text:
    Ennis O. DONALD v. BIG THREE INDUSTRIES, INC., et al.
    No. 82 CA 0535.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 5, 1983.
    Writ Denied March 4, 1983.
    Milton Osborne, Jr., Baton Rouge, for plaintiff-appellant Ennis 0. Donald.
    Michael M. Christovich, New Orleans, for defendants-appellees Big Three Industries, Inc. and Highlands Ins. Co.
    Before COVINGTON, LANIER and ALFORD, JJ.
   ALFORD, Judge.

Plaintiff-appellant, Ennis 0. Donald, commenced this action against defendants, Big Three Industries, Inc., and its compensation insurer, Highland Insurance Company, for worker’s compensation benefits for injuries resulting from an automobile accident which occurred on October 12, 1979. Highlands paid Mr. Donald benefits of $142.00 per week from October 12, 1979, through January 17,1980, at which time all benefits ceased. This suit is for the recovery of additional worker’s compensation benefits for total and permanent disability, penalties and attorney fees.

From a finding of the trial court that plaintiff, Ennis 0. Donald, had received all of the worker’s compensation benefits to which he was entitled and that he was not entitled to penalties and attorney fees, this appeal was perfected.

Shortly after the accident, Mr. Donald was taken to the emergency room at the Lakewood Memorial Hospital in Morgan City where he was x-rayed and treated by Dr. Askew, who diagnosed plaintiff as having suffered contusions to the right hand, right forearm and right thigh. Dr. Askew released Donald stating that there was no permanent injury and that he could return to work.

Plaintiff testified that upon returning home he had his brother take him to the Baton Rouge General Hospital where he was examined by an emergency room doctor, who he thinks x-rayed him, and who gave him a prescription for pain. No objective evidence of any neurological or orthopedic impairment of a type which would lead to the present complaints of pain and which would be related to the accident were found by the emergency room physicians who saw Mr. Donald.

Dr. James E. Grace, a general practitioner, saw Mr. Donald on October 16, 19, 25 and November 1, 1979, and according to his deposition found no concrete evidence that plaintiff had suffered any serious injury. In Dr. Grace’s opinion, Mr. Donald was able to return to work as of November 1, 1979.

Mr. Donald’s family physician, Dr. Victor Harvey, referred him to Dr. William G. Hagemann, an orthopedic surgeon in Baton Rouge. Dr. Hagemann saw Mr. Donald in 1979 on November 6, 13 and 20 and stated that he could find no objective evidence of any orthopedic or neurological problem and felt that the patient was grossly exaggerating the pain. At the November 20 visit, Dr. Hagemann released Mr. Donald and stated that he could return to work the next week.

Subsequent to his visits to Drs. Askew, Grace and Hagemann, plaintiff was seen by Dr. John A. Thomas, another orthopedic surgeon, and Dr. Anthony Ioppolo, a nemo-surgeon, neither of whom could find any reason why Mr. Donald could not return to work as of the time of their examinations.

In February 1980, Mr. Donald was seen by Dr. Joseph Licciardi, an orthopedic surgeon in New Orleans, Dr. Licciardi concluded that plaintiff probably had a cervical or lumbosacral strain, although there was no orthopedic pathology regarding Mr. Donald’s condition. It was Dr. Licciardi’s opinion that plaintiff was not suffering from any problem which prevented him from returning to his work as a truck driver.

Dr. Reginald Alexander, who at the time was acting as a general practitioner at the Eden Park Community Center in Baton Rouge, saw Mr. Donald in June, July, August, September and December of 1980. Dr. Alexander diagnosed plaintiff’s injury as a lumbosacral strain and found no neurological deficits at the time of his examinations. While Dr. Alexander’s findings were essentially the same as the other doctors consulted, he was the only medical doctor to assert that Mr. Donald could not return to work as a truck driver.

In August 1981, Mr. Donald went to Dr. Gary Black, a chiropractor, who diagnosed a thoracic and lumbar myofascitis complicated by kyphotic cervical spine and pelvic instability. None of the six medical doctors who had examined Mr. Donald within the eight months following the accident found any such condition to be present.

Following a review of the medical testimony adduced at trial, along with the lay witnesses, the trial court came to the conclusion that Ennis 0. Donald did not incur any permanent disability as a result of the accident of October 12, 1979.

Plaintiff’s specification of errors and issues presented on appeal revolve around two central questions. First, was the evidence presented at trial sufficient to support the factual findings of the trial judge? And, second, did the trial judge incorrectly apply the law as to objective medical symptoms in cases dealing with subjective complaints of continued disability?

At the outset, we note that the findings of the trial court on factual issues in worker’s compensation cases are entitled to great weight and are not to be disturbed except on finding manifest error. Lanieux v. Iberville Services, Inc., 391 So.2d 1282 (La.App. 1st Cir.1980), writ denied 394 So.2d 1243 (La.1980). It is also clear that in Louisiana it is the burden of the plaintiff to establish a claim for worker’s compensation by a preponderance of the evidence. Juneau v. Tulane Industrial Laundry, 358 So.2d 347 (La.App. 4th Cir.1978); Gros v. Employers Insurance of Wausau, 338 So.2d 986 (La.App. 4th Cir.1976); Toomer v. Highlands Insurance Company, 295 So.2d 844 (La.App. 1st Cir.1974).

As noted above, the first doctor to see Mr. Donald found that he suffered multiple contusions but was unable to find any neurological or orthopedic damage. This same result was reached by several specialists who examined and treated Mr. Donald in the months immediately following the accident. With the exception of Dr. Alexander, whose specialty is obstretrics and gynecology, and who did not treat plaintiff until eight months after the accident and Dr. Black, a chiropractor who did not see plaintiff until one year and ten months after the accident, there is no medical evidence that the accident resulted in anything other than a possible lumbosacral strain. We find no manifest error in the factual findings of the trial judge.

Plaintiff argues that the trial judge incorrectly applied the law as to objective medical symptoms in cases dealing with subjective complaints of continued disability. Plaintiff relies principally on the case of Drummer v. Central Pecan Shell Company, 366 So.2d 1333 (La.1978). In Drummer the plaintiff fell from a stool on April 30, 1974, and suffered a low back injury. On June 20, 1974, she was examined by an orthopedist who found no objective symptoms of injury and who recommended that plaintiff return to work. Worker’s compensation benefits ceased on July 17, 1974.

Some eight months after the accident, in January 1975, plaintiff was x-rayed at a hospital in Baton Rouge. The x-rays revealed objective symptoms of lower back trouble which supported plaintiff’s complaints of continued pain. In addition, plaintiff was seen by a neurosurgeon in February of 1975 who confirmed that objective symptoms of low back injury existed.

In reversing the trial and appellate courts, Justice Dennis at page 1335 held, “Subjective results which are imputable to the original conditions are compensable under law.” In Mr. Donald’s case the objective symptoms found by the emergency room physicians who saw him were contusions to the right hand, forearm and thigh. No medical doctor, including Dr. Alexander, has been able to say that any neurological or orthopedic damage resulted from his accident. Indeed, the only diagnosis which in any way supports Mr. Donald’s claim is that of a chiropractor who did not see him until August of 1981. The preponderance of the evidence in this case, indeed the overwhelming evidence, leads this court to the belief that plaintiff sustained no injury causally related to the accident which supports his subjective complaints of continued pain and disability. Williams v. Cinclare Central Factory, 396 So.2d 301 (La.App. 1st Cir. 1981), writ denied 399 So.2d 621 (La.1981).

Based on the trial judge’s evaluation of plaintiff’s credibility, as well as other lay testimony, and upon a preponderance of the medical testimony in the instant case, we must conclude that the trial judge committed no manifest error in deciding that plaintiff was not entitled to worker’s compensation benefits for permanent disability.

Plaintiff-appellant argues that the trial court committed manifest error in deciding that he was not entitled to penalties and attorney fees.

The provision of L.R.S. 22:658 having to do with the penalties for failure to timely pay insurance benefits are stricti juris and are imposed in those instances where the failure to pay benefits timely is arbitrary, capricious, or without probable cause, Guillory v. Travelers Insurance Company, 294 So.2d 215 (La.1974).

When an insurer’s termination of compensation is based on competent medical evidence, as was the case here, the action is not arbitrary and capricious. Levine v. Liberty Mutual Insurance Company, 305 So.2d 665 (La.App. 3rd Cir.1974); Crawford v. Al Smith Plumbing and Heating Service, Inc., 352 So.2d 669 (La.1977).

According to Mr. David Blevins who testified on behalf of defendant-appellee, Highlands Insurance Company, benefits to Mr. Donald were stopped on January 17, 1980. This stoppage was based on the medical reports of Drs. Askew, Grace, Thomas, Hagemann and Ioppolo, all of whom indicated that Mr. Donald could return to work as of January 17, 1980.

The trial court was correct in dismissing plaintiff-appellant’s claim for penalties and attorney’s fees.

Having come to the conclusion that the trial court’s decision was based on a complete evaluation of the overwhelming medical testimony, as well as the lay testimony, and an evaluation of the plaintiff’s credibility, it must necessarily follow that we find the trial court was correct in finding that the plaintiff-appellant, Ennis 0. Donald, has received all of the benefits to which he is entitled and that he is not entitled to penalties and attorney’s fees and that his suit should have been dismissed as to all defendants.

Costs of this appeal are to be borne by appellant.

AFFIRMED.


source: Caselaw Access Project

author: REDMANN, Chief Judge. PER CURIAM.

license: Public Domain

text:
    Dorothy James ARAMBURO, et al. v. The TRAVELERS INSURANCE COMPANY, et al.
    No. 12921.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1983.
    Rehearing Denied Feb. 24, 1983.

