could properly be considered in adjudication of the motion for summary judgment. We have considered all of these documents.

The only item we have not discussed previously is the affidavit. Lisa Gourgues stated under oath to plaintiff’s counsel that these facts were true:

1) That she was employed by American Automobile Association from August, 1978 through July, 1980;
2) That she is familiar with the method in which Christmas Gift memberships were sold, and the directives pertaining thereto in 1978 and 1979;
3) That she is also familiar with the grounds upon which Gloriadme B. Gladstone was terminated from American Automobile Association;
4) That in 1978, a directive, pertaining to the proper issuance of Christmas Gift memberships, was issued, but in fact, the directive was openly violated with the knowledge and tacit approval of supervisory personnel, in-eluding Mr. Jack Hyman, District Manager;
5) That in 1979, the directive was again brought up at a company meeting, at which Mrs. Gladstone was not present due to illness in her family;
6) That notwithstanding the reissuance of the directive, again the directive was openly violated by many of the employees, none of whom were terminated, with the exception of Gloriad-me B. Gladstone;
7) That in 1979 I was supervisor over Gloriadme B. Gladstone and was aware of the method by which she was selling Christmas memberships, and in fact, others were selling them in a similar fashion, which violated the directive;
8) That I was informed by other supervisory personnel at American Automobile Association that other management personnel, and more particularly, Mr. Alfredo Cortez, was attempting to find reason to terminate Mrs. Gladstone;
9) That American Automobile Association accepted the memberships which Mrs. Gladstone produced and then terminated her employment;
10) Prior to Mrs. Gladstone’s termination, Mr. Alfredo Cortez, the District Manager in 1979, told me that when Mrs. Gladstone was among the top producers in sales, he was willing to overlook the rules, but once she slowed down in the production of sales, he indicated that he was not going to overlook the rules, but instead, was going to strictly enforce them;
11) That prior to his becoming District Manager, Mr. Cortez in fact, wrote “bogus” Christmas memberships in the same or similar fashion as Glo-riadme B. Gladstone.

To resolve the issue before us concerning the motion for Summary judgment we compared the employer and employee’s pleadings, affidavits and all testimony before the administrative agency, including a statement made by plaintiff after its final administrative review, with plaintiff’s petition dated September 29, 1980 and the affidavit given by Lisa Gourgues. The most pertinent portions of the petition were sections “h” and “i” of paragraph 7. These two paragraphs, supported by the affidavit of Ms. Gourgues, were not opposed or contradicted by any affidavit filed in support of the motion for summary judgment. The record of proceedings before the appeals referee reflects that the issues raised by paragraph 7, “h” and “i” were not considered. We therefore conclude that the trial courts’ decision concerning the defendant’s motion for summary judgment was correct. Accordingly, we remand this case to Division “G” of the Civil District Court for the Parish of Orleans with instructions to conduct further hearings to determine whether or-not the plaintiff is entitled to relief under the provisions of Article 2004 of the La.Code of Civil Procedure.

AFFIRMED/REMANDED.