      J. Paul Demarest, Favret, Favret, De-marest & Russo, New Orleans, for plaintiffs-appellants.
    Richard Creed, Jr., Owen, Richardson, Taylor, Mathews & Atkinson, Baton Rouge, for defendants-appellees.
    Before REDMANN, C.J., and LOBRANO and WARD, JJ.
   REDMANN, Chief Judge.

The Louisiana insurance statute, at R.S. 22:1406D(l)(a), provides that

No automobile liability insurance ... shall be delivered ... with respect to any motor vehicle registered ... in this state unless coverage is provided therein ..., in not less than the limits of bodily injury liability provided by the policy, ... for the protection of persons insured thereunder who are legally entitled to recover damages from ... operators of uninsured or underinsured motor vehicles because of bodily injury ...; provided, however, that the coverage required under this Subsection shall not be applicable where any insured named in the policy shall reject in writing the coverage or selects lower limits.

Thus the basic rule of the law is that the policy must have UM coverage in the amount of the bodily injury limits. The ordinary rule of burden of proof is that one who claims the benefit of an exception to the general law must show that he or she comes within the exception; Hortman-Salmen Co. v. White, 168 La. 1049, 123 So. 709 (1929).

Defendant Louisiana Insurance Guaranty Association (for Reserve Insurance Company, now insolvent) contends that the statute requires writing only for total rejection of UM coverage and not for selection of limits (but see International Ins. Co. v. Masur, 404 So.2d 1313 (La.App. 2 Cir.1981) writ denied (La.), 407 So.2d 733). It remains, however, the insurer’s burden to prove either rejection or else selection of lower limits if the insurer is to escape the statutory obligation that its policy shall contain UM coverage equal in amount to its bodily injury coverage.

The evidence in this case is that the application offered to the insured listed on its face “liability only” with three choices of limits; “package program—liability—physical damage” with three choices of limits (our insured selected “50/100/25”) and a blank for deductible; and “optional coverages” with three blanks. (Into those blanks were handwritten “uninsured motorists, passenger liab. [and] increased liability,” with premium amounts in the premium column of the form, but no limits shown). It may be quibbling to suggest that uninsured motorist coverage is not “optional” in Louisiana, and that the “option" is rejection or reduction of coverage. But on the reverse of the form the only “optional coverage” for UM is a printed “5/10” (with a printed “$30,” which was the premium charged on the face of the policy): the only other reference to UM coverage is a place for its rejection, and the statement “The laws of Louisiana now require that uninsured motorists coverage be included in all policies containing automobile or motorcycle liability insurance coverage unless specifically rejected by the insured.... The law provides that you must either pay the additional premium or sign the rejection below.” (Emphasis added.)

That form did not afford an applicant the opportunity to “select lower limits” because it offered no “selection” of limits. It is not subject to any other interpretation than that there are only two choices: “5/10” coverage or rejection. In effect it denied that there were any other available limits from which the applicant (the insured) could select. As a matter of law, no one can “select lower limits” unless higher limits are also available. Because no other limits were offered her, we reject the contention that our applicant “selected” 5/10 coverage by executing the application in evidence.

There is no evidence that, notwithstanding that the form offered only two choices, the motorcycle salesman offered other choices including that demanded by the statute. We therefore do not have the question whether such an oral offering would be admissible to enlarge the printed form’s offerings.

The jury’s finding on special interrogatory that plaintiff selected lower limits is unsupported by the record because, as a matter of law, the application form containing the sole evidence on that point does not suffice to discharge the insurer’s burden to prove selection of lower limits.

The jury fixed quantum in excess of the $50,000 UM coverage thus imposed by statute for lack of rejection or selection of lower limits.

The judgment is amended in quantum to $50,000, at appellee’s cost.

On Application for Rehearing

PER CURIAM.

Notwithstanding that the insurance guaranty association did not previously raise the issue, we agree with its argument on application for rehearing that La.R.S. 22:1382(l)(a) limits its liability to $49,900 and our decree is amended to that amount. Rehearing is otherwise refused, although we add, on the question of whether an insured’s selection of lower UM limits must be in writing, see also A.I.U. Ins. Co. v. Roberts, 404 So.2d 948 (La.1981).


author: GULOTTA, Judge.

text:
    Patricia Ford O’BRIEN, et al. v. DELTA GAS, INC., et al.
    No. 13278.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1983.
    Rehearing Denied Feb. 24, 1983.

      Gauthier, Murphy, Sherman, McCabe & Chehardy, Wendell H. Gauthier, Robert M. Murphy, Kenner, William A. Glennon, New Orleans, for plaintiffs-appellees.
    Johnston & Duplass, Robert M. Johnston, Stassi & Rausch, Joseph W. Rausch, New Orleans, for defendants-appellants.
    Before GULOTTA, WARD and CIAC-CIO, JJ.
   GULOTTA, Judge.

Defendant, NGO Chemical Division of Helmerich & Payne, Inc. (NGO), appeals from a jury award exceeding $3.1 million to plaintiffs — four adults and two children— for injuries from a residential gas explosion. We amend and affirm.

The explosion on May 29,1977, in a rented dwelling in Empire, Louisiana, injured plaintiffs, Rose and Glenn Fisher, Lawrence Latour, and Patricia O’Brien, and seriously injured her two young children, Brenda (age 7) and Timothy O’Brien (age 4), after an unsuspecting Mrs. Fisher lit a match while unaware that odorless natural gas had entered the residence through an uncapped gas line. The escaping gas was not detected because distillates or contaminants in the line had “masked” the odor of the chemical manufactured by NGO and added by Delta Gas, Inc. (Delta), the gas supplier, as a warning odorant.

Plaintiffs sued Mrs. Louise Hingle (lessor), Delta (supplier of the gas) and NGO (manufacturer of the odorant). NGO third partied Delta. Plaintiffs’ claims against Delta and its insurers were settled, and the matter went to trial on the main demands against the lessor and NGO, and on NGO’s third party demand against Delta.

Concluding that a defect in NGO’s additive and the negligence of the lessor, Delta and NGO had proximately caused the injuries, the jury awarded Brenda and Timothy O’Brien $1.5 million each, Patricia O’Brien and Lawrence Latour $50,000.00 each, and Glenn and Rose Fisher $25,000.00 each. It further found NGO was not entitled to reimbursement from Delta.

Because of plaintiffs’ pre-trial release of Delta, the trial judge reduced the awards by one-third and rendered judgment in favor of plaintiffs and against Mrs. Hingle and NGO. He further dismissed NGO’s third party demand against Delta. Mrs. Hingle has not appealed, and the judgment is now final as to her.

Appealing, NGO complains of the following errors: 1) improper allotment of peremptory challenges on voir dire; 2) erroneous admission into evidence of NGO’s odo-rant sales brochure; 3) improper jury instructions; 4) manifest error in the jury’s findings that NGO was negligent and its product defective; 5) erroneous denial of NGO’s exception of prescription; and, 6) excessiveness of the verdicts.

Delta has filed a motion to dismiss NGO’s appeal, which we now consider before turning to the merits of NGO’s contentions.

MOTION TO DISMISS

Delta moves to dismiss NGO’s timely filed appeal “to the limited extent of the third party demand against Delta....” Delta claims NGO’s appellate brief only addresses errors relating to plaintiffs’ principal demands and raises no objections concerning the trial court’s dismissal of NGO’s third party claim against Delta. In support of its motion, Delta cites Rule IX-A of the former appellate court rules, now embodied in Rule 1-3 of the Uniform Rules, Courts of Appeal, effective July 1, 1982, which provides this court “... will review only issues which were submitted to the trial court and which are contained in the specifications or assignments of error, unless the interest of justice clearly requires otherwise.”

The rule relied on by Delta concerns the scope of our review, not the appellant’s right to appeal. Rules 1-3 and 2-12.4 merely provide that this court, in its discretion, may consider as abandoned any un-briefed specification or assignment of error; they do not authorize the dismissal of a timely filed appeal. Further, because the issues in the main and third party demands are so closely related, we do not deem any issues abandoned.

Accordingly, the motion is denied.

PEREMPTORY CHALLENGES

The trial judge allowed six peremptory challenges to plaintiffs, six to NGO, and six to Delta. According to NGO, because of the pre-trial settlement between Delta and plaintiffs (whereby Delta acquired an interest in plaintiffs’ recovery) these parties had “identical” interests and were only entitled to share six challenges between them instead of receiving six challenges each. We disagree.

The trial judge was confronted with a “three-sided” case. Delta’s pre-trial settlement agreement specifically provided it was not to be construed as an admission of Delta’s liability. Although admittedly free from financial liability in this litigation, it was in Delta’s interest to protect its business interests and public relations from the harmful effect of a finding of fault as a gas distributor. Thus, despite the pre-trial settlement, Delta remained adverse to plaintiffs.

Further, in response to NGO’s plea of prescription, plaintiffs urged that Delta and NGO were solidarity liable and that the timely filing of the suit and service of process on Delta interrupted prescription as to NGO. Under these circumstances, plaintiffs bore the burden of showing that Delta and NGO were joint tortfeasors, and thus remained opposed to Delta. It is also noteworthy that the agreement of partial reimbursement to Delta was made only by Mr. Latour and the O’Briens, and not the remaining two plaintiffs, Rose and Glenn Fisher.

NGO, of course, was adverse to all plaintiffs and Delta. Clearly, all the litigants had contradictory interests in establishing or negating liability.

Under the circumstances, we find no error in the trial court’s allocation of peremptory challenges. See LSA-C.C.P. Art. 1764.

ADMISSIBILITY OF EVIDENCE

Over NGO’s objection, plaintiffs introduced into evidence a copy of an odorant sales brochure, “NGO’s Captan Manual, the Whif of Life”, distributed by NGO to gas companies to promote NGO’s expertise as an odorant manufacturer. NGO contends the brochure was irrelevant and prejudicial because it was published two years after the accident and had never been distributed to Delta.

Plaintiffs’ cause of action against NGO rests on claims of defects in the odorant, NGO’s sale of an improper type of odorant to Delta for its particular system, and NGO’s failure to warn Delta that the presence of distillates in the gas lines could render the odorizing properties of the product ineffective. Clearly, the information in NGO’s sales brochure about the chemical properties of the odorant and NGO’s manufacturing history, expertise, and readiness to assist its customers in solving their odo-rant “problems” was germane to plaintiffs’ cause of action. We conclude, therefore, the publication was relevant to the issues in this case.

Notwithstanding the pamphlet was published two years after the accident and never distributed to Delta, it sets forth company policies that existed prior to the accident. Moreover, NGO’s claims of expertise in the brochure mirror the company’s motto on invoices and drums of the odorant sent to Delta: “ODORANT SPECIALISTS TO THE GAS INDUSTRY”. Under these circumstances, we conclude the brochure was properly admitted in evidence.

Accordingly, we find no error in the trial court’s ruling.

JURY INSTRUCTIONS

We further find no merit to NGO’s argument that the trial judge committed reversible error in his jury instructions.

Initially, we note that NGO made only a “blanket” objection to the charges in the trial court, instead of a specific one stating the grounds of the objection as required by LSA-C.C.P. Art. 1793. See Caldwell v. Parker, 340 So.2d 695 (La.App. 4th Cir. 1976), writ denied 342 So.2d 1120 (La.1977); Dixie Life Ins. v. Pacific Mut. Life Ins., 416 So.2d 139 (La.App. 4th Cir.1982). Nonetheless, rather than view the objection as waived, we consider NGO’s contentions on the merits.

We reject NGO’s claim that the trial judge improperly instructed the jury that each party, including NGO, had the burden of proving its case by a preponderance of the evidence. The questioned charge is not an erroneous statement of law in the context of NGO’s third-party claim against Delta. At the start of his instructions, the judge made it clear that NGO had raised a third-party claim against Delta seeking reimbursement by Delta for damages NGO might be ordered to pay plaintiffs. Later, the trial judge specifically noted that NGO had the burden of proof concerning Delta’s alleged misuse of the odorant. The court’s instructions were thus a proper statement of the law concerning NGO’s burden of proof as third-party plaintiff. NGO has no standing to complain of errors concerning Delta’s burden of proof.

NGO further complains the trial judge erred in charging that NGO was subject to LSA-R.S. 33:4522, which requires gas distributors to malodorize gas. After reading this charge, the judge stated: “In a moment I will tell you the standards which apply to defendant NGO’s conduct in this particular suit...” The judge then went on to state properly the standards applicable to a manufacturer of products. Although we agree that reference to LSA-R.S. 33:4522, vis a vis NGO, may have been confusing to the jury, the erroneous reference was clarified by the judge’s instruction on the standards applicable to a manufacturer. Furthermore, the response to the interrogatories is supportive that the jury was not confused and made findings based on the evidence in this record. If indeed the charge was erroneous, it was harmlessly so.

“R.S. 33:4522: ‘Malodorants required. Every person engaged in the business of handling, storing, selling, or distributing natural or other odorless gases, except liquified petroleum gases, shall malodorize the gas or gases by the use of malodorant in accordance with pipeline safety rules and regulations promulgated by the assistant secretary of the office of conservation of the Department of Natural Resources.’

Finally, we find no error in the judge’s failure to give NGO’s requested charges on NGO’s duty to warn Delta, Delta’s status as a knowledgeable purchaser, and Delta’s duties to malodorize and sample the gas and to exercise extraordinary care in handling dangerous products. The substance of these charges was covered in the judge’s instructions on Delta’s possible misuse. Under the circumstances, we find no prejudice to NGO from the jury instructions.

“The ordinarily prudent person will normally obey the statutes which apply to his conduct, but in exceptional circumstances, even a violation of the statute may be reasonable. You must consider, in the light of all the circumstances, whether an ordinarily prudent person in Defendant’s position would be reasonable in violating the statute. If so, then the violation is not sub-standard conduct. But if not, the violation is unreasonable, and therefore below the standard of care to which we hold the Defendant in this case.”

MANIFEST ERROR

It is undisputed that contaminants or distillates in Delta’s gas line caused “fading” or “masking” of NGO’s odorant resulting in no warning to plaintiffs of the danger of explosion. The primary issue before the jury, however, was whether this loss in odor resulted from the acts or omissions of Delta or NGO, or a defect in the odorant.

Delta odorized its gas through four stations where the odorant entered the gas flow. Delta purchased the odorant in 55 gallon drums from NGO, and each month Delta employees filled the 12 gallon tanks of the odorization equipment. On May 25, 1977, four days prior to the explosion, the odorization tanks were filled. Two days after the accident, they were checked again and found to contain odorant and to be operating properly. According to Delta employees, the “sight” glasses on the odori-zation machines were checked several times monthly, and there had never been an occasion where an odorant tank had been allowed to run dry.

Gaylon Simmons, Delta’s president at the time of the accident, testified the company was putting almost twice the recommended dose, because it was aware that condensation in the gas line could reduce the odo-rant’s effect. Significantly, however, according to Simmons, neither Delta nor others in the gas industry knew that distillates could completely obliterate or “scrub out” the odorant in 1977. Relying on NGO’s expertise about odorants, he felt he “had nothing to worry about”, or else he would have “looked for” another type of odorant. Although Delta had dehydration plants and systems to extract free liquid condensates from the gas stream, it did not take physical samples of the gas to check on the odorant content in 1977;

John A. Kennedy, an expert on odorants as they relate to the causes and origins of gas explosions, was of the opinion that the odorant added by Delta at the time of the accident was defective and that another compound, dimethyl sulfide, should have been added to the product to give the odo-rant more strength and stability in areas where there was some absorption or “scrubbing out”. According to Kennedy, it was Delta’s responsibility, “in conjunction with” NGO’s expertise, to eliminate the contaminants that account for “fading”. Kennedy was of the further opinion that a warning should have been placed on the drums stating that condensates or gas distillates could obliterate the odorant. This testimony was significant in light of the acknowledgement that NGO had no warning label on the odorant drums to warn gas company personnel that condensates could “scrub out” the odor.

NGO’s president, Seth T. Roberson, testified the odorant shipped to Delta came from a 10,000 gallon batch manufactured by NGO that had been tested and found to conform to standards. According to Roberson, this product is a stable compound having the highest odor per pound of NGO’s odorants, and does not break down under normal conditions, although its odor can be absorbed by condensates in the gas line. This witness testified there was no necessity for NGO to print a warning on the drums because, Delta, like other gas companies, is a sophisticated buyer and should have known the effect of condensates on the odorant. Roberson testified NGO has no control over the product once it is shipped, and the gas company must make certain its odorizing equipment is properly running.

0. John Jacobus, a chemist and statistical analyst, was of the opinion that the lack of odor was not caused by a defective odorant but by Delta’s failure to add the odorant uniformly into its gas lines. Nonetheless, although he felt there were “severe questions as to whether Delta’s gas was properly odorized”, Jacobus could not form an opinion “positively or totally negative”.

Finally, the jury had the benefit of testimony of J. Roger Craddock, an expert in gas company operations and odorization practices, who stated it was “common knowledge” in the gas industry that distillates can affect odorant levels and that gas companies must monitor the gas continuously to determine the odorant level. He further testified that the recommended amount of odorant for a gas system depends on the amount of gas flow; and that the gas company has the responsibility to remove condensates.

The evidence considered, we cannot say the jury erred in finding concurrent negligence by NGO and Delta. Although there is ample evidence to support the jury’s conclusion that Delta was negligent in failing to odorize the gas as required by statute, to remove the condensates from its lines, or to monitor the odorant level properly through gas sampling, it does not necessarily follow, as argued by NGO, that Delta’s fault was the sole cause of the explosion.

The evidence clearly established that the product became ineffective on contact with the condensates in Delta’s gas lines. The testimony of Delta’s employees that a more than sufficient amount of odorant was added to the line before, during, and after the explosion, supports a conclusion that, despite Delta’s normal use of the chemical, NGO’s product failed to produce the required odor in Delta’s lines.

Notwithstanding NGO’s position that gas companies are sophisticated purchasers aware of the effect of condensates on odo-rants, the jury may have believed the testimony of Delta employees that they were unaware that distillates in gas lines could totally obliterate the effectiveness of the odorant in 1977. The testimony of Delta personnel was that they were aware that the odor could be reduced by condensates in the line but not completely obliterated. Based on this credibility determination, the jury could have reasonably concluded NGO’s failure to warn Delta of this phenomenon was a cause of plaintiffs’ injuries.

A manufacturer must give warning of any danger inherent in his product’s normal use that is not within the knowledge of an ordinary user. Hebert v. Brazzel, 403 So.2d 1242 (La.1981); Chappuis v. Sears Roebuck & Co., 358 So.2d 926 (La.1978). The manufacturer has a duty to know all of the dangerous qualities of the product, and is responsible for making those dangers known to purchasers, even though the product itself is not inherently dangerous. Penn v. Inferno Manufacturing Corporation, 199 So.2d 210 (La.App. 1st Cir.1967), writ refused 251 La. 27, 202 So.2d 649 (1967).

In our case, NGO’s duty to warn that distillates can render the odorant completely ineffective is particularly important because NGO holds itself out as “odorant specialists to the gas industry”, and its product, though not dangerous alone, is used in connection with a dangerous instrumentality, explosive gas. As an odorant specialist, NGO knew of the effect of distillates or condensates on its product, and had a duty to warn its customers, despite their sophistication, that high distillate content gases require more malodorant.

NGO’s breach of its duty to warn Delta adequately in this case was a cause in fact of plaintiffs’ injuries, which were within the ambit of the risk sought to be avoided by observance of the duty. Although the natural gas industry may be technologically advanced, the unsophisticated consumers who ultimately use the product in their homes rely on the combined expertise and cooperation of both the odorant manufacturer and the gas company for adequate warning of leaking explosive gas. An odo-rant manufacturer must be held to a high standard of care in warning gas companies of the limitations of its vitally important product affecting public safety.

Accordingly, considering the evidence, we find no manifest error in the jury’s findings.

PRESCRIPTION

Because suit was not filed against NGO within the prescriptive period, plaintiffs could avoid a dismissal against NGO only if NGO and Delta were joint tortfeasors and, as such, solidarily liable. At the conclusion of plaintiffs case in chief, NGO unsuccessfully raised an exception of prescription based on plaintiffs’ failure to establish a solidary obligation. According to NGO, the only evidence of Delta’s negligence was adduced by NGO in support of the third party demand after plaintiffs had rested. We disagree.

Before resting, plaintiffs established that Delta had a statutory duty to odorize the gas and that the gas flowing into the Hingle residence was odorless. Further, Plaintiffs’ expert, Kennedy, testified that NGO’s odorant was defective and recognized that Delta had a responsibility “in conjunction” with NGO to remove distillates from the gas line that can account for “fading” of the odorant. Furthermore, Delta’s foreman, called by plaintiffs, testified Delta had not taken physical gas samples bi-monthly to check the odorant level as required by Delta’s own maintenance manual.

This evidence considered, we conclude plaintiffs established a prima facie case of Delta’s negligence making it solidarity liable with NGO. The jury had ample evidence to conclude that Delta was negligent in distributing odorless gas to the Hingle resident in violation of its statutory duty to odorize the gas, and that the risk and harm encountered by the plaintiffs in the gas explosion fell within the scope of protection of the odorization statute. There was also sufficient evidence to find Delta had negligently failed to monitor the system properly to make sure the gas was odorized.

Because plaintiffs successfully carried their burden of proof to establish solidary liability between the defendants, timely service upon Delta within the one-year prescriptive period interrupted prescription as to NGO. The trial judge correctly denied NGO’s pleas of prescription. See LSA-C.C. Art. 2097; Clements v. State Dept. of Health, Social and Rehabilitation Service, 391 So.2d 66 (La.App. 4th Cir.1980), writ denied 396 So.2d 932 (La.1981); Palmisano v. United States Fidelity & Guaranty, 371 So.2d 386 (La.App. 4th Cir.1979), writ granted 374 So.2d 663 (La.1979), dismissed per settlement 376 So.2d 155 (La.1979); Wick v. Sellers, 309 So.2d 909 (La.App. 3rd Cir.1975), application denied 313 So.2d 828 (La.1975).

Accordingly, we find no error in the verdict casting NGO and Delta in judgment.

QUANTUM

Rose Fisher

This twenty-two year old plaintiff suffered burns on 10-15% of her body, including first and second degree burns on her face and chest, and second degree burns on both arms.

Mrs. Fisher was hospitalized at Charity Hospital in New Orleans for one week after the accident, where she received intravenous medication and underwent daily whirlpool treatments to debride her burns with the application of silvadene cream twice daily. After her discharge, she was seen as an outpatient twice, and underwent another whirlpool treatment, silvadene application and instruction in home exercise treatments. A Charity Hospital bill in the sum of $342.02 remained unpaid.

Plaintiff testified that when released from the hospital she was unable to move her hands. Plaintiff exhibited scars on her back and arms to the jury.

Considering the extent of Mrs. Fisher’s burns, painful treatment, hospitalization, and scarring, we cannot conclude the jury abused its discretion in awarding her $25,-000.00 in general damages.

Glenn Fisher

Twenty-eight year old Fisher sustained second degree burns on approximately 12% of his body, including his arms, chest and left foot.

Like his wife, he was hospitalized for one week after the explosion and received intravenous fluids, whirlpool treatments and sil-vadene applications. On discharge, he used a cane because walking on his left foot was painful. He received outpatient treatment on two occasions.

At the time of the accident, Fisher was earning $3.90 per hour as a welder but was unable to work for six weeks because of his injuries. An unpaid Charity Hospital bill in the sum of $361.50 was introduced into evidence.

Considering the injuries and loss of income, we find no abuse of the jury’s discretion in awarding $25,000.00 in general damages to this plaintiff.

Patricia O’Brien

This twenty-five year old plaintiff sustained second degree burns on her forehead, both sides of her face, chin, ear, right arm, left forearm, palm, right knee and ankle, left leg, and third degree burns on her right hand.

Mrs. O’Brien was hospitalized at Charity Hospital for one week after the explosion, and then transferred to St. Bernard General Hospital for two more weeks until June 17,1977, before being followed as an outpatient.

While hospitalized, plaintiff received a daily regimen of whirlpool treatments, scrubbing of her bums with a wire brush, and dressings with silvadene cream. She also received antibiotics and pain medication. Her medical records indicate she experienced difficulty manipulating the third finger of her right hand and became distressed over the loss of her belongings in the explosion and reports of her daughter Brenda’s hallucinations.

On discharge from the hospital, dressings were required over third degree burns on plaintiff’s right hand and unhealed second degree bums on her left forearm. Although the record does not specifically mention scarring, it can be presumed from the severity of this plaintiff’s burns.

Considering the period of her hospitalization and her pain and suffering, we cannot say the jury abused its discretion in awarding this plaintiff $50,000.00 in general damages.

Lawrence Latour

Damage to this plaintiff was established only through his testimony, in which he described his injuries, “Bums over various parts of my body; my face, arms, my chest and legs.”-

The force of the explosion had blown Latour outside the home where he remained in “a daze” immediately afterward. After emergency treatment, including a shot for pain, Latour was transported to Charity Hospital where his burns were “scrubbed” with a wire brush and dressed. He was not hospitalized but received “outpatient treatment”.

Plaintiff’s medical records were not introduced at trial, and the major portion of his testimony concerned not his own injuries, but his efforts in assisting medical personnel and his wife, Patricia O’Brien, in giving physical therapy to the severely injured O’Brien children during their prolonged treatment.

Considering the facts and circumstances, we conclude the $50,000.00 general damage award to this plaintiff constitutes a clear abuse of the jury’s discretion. See Reck v. Stevens, 373 So.2d 498 (La.1979); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). Although Latour was obviously burned, it is apparent from his sketchy testimony that his injuries were not so severe as to require extensive treatment. There is no evidence as to loss of income or residual scarring. Perhaps the jury’s award may have been motivated by sympathy for Lat-our’s admirable personal sacrifice in treating the O’Brien children. In view of the actual injuries suffered, however, we are compelled to reduce the award to the sum of $15,000.00, which we deem to be “the highest point” reasonably within the jury’s broad discretion.

Brenda O’Brien

Brenda, seven years of age when injured, sustained second degree burns over 40% of her body on her chest, back, face, and both legs, making her “unrecognizable” to her mother. Mrs. O’Brien testified that immediately after the explosion her children’s skin “was just hanging from them ... like raw meat...”

Brenda was hospitalized at Charity for nearly two months from the date of the accident on May 29 until July 27,1977. She received intravenous fluids and medication, blood transfusions, a high calorie diet, hydrotherapy treatment twice-daily to debride her burns, and applications of silvadene cream. Her early treatment at Charity was complicated by a week-long episode, of psychosis and hallucinations, and she became critically ill from an infection in the blood stream. Brenda suffered further from vomiting, lethargy, and blood loss. Despite her major complications, however, her condition stabilized after the first month.

Although Brenda’s skin healed without skin grafts, her deep second degree burns produced severely disfiguring “hypertrophic”, raised scar tissue on both sides of her face, on her chest, and on both arms, hands and legs. Because hypertrophic scar tissue contracts as it matures, Brenda developed “contracture” deformities and experienced problems bending her left elbow and straightening her knee.

On February 9, 1978, at the Shriner’s Burn Institute in Galveston, Texas, Brenda was provided with orthopedic shoes, elasticized clothing and a facial mask to be worn 24 hours a day to flatten her scars.

While hospitalized in Galveston from February 23 until March 8, 1978, Brenda received physical therapy to stretch her limbs and correct her contractural problems. She was discharged with splints on her legs and hands and followed thereafter in April, July and November, 1978. Brenda’s therapy continued at home in the interim under the direction of her mother and Mr. Latour who had received instruction in Galveston. The children’s special clothing was not comfortable, and Mrs. O’Brien testified that Brenda and her brother “hollered” when their elastic suits were put on and taken off them several times a day between baths.

By February, 1979, Brenda’s scars had matured and the pressurized clothing and special shoes were discontinued. In May, 1979, she underwent surgery to remove the scar tissue across her elbow that had prevented full extension of her arm and to release bands of tight scar tissue between her fingers on both hands. She was seen at the Galveston Clinic again in October, 1979, August, 1980, and February, 1981.

At trial, five years post-accident, Brenda’s treating plastic surgeon, Dr. Donald H. Parks, testified that Brenda’s scars have “matured” but she will require “careful follow-up”. Most of Brenda’s facial skin has undergone extensive and permanent granular changes of texture and darkening, particularly her forehead, and she has scars on both sides of her face, with a marked one extending along the right side of her jaw. There is also marked hypertrophic scarring between her breasts, and on her right shoulder, back, and both arms and legs. Dr. Parks recommended future surgery on her left wrist, both elbows and ankles, and her left knee to relieve contractions of the scars over those joints. He did not specify a time after which no further treatment would be necessary.

Dr. Parks further testified that Brenda has no “functional” limitations as far as “ability to perform motor skills” or to “function in life.” The limitations on her activities are “minimal” and he has encouraged her to participate in all activities. Nevertheless, he stressed that scar tissue is not “normal” skin since it lacks hair follicles, oil and sweat glands. Because Brenda’s skin would crack in dry humidity and is prone to injury in sunlight, it will become necessary to restrict her activities. According to Dr. Parks, Brenda’s scars are permanent. He foresaw little improvement in her appearance.

In addition to physical pain, Brenda has suffered psychologically from her physical disfigurement. Dr. Carmen Ramos, Brenda’s treating psychiatrist, testified Brenda has contended with name-calling, such as “scar face” by her classmates, and will have more problems during the dating period. She has reacted to her problems by becoming depressed through negative feelings about herself and by “regressing” through fantasizing about being popular. Concerning serious “coping” problems Brenda might encounter, Dr. Ramos saw “evidence of psychotic thought process” in the sense of being “out of touch with reality.” This physician testified, however, that Brenda has improved in therapy since 1980 and is “coping” better with her problems and doing well in school. She testified that Bren-. da has had more problems than her brother in facing surgery in the past, but now has a “sober” attitude about future surgery. It is “possible” that Brenda will cope with her situation through “adequate” care, but Dr. Ramos could not “predict it”.

Mrs. O’Brien testified that Brenda and her brother lost a year of school because of the accident and that Brenda has suffered from teasing and “locks herself in her room” to avoid associating with people or being seen.

Although Brenda’s scarring affects her cosmetically and not functionally, it does not lessen the extent of physical and psychological pain she has suffered and will suffer from her prolonged, painful medical treatment and permanent disfigurement. Despite Brenda’s attendance in public school and the potential for leading a useful life, a reasonable conclusion can be made that her appearance subjects her to socialization problems.

We are mindful that there is an absence of evidence of anticipated loss of future earnings resulting from functional disability; nonetheless, a reasonable conclusion might be reached that cosmetic deformity might have an adverse effect on one’s ability to gain employment. Considering the seriousness of the burns and the scarring, and cognizant that the jury observed the scars in chambers, we cannot say that the $1,500,000.00 general damage award (reduced by the trial judge to the extent of Vs) is an abuse of the jury’s discretion.

Timothy O’Brien

Timothy, four years old when injured, suffered second and third degree burns over 35% of his body, on his face, arms, hands, abdomen, legs and feet.

He was hospitalized at Charity Hospital for three months (from May 29 to August 29, 1977), and underwent painful treatments similar to his sister’s, including whirlpool baths to debride his burns, intravenous medication, transfusions, and a high calorie diet. Timmy received intravenous fluid because of massive loss of blood plasma from his burns. Skin grafts were required on the back of both hands, and on his thigh, lower leg, and foot.

Like Brenda, Timmy began treatment at the Shriner’s Burn Institute in Galveston on February 9, 1978, under Dr. Parks’ care. Timmy had hypertrophic scar tissue in the burned areas, including contracting scar tissue across his right elbow, “webbing” scar tissue on both hands, and a contracture on his right foot causing his toes to curl upward. He was fitted with splints, elasticized wraps and tightly fitting orthopedic shoes to put pressure on his scar tissue and toes.

Timmy was readmitted to the hospital in Galveston on February 23, 1978, when he began vigorous therapy and exercise to straighten his contractures. This procedure involved hanging weights from his right arm to stretch the scar tissue. Timmy was fitted with an elasticized garment and mask to be worn 24 hours a day.

After discharge from the hospital on March 8, 1979, Timmy continued painful therapy at home under the direction of his mother and wore the elasticized suit continuously except when bathing. He returned for follow-up examinations in Galveston in April and July, 1978, and February, 1979, when the orthopedic shoes and elasticized suit were discontinued.

From May 22 until June 14, 1979, Timmy was again hospitalized in Galveston for hand surgery to correct the webbing deformity and foot surgery to reposition his toes. The foot operation involved the use of a skeletal suspension device put in place for ten days with metal pins to reposition his toes through force. He was fitted with orthopedic shoes to be worn 24 hours a day, and thereafter has been followed as an outpatient.

At the time of trial, five years post-accident, Timmy bore permanent hypertrophic scars. His face has a granular irregularity in the upper lip and right cheek and a mottled discoloration on the right side. He has a “rather heavy disfiguration” and loss of hair in the front of the right ear. There is a hypertrophic scar at the angle of his jaw on the right side of the neck. Timmy has “extremely extensive” and “permanent” scarring on the right upper arm extending down to his fingertips, a slight recurrence of webbing between the thumb and index finger on his right hand, and a tight band of scar tissue across the right wrist extending to the thumb. Despite pri- or surgery to his right foot, Timmy’s little toe remains deformed. His left hand will remain scarred, and Timmy will have a “major permanent deformity” of the left hand.

Because Timmy has considerable growth potential, it may be necessary to carry out future surgical releases over the top of his right foot as new contractures develop. Further operations could be performed to reconstruct sideburns in front of his right ear and to remove some of the scar from the right side of his jaw. Timmy will also require further operations to remove the webbing between his right thumb and index finger and to relieve the tightness along his right elbow. The abnormal texture of his skin cannot be altered surgically.

Although Timmy, like his sister, has minimal “functional” limitations in performing motor skills and has been urged to participate in activities, he will be required to limit his exposure to sunlight and dry humidity because of scarring. Dr. Parks described Timmy and Brenda as “children that have made the best of their situation....”

Dr. Carmen Ramos, the psychiatrist, felt that Timmy was experiencing problems, including name calling such as “burn face” by his classmates, a “psychological conflict” resulting in avoidance of painful feeling about himself, and difficulties with his attention span. His school work has deteriorated, and he has acted immaturely at home. Mrs. O’Brien testified Timmy is “letting it get him real bad” and “stays to himself”. Dr. Ramos suggested Timmy become involved in therapy, though she did not think it would be “long term”. Like Brenda, with “adequate care” Timmy might be able to cope in “an improving way”. Although she could not predict it, this physician hoped that after therapy Timmy would have enough inward strength to cope with his problem.

As in Brenda’s case, we are mindful that there exists an absence of evidence of anticipated loss of future earnings resulting from functional disability. Nonetheless, in the jury’s mind, a reasonable conclusion could have been reached that cosmetic deformity might have an adverse effect on Timmy’s ability to gain employment. Timmy has suffered severe physical and psychological damage resulting in disfigurement that will hamper his socialization.

Considering the serious burns, scarring, and deformities (observed by the jury in the judge’s chambers), we cannot say the $1,500,000.00 general damage award (reduced by the trial judge to the extent of %) constitutes an abuse of discretion.

DECREE

Accordingly, we amend the judgment as follows:

The judgment in favor of the plaintiff, Lawrence Latour, and against NGO Chemical Division of Helmerich & Payne, Inc. and Mrs. Louise Hingle in the sum of THIRTY THREE THOUSAND, THREE HUNDRED THIRTY THREE AND 33/100 ($33,333.33) DOLLARS is reduced to the sum of TEN THOUSAND AND NO/100 ($10,000.00) DOLLARS, together with legal interest from date of judicial demand until paid and for all costs.

In all other respects, the judgment is affirmed.

AMENDED AND AFFIRMED.

      . Plaintiffs received the following amounts in settlement:
      Brenda O’Brien $1,000,000.00
      Timothy O’Brien 1,000,000.00
      Patricia O’Brien 12,500.00
      Lawrence Latour 12,500.00
      Glenn Fisher 12,500.00
      Rose Fisher 12,500.00
      Lawrence Latour, Patricia O’Brien and her two children also agreed to divide with Delta and its insurers “any recovery made: from the action against Helmerich & Payne between $800,-000.00 and $1,600,000.00 ... on funds received from Helmerich & Payne after any division because of joint tortfeasor releases.” Glenn and Rose Fisher, however, made no such agreement.
      At trial, the following stipulation was read to the jury:
      “Before trial, plaintiffs made settlement with Delta Gas, Inc. and its insurers and signed Releases releasing them from further claims in this lawsuit.... As part of this settlement agreement, it was also agreed that Delta Gas, Inc. and its insurers would have an interest in the plaintiffs’ remaining claims against Helme-rich & Payne, Inc. so that if plaintiffs receive a judgment against Helmerich & Payne, Inc. following this trial, Delta Gas, Inc. and its insurers could receive a part of that judgment and get back part of what they had paid to the plaintiffs.”

      . Judgment was rendered in favor of each plaintiff as follows:
      Brenda O’Brien — $1,000,000.00; Timothy O’Brien — $1,000,000.00; Patricia O’Brien— $33,333.33; Lawrence Latour — $33,333.33; Glenn Fisher — $16,666.67; Rose Fisher — $16,-666.67.

      . Rule 2-12.4 of the Uniform Rules, Courts of Appeal provides in pertinent part:
      “All specifications or assignments of error must be briefed. The court may consider as abandoned any specification or assignment of error which has not been briefed.”

      . In the trial court, NGO unsuccessfully moved for a mistrial based on unfair allotment of peremptory challenges. NGO’s applications for supervisory writs from the denial of its motion were denied by this court and the Supreme Court.

      .LSA-C.C.P. Art. 1764 provides: “Each side is allowed six peremptory challenges. If there is more than one party on any side, the court may allow each side additional peremptory challenges, not to exceed four. Each side shall be allowed an equal number of peremptory challenges. If the parties on a side are unable to agree upon the allocation of peremptory challenges among themselves, the allocation shall be determined by the court before the examination of the voir dire.”

      . At the conclusion of the charge conference, NGO objected as follows:
      “NGO at this time objects to the failure of the Court to utilize the proposed special charges and we would provide for the record the numbers but due to the fact of a change in alignment it wishes the record to reflect these charges and will provide them to the court. One other point, I wish to place in the record at this time my objection, reurge my objection giving the Jury Interrogatories and Jury Charges based on their opinion of the evidence presented in the case.”

      . LSA-C.C.P. Art. 1793 provides, in pertinent part:
      “A party may not assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating specifically the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.”

      . The objectionable charge reads:
      “The first thing that you should know about the law is that the Plaintiffs and the Third-Party Plaintiff, Helmerich & Payne [NGO], in this action must each prove their cases by a preponderance of the evidence. This means that the Plaintiffs must convince you that, when the evidence is taken as a whole, the facts or causes sought to be proved are more probable than not. If they fail to' prove or establish any essential element of their case by a preponderance of the evidence, then you must find that they have failed to prove their case sufficiently to recover.
      This means that the Third-Party Plaintiff, Helmerich & Payne, must convince you that, when the evidence is taken as a whole, the facts or causes sought to be proved are more probable than not. If they fail to prove or establish any essential element of their case by a preponderance of the evidence, then you must find that they have failed to prove their case sufficiently to recover.” The trial judge then gave a similar instruction concerning Third-Party Defendant Delta Gas’ burden of proof.

      .The judge instructed the jury as follows:

      .The judge specifically stated:
      “In this case involving alleged damage from a product, the basic standard applicable to the manufacturer is: The manufacturer of a product which involves a risk of injury to the user is liable to any person, whether the purchaser or a third person, who without fault on his part, sustains an injury caused by a defect in the design, composition or manufacture of the product, if the injury might reasonably have been anticipated. I will now explain to you the meaning of this standard, along with the other elements of Plaintiffs case. In order to be successful, the Plaintiff must establish all the essential elements of his case.”

      . Concerning Delta’s alleged misuse, the judge instructed as follows:
      “A manufacturer is not liable for the harm suffered by a Plaintiff if it is caused in part by misuse of the product by another. Misuse means mishandling the product, or using it in a way which the manufacturer could not have reasonably foreseen or expected in the normal and intended use of the product. This is an issue on which the Defendant, Helmerich & Payne, Inc. [NGO], has the burden of proof. Thus, if you are convinced by Defendant’s evidence that the product has been mishandled by Delta, or substantially changed before it was used, or put to an abnormal use, or combined with another product which made it dangerous, and this contributed to plaintiff’s harm, then you must return a verdict in favor of Helmerich & Payne (NGO) and against Delta Gas, Inc.”

      . Only two gallons of odorant were added to one of the odorization stations checked after the accident.

      . The explosion occurred on May 29, 1977. Plaintiffs initially filed suit in U.S. District Court on May 24, 1978, naming Delta, Mrs. Hingle and others as defendants. Only Delta was served within one year of the date of the accident. NGO was named as a defendant in the federal court suit on January 3, 1979, by supplemental and amended complaint. Plaintiffs’ suit was dismissed in the U.S. District Court on March 27, 1980, for lack of diversity jurisdiction. The present suit was filed against the named defendants on January 3, 1979, in the Civil District Court.

      . LSA-R.S. 33:4522 provides:
      “Every person engaged in the business of handling, storing, selling, or distributing natural and other odorless gases, except liquified petroleum gases, for domestic use, or supplying such gases by pipe-lines or otherwise to any public building where people reside or congregate, shall malodorize the gas or gases by the use of a malodorant agent of such character as to indicate by a distinctive odor the presence of the gas. The malodorant agent shall be non toxic and non corrosive and not harmful to leather diaphragms in gas equipment.” (In 1981, this statute was amended but with no effect on the instant case).

      . We point out that the jury was made aware in the judge’s charge of the stipulation by counsel of the pre-trial settlement with Delta. The jury very well could have taken the agreement into consideration and recognized that Delta would share (to some extent) in the award.


text:
    David R. DAGNALL v. LOUISIANA DEPARTMENT OF HIGHWAYS.
    No. 13301.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1983.
    Rehearing Denied Feb. 24, 1983.
    Robert E. Couhig, Jr., Adams & Reese, New Orleans, for appellant.
    Philip K. Jones, Marshall W. Wroten, and Jesse S. Guillot, Trial Atty., La. Dept, of Transp. and Development, New Orleans, for appellee.
    Before GULOTTA, CIACCIO and WARD, JJ.
   GULOTTA, Judge.

Plaintiff appeals from a judgment dismissing his personal injury suit against the Louisiana Department of Transportation and Development. We affirm.

On July 4, 1975, David Dagnall was driving in a southerly direction on the Pontchartrain Expressway toward the Mississippi River Bridge when his vehicle was struck head-on by a vehicle driven in a northerly direction by Barney Gegenheimer, after the Gegenheimer truck had crossed the median and invaded plaintiff’s traffic lane. The Gegenheimer vehicle straddled the median barrier dividing the lanes for 187 ft. 2 in. before striking plaintiff’s truck.

The median measured 3 ft. 10 in. in width, 15 in. in height and divided two traffic lanes in each direction on the Pontchartrain Expressway. The median and expressway complied with the minimum engineering standards at the time of completion “in the mid-fifties.”

Plaintiff contends the State should be held strictly liable for the injuries he sustained because the barrier curb median constituted a “defect” in the Pontchartrain Expressway. Alternatively, plaintiff claims the department was negligent because of its failure to correct a hazardous condition after having been given notice of the danger.

The question is whether a highway that met minimum safety standards when constructed but did not meet the revised, upgraded minimum standards when the accident occurred, was so hazardous as to be unsafe to a careful and prudent driver. We conclude the highway and barrier in our case were not so hazardous.

In 1967, ASHO recognized that a superi- or barrier was the GM deflection barrier, or the GM barrier rail, and accepted it as an industry standard. In 1969, the Louisiana Department of Highways also recognized the GM barrier rail as the superior barrier and began using it on its highways. In 1972 (three years preceding the accident), the State adopted the GM deflection barrier as the minimum standard for barriers.

A traffic engineer with the Louisiana Department of Highways testified that in 1974 the daily traffic flow on the Pontchartrain Expressway was 65,454 vehicles. One accident involving the median occurred in 1974. In 1975, the daily traffic flow was 61,843 vehicles, and only two accidents involved the median between January 1, 1975 and the accident date. Both accidents were cross-overs. In 1975, the Pontchartrain Expressway had the 30th highest accident rate in the State.

The decision whether a condition of a highway actually is a dangerous and hazardous one is factual. Pickens v. St. Tammany Parish Police Jury, 323 So.2d 430 (La.1975); Besnard v. Department of Highways, 381 So.2d 1303 (La.App. 4th Cir.1980), writ denied, 385 So.2d 1199 (La.1980). The Department of Highways is not responsible for every accident which occurs on a state highway nor is it a guarantor of the safety of the travelers thereon or an insurer against all injury which may occur on the highways. Sinitiere v. Lavergne, 391 So.2d 821 (La.1980). It is only required to maintain the highway in a reasonably safe condition for motorists using ordinary care and reasonable prudence. Oliver v. Parish of Jefferson, 408 So.2d 275 (La.App. 4th Cir. 1981); Coleman v. State, Through Department of Highways, 384 So.2d 484 (La.App. 2nd Cir.1980).

In Usry v. Louisiana Dept. of Highways, 402 So.2d 240 (La.App. 4th Cir.1981), writ denied, 404 So.2d 1259 (La.1981), this court exonerated the Department of Highways from liability where the protective “gore area and guard rail” had met the standards at the time of construction but did not meet upgraded standards for highway construction at the time of the accident and where we concluded that the alleged defects were not “.... patently or obviously dangerous to a reasonably careful and prudent driver.”

Plaintiff claims Usry should be restricted to its factual circumstances. In Usry, while traveling on 1-10, plaintiff’s decedent attempted to cross the gore area between 1-10 and 1-610 to get onto 1-10 and lost control of his vehicle. Both the gore area and the guard rail did not meet the standards in existence at the time of the accident, but met the standards that were in existence when the highway had been constructed 12 years earlier. The court in Usry noted that the guard rail served its intended purpose.

Unlike our case, the decedent, in Usry contributed to his own death by his negligent operation of his vehicle. Dagnall, on the other hand, was an innocent driver struck through the negligent operation of a truck that crossed the median and invaded his lane of traffic. Usry is similar to our case in that the barriers in both cases met the minimum safety standards at the time of construction but not at the time of the accident.

We agree that Usry is factually distinguishable from our case; however, the legal guidelines established in Usry are applicable. We reject plaintiff’s claim that the barrier in our case did not serve its intended purpose of protecting innocent motorists from vehicles crossing into their lane of traffic. It is unreasonable to expect any barrier to protect against all crossings. As pointed out hereinabove, the Department of Transportation is not responsible for every accident that occurs on its state highways nor is it the guarantor of the safety of travelers.

A divided highway is defined in LSA-R.S. 32:1(15) as follows:

“ ‘Divided highway’ means any highway divided into roadways by a median, physical barrier, or clearly indicated dividing section so constructed as to impede vehicular traffic.”

This divider, though not meeting current standards, was not inherently dangerous and served the purpose for which it was intended. The unusually high daily traffic flow in 1975 when compared to the minimal number of accidents (between January 1, 1975 and the accident date), two in number, is supportive of that conclusion.

Having so concluded, we affirm the judgment of the trial court.

AFFIRMED.

      . ASHO represents the American Association of State Highways and Transportation Officials comprised of the 50 state highway departments.

      . Although not clear from the record, it appears that the GM barrier is a barrier approximately 2V2 feet in height.


text:
    Pasquelina Sabino, wife of William I. FOX v. HORSEMEN’S BENEVOLENT & PROTECTIVE ASSOCIATION.
    No. CA-0102.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1983.
    Rehearing Denied Feb. 24, 1983.
    Writ Denied April 15, 1983.

      Kenneth J. Berke, A Professional Law Corp., New Orleans, for plaintiff-appellant.
    Salvador Anzelmo, New Orleans, for defendant-appellee.
    Before GULOTTA and BYRNES, JJ., and G. WILLIAM SWIFT, Jr., J. Pro Tern.
   GULOTTA, Judge.

Plaintiff, a member of the Horsemen’s Benevolent and Protective Association (HBPA), appeals from a judgment dismissing her suit for injunctive relief to prohibit the construction of an office building for the HBPA with funds mandated for use as medical benefits and administrative costs and expenses.

It is plaintiffs contention that the trial judge erroneously dismissed her suit on the merits absent a stipulation at the hearing on the preliminary injunction that the matter would be heard on the preliminary injunction and the merits at the same time. She further argues that the expenditure of $625,000.00 for the construction of an office building for the HBPA with funds mandated for use as medical benefits and administrative expenses and other costs necessary to provide such benefits is contrary to LSA-R.S. 4:183.

The matter is before us on a stipulation of facts. The record does not contain any written stipulation that the matter would be heard on the merits, and the plaintiff claims none exists. Defendant, however, claims both parties agreed, in chambers, that the issue was primarily one of law and the preliminary and permanent injunction would be tried together. In addition the trial judge in his judgment stated “the case was tried on its merits.”

A preliminary injunction is an interlocutory procedure to maintain or adjust the existing status of the litigants upon a prima facie showing that to do otherwise would result in irreparable injury, pending the decision on the permanent injunction, which is dispositive of the issues on the merits.

Generally, a trial court, in denying a preliminary injunction, cannot, absent a stipulation, dismiss the suit on the merits for a permanent injunction without a trial on the merits. In State ex rel. Guste v. City of New Orleans, 363 So.2d 678 (La.1978), however, even with a stipulation in the record, the conduct of the parties indicated the matter was heard on the merits by agreement. In Guste, even though the hearing was designated as one on the application for a preliminary injunction, the entire case was submitted to the trial judge and both parties briefed and argued the entire matter at the hearing on the rule to show cause. The trial court’s reasons for judgment dealt extensively with the merits of the case, and only tangentially with the issuance of a preliminary injunction. The State then sought appellate review only of the decision on the merits. At the appellate level, the parties entered into a stipulation that the issue involved statutory interpretation. In Guste, the Supreme Court held these factors demonstrated the parties understood all issues would be decided on the merits at the hearing.

The Guste opinion is silent as to whether one of the parties objected to the existence of such a stipulation. However, in the writ application in Guste, the relator argued that only the propriety of a preliminary injunction was before the trial court and not the merits of the declaratory relief and the permanent injunction. The appellant in Guste further argued in its brief that the trial court was unauthorized to adjudicate the merits when only a request for a preliminary injunction had been heard. Likewise, in our case the appellant argues that there was no stipulation; that the trial judge did not have the matter on the merits before him; and, that he erroneously dismissed plaintiffs suit.

The issue in our case on the preliminary injunction was clearly to maintain the status quo to prevent construction of the building. The issue on the merits is whether HBPA is in violation of statutory authority, if indeed the building is constructed. The two issues are so closely interwoven that it is difficult to understand, if we accept plaintiffs claim, why there was no stipulation to decide the case on its merits. Apparently the trial judge and the defendant were of the impression that there was such a stipulation. We note also that the stipulation of facts relates not only to the preliminary injunction but to the issues on the merits. Finally, we fail to find any prejudice to plaintiff by a submission of the case on both the preliminary and permanent injunctions. Under the circumstances, we cannot say the trial judge erred in rendering a judgment on the merits.

Because the judgment on the merits is a final judgment, we do not conclude the appeal taken on the sixteenth day after rendition of judgment was untimely, as claimed by HBPA. Since the judgment in this case was not only from a denial of a preliminary injunction but from a dismissal of plaintiffs suit on the merits, the delays for appeal set forth in LSA-C.C.P. Art. 2087 and Art. 2123 apply, not the fifteen day appeal period of LSA-C.C.P. Art. 3612 for orders relating to preliminary injunctions. See Calhoun v. State, 152 So.2d 866 (La.App. 3rd Cir.1963).

Finally, we find no merit to plaintiffs contention that the expenditures for land and improvements for an office building by HBPA violate LSA-R.S. 4:183. We adopt in toto the well considered and well articulated reasons of the trial judge for denying plaintiff injunctive relief. Those reasons are set forth in pertinent part as follows:

“The pertinent facts of the case are stipulated to; the only remaining issue involves the interpretation of certain language in R.S. 4:183. One provision of that statute requires that one-half of the 50% parimutual handles received by the HBPA be allocated solely for the use and benefit of the members as medical and hospital benefits, including the administrative expenses and other costs necessary to provide said benefits. It is under this provision that the HBPA undertook to purchase the land and to incur the services of and expenses of architects, etc., to draft plans for the construction of a building which will be almost exclusively used in the administration and processing medical benefits claims.
“The plaintiff argues that an expenditure of this magnitude, approximating three-quarters of a million dollars, for the purpose of acquiring land and construction of a building thereon cannot be categorized as an ‘administrative expense’, nor can it be considered as ‘other costs necessary to provide said benefits’, as those terms are used in the above mentioned statute. In support of her contentions (interpretation) the plaintiff cites Black’s Law Dictionary and Webster’s Third New International Dictionary definitions, defining or limiting to the word ‘administrative’ to daily affairs as distinguished from permanent matters — or finding the term ‘administrative’ to be synonymous with ‘management’. Further, the plaintiff cites numerous definitions of the word ‘necessary’ to show that the HBPA’s expenditures in this case are not within the scope of ‘other costs necessary’ under the statute. In this aspect of her case, the plaintiff insists that the new building is not necessary, not essential, not indispensable, not required, or not within the meaning or definition of any other term used as a synonym to the word ‘necessary’.
“In opposition the defendant points out any number of compeling reasons why the building is, in fact, necessary for the continued operation of the program and why the expenditures would be allowed under R.S. 4:183. Currently, the HBPA Medical Benefit Program is administered from a 14' by 64' house trailer. There is a severe lack of space for the present employees to work in, for equipment files, office supplies, etc. The HBPA has been forced to rent self-service storage bins or facilities away from the house trailer wherein files, etc., are stored. Employees needing these files have to spend time and effort traveling to the storage bins, fishing out the needed file and returning it to the cramped and crowded house trailer which already has large numbers of files stored in temporary cardboard box files scattered hither and yon in the trailer. Every available space in the trailer is taxed to capacity; stationery and supplies are stored in the bathroom; the kitchen area is used as an office. The trailer has been broken into, burglarized three times, necessitating installation of burglar bars on windows, etc. This, in turn, creates a dangerous fire hazard as the trailer is reduced to only one exit and it is constructed primarily of flammable materials. Additional employees are needed to handle the work load, but have not been hired simply because there is absolutely no place for them to work or locate. There is no adequate reception area; claimants and others are required to walk among and mingle with employees and have ready access to open files which can and do contain confidential information.
“The operation is not a trivial nor small one. More than 20,000 Owners, Trainers, Assistant Trainers, plus their spouses and children are covered by the program: 7301 Owners and Trainers, their soouses and children; 166 Assistant Trainers; 2028 grooms and hot-walkers; 633 exercise boys, etc. In short, there are 20,000 participants in the program at present and their numbers is continuously growing. In 1980 $496,518 in benefits were paid out; in 1981 $724,248 and in the first five months of 1982 $346,648....
“Working space and conditions are inadequate and lead to inefficiency and the slow processing of claims for medical benefits. All of this makes a new facility, a larger facility, necessary and virtually essential.
“The defendant’s Louisiana Corporate Charter authorizes the HBPA to own, buy, sell, etc., real estate. The statute in question uses two terms; ‘administrative expenses’ and ‘other costs necessary to provide said benefits’. Clearly the Legislature meant to indicate that ‘other costs necessary’ are distinct and different from ‘administrative expenses’. Further, in order to give both terms efficacy and meaning it is necessary that ‘administrative expenses’ be interpreted as recurring, management expenses, as suggested by the plaintiff. However, the term ‘other costs necessary’ must be interpreted as different from administrative expenses and as one-time non-recurring outlays of capital.
“The terms of the statute here at issue have not been refined or explained by the Legislature, nor have the Courts heretofore been called upon to do so. It is a recognized rule of statutory construction that an Act be read as a whole and is to be interpreted so that no clause, sentence, nor word shall be considered as superfluous nor meaningless, if that result can be avoided. CHF Finance Co. v. Jochum [241 La. 155], 127 So.2d 534. This Court gives meaning and effect to all terms used in this statute and concludes that the expenditure at issue are embodied within the meaning of ‘other costs necessary’, as well as within the meaning of the term ‘administrative expenses’.
“The defendants present a compelling need to construct a building for the adequate administration of the medical benefit program. The language of the statute is construed to permit and to allow these expenditures as both administrative in part and as other necessary costs to effectively carry out the intent and purpose of the statute. The severe absence of working space, the inability to expand existing facilities to meet the ever increasing work load, the inadequate working conditions, and the inefficiency produced thereby, interfere with and slow down the administration of the medical benefits program. All these things make a new administration facility, a larger facility, necessary and essential.
“The real issue is not: Does the HBPA need a new facility? Rather, the issue is: Does it need the facility it plans to build? The Board of Directors appear to be acting prudently in the premises, with foresight and certainly with good discretion. They are planning a facility which is not only needed and meets the present requirements, but, additionally, provides for growth and future development (something many organizations and companies often fail to do.) A $600,000 building newly constructed in New Orleans in 1982 cannot be considered a magnificent edi-face. With respect for her, the plaintiff wishes to substitute her ideas as to what should be acquired as the new facility for those of the chosen Board of Directors. It is the latter who are charged with the responsibility and given the duty to administer and manage the affairs of the HBPA, and the Court cannot find any abuse in the exercise of their duties or discretion.”

Having adopted the foregoing reasons, we affirm the judgment of the trial court.

AFFIRMED.

      . LSA-R.S. 4:183 provides in pertinent part: “The monies distributed to the horsemen for purses and the monies distributed to the Horsemen’s Benevolent and Protective Association for the use and benefit of horsemen for hospital and medical benefits and for the administrative expenses in providing said benefits shall amount to the following: .... one and one-half percent of said commissions to the Horsemen’s Benevolent and Protective Association for the use and benefit of the horsemen as medical and hospital benefits, including the administrative expenses, and other costs necessary to provide said benefits ...”

      . LSA-C.C.P. Art. 3601 provides in pertinent part:
      “An injunction shall issue in cases where irreparable injury, loss, or damage may otherwise result to the applicant, ...”

      .See Schwegmann Bros. G.S. Mkts. v. Louisiana Milk Com’n., 290 So.2d 312 (La.1974); Creppel v. Parish of Jefferson, 352 So.2d 297 (La.App. 4th Cir. 1977), writ denied 354 So.2d 201 (La.1978); Employers Overload Company v. Employers Overload Company of New Orleans, Inc., 266 So.2d 546 (La.App. 4th Cir. 1972), writ denied 263 La. 375, 268 So.2d 260 (1972); West Publishing Co. v. Intrastate Pipeline Corp., 254 So.2d 643 (La.App. 4th Cir. 1971), writ denied 260 La. 405, 256 So.2d 290 (1972).

      . See Southwest Sales and Manufacturing Company, Inc. v. Delta Express, Inc., 342 So.2d 281 (La.App. 3rd Cir. 1977); Olsen v. City of Baton Rouge, 247 So.2d 889 (La.App. 1st Cir. 1971), writ denied 259 La. 755, 252 So.2d 454 (1971); Pizzitola v. Pace, 161 So.2d 441 (La. App. 4th Cir. 1964).

      . See State ex rel. Guste v. City of New Orleans, supra; Southwest Sales and Manufacturing Company, Inc. v. Delta Express, Inc., supra.

      . La.C.C.P. Art. 2087 provides for a sixty-day devolutive appeal period.

      . La.C.C.P. Art. 2123 provides for a thirty-day suspensive appeal period.

      . La.C.C.P. Art. 3612 provides in pertinent part:
      “An appeal from an order or judgment relating to a preliminary injunction must be taken and a bond furnished within fifteen days from the date of the order or judgment.”


author: KLEES, Judge.

text:
    John DANIEL v. DEPARTMENT OF POLICE.
    No. CA-0046.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1983.
    Rehearing Denied Feb. 24, 1983.

      Sidney M. Bach, Gerald Wasserman, Bach & Wasserman, New Orleans, for plaintiff-appellee.
    Charles J. Willoughby, Asst. City Atty., New Orleans, for defendant-appellant.
    Before KLEES, BARRY and AUGUSTINE, JJ.
   KLEES, Judge.

John Daniel, appellee, a police officer in the New Orleans Police Department, appellant (Department), was suspended on July 28, 1981 for violating departmental regula- • tions pertaining to neglect of duty and filing false or inaccurate reports. While the above infractions were being investigated, Officer Daniel was charged with violating other departmental regulations, requiring additional investigation. On September 29, 1981, Officer Daniel was dismissed for, among other things, striking his superior and changing his place of residence in violation of departmental policy and the ordinance of the City of New Orleans pertaining to residency for City employees. Officer Daniel appealed to the Civil Service Commission from the above disciplinary actions. On May 10, 1982, the Commission reduced the disciplinary action to a ten (10) day suspension. Subsequent thereto, the Department of Police appealed to this Honorable Court.

The issues presented on appeal are:

Whether or not the Commission erred in reducing the imposed discipline from a dismissal to a ten (10) day suspension, and;

Whether or not the Commission erred in not finding that Officer Daniel’s changing of his place of residence outside of Orleans Parish was cause for dismissal.

We find no error in the action taken by the Commission and affirm.

On July 27, 1981, Police Officer John Daniel responded to a call from Suzanne and Christopher Allen concerning an attack on their dog by a German Shepherd. Because their dog was injured in the incident, they were interested in determining the owner of the German Shepherd. Officer Daniel had broadcast over the radio a description of the German Shepherd and the persons seen with the dog, who were thought to be the owners. In the broadcast and in his police report of the incident, he indicated that a dog had committed an aggravated battery on another dog. After several hours, the dog was located and taken to the SPCA and the owner contacted.

In connection with the broadcast and the report, Officer Daniel was the subject of an emergency suspension on July 28, 1981. The suspension was based on allegations that he acted in a manner unbecoming an officer, by neglect of duty and filing a false or inaccurate report.

An investigation of Officer Daniel was then conducted which resulted in his suspension for a period of sixty-nine (69) days from July 28, 1981 until October 4, 1981. His employment with the New Orleans Police Department was terminated effective October 5, 1981.

This investigation produced a finding by the Department that he had violated Departmental Rules and/or Procedures and Officer Daniel was disciplined for filing a false or inaccurate report; releasing confidential information; filing an improper evidence report; striking one of his supervisors; failing to report in a timely fashion for interviews in connection with the investigation; residing outside of Orleans Parish in violation of departmental regulation and municipal ordinance, and possessing a firearm while on suspension in violation of state law.

Officer Daniel’s conduct, the Department found, constituted violations of various rules, procedure and laws.

In our review of the record of this matter, we are constrained to accept the findings and conclusions of the Civil Service Commission and quote in pertinent part:

“On July 27,1981, Appellant responded to a call concerning one dog biting another dog and injuring him. According to testimony of the complaining parties, Mr. and Mrs. Christopher Allen, Appellant handled the call in a most professional manner and later located the offending dog and reported it to the complainants. Appellant evidently saw humor in the situation and prepared a humorous report and made a humorous radio transmission to the dispatcher concerning one dog commiting aggravated battery on another dog, with the offending dog being arrested. In the written report of arrest, the arrested party was listed as ‘Phi-deaux Doe’. Appellant’s supervisors, Sargeant Scott and Captain Holman, immediately suspended him for this offense. Captain Holman stated that such emergency indefinite suspensions are given when ‘it is determined he is no longer willing or able to perform those duties incumbent upon him.’ While we understand that the Police Department must be in a position to suspend officers immediately when accusations against them destroy their credibility or reputation as a Police Officer, we do not believe that this is such a case.
The second major allegation in this case involved an altercation between Captain Holman and Appellant on August 21, 1981. The scuffle happened when Appellant went to the First District Station to see Captain Holman about his indefinite suspension and his being prohibited from working at another job during the suspension period. Captain Holman responded that he did not wish to speak to the Appellant and Captain Holman testified that as the Appellant turned to leave, instead of leaving, he attempted to strike Captain Holman with his left fist. Captain Holman blocked this punch with his left elbow. Appellant testified that he asked to speak to Captain Holman and Appellant then raised his left hand to count with his right hand the number of times he had been in the First District Station. Captain Holman then grabbed his left hand and put it in an arm lock behind his back, then hand-cuffed him. No other persons were witnesses to the altercation.
Certain other infractions were alleged as justification for the disciplinary action. These included the humorous but improper evidence report concerning the ‘Ghost of John Daniel’, a change of residency without permission from Orleans Parish to St. Bernard Parish, and failure or delayed reporting for interviews in connection with the investigation.
With respect to the altercation with Captain Holman, we find that the City has not carried its burden of proof. Basically we have Captain Holman testifying one way, and the Appellant the opposite, with no other evidence that would allow us to make a determination as to whether or not Appellant was responsible for the altercation. One possible explanation of the whole matter is that Captain Holman misinterpreted Appellant’s intention in raising his left hand to count. However, since it’s a one-on-one situation, our only choice is to hold that the City of New Orleans did not carry the burden of proof. With respect to the false report concerning the dog-bite-dog case, we agree that humor has no place in the official reports of the Police Department in that it can only cause misunderstanding and inefficiency. Particularly considering that this is the second offense, we believe that for this, along with the other minor violations set forth above, that Appellant should be suspended for a period of ten days. We find that there is not sufficient cause to suspend him for any longer period.
Therefore, we hereby order him suspended for ten days, commencing July 28, 1981, and order him reinstated with back pay as of the completion of said ten-day period. His back pay entitlement shall be reduced only by any compensation earned by Appellant during such period.”

The Commission is vested with the authority to reduce an excessive penalty where there is insufficient cause for the sanction imposed. Dale Barnett v. New Orleans Police Department, 413 So.2d 520 (La.App. 4th Cir.1982); Arnold v. New Orleans Police Department, 383 So.2d 810 (La. App. 4th Cir.1980); Branighan v. Department of Police, 362 So.2d 1221 (La.App. 4th Cir.1978). There has been no showing by the Department that the administrative decision appealed from reflects either manifest error, or abuse of discretionary powers, or is not supported by the facts presented of record at the hearing before the City Civil Service Commission.

Further, we find no merit in the Department’s argument that Officer Daniel’s changing his place of residence outside of Orleans Parish in violation of departmental regulations and municipal ordinance was sufficient cause for dismissal.

The appointing authority failed to show that Officer Daniel’s residing outside of Orleans Parish has caused the Police Department to be less efficient or has impaired the Department’s protection capabilities. Hence, Officer Daniel’s dismissal for failure to comply with the ordinance requiring all city employees to live within the city limits was not cause as required by statute. White v. City of Winnfield Fire Department, 384 So.2d 471 (La.App. 2nd Cir.1980).

For the foregoing reasons, we affirm the Commission’s ruling. All costs of this appeal are to be borne by appellant.

AFFIRMED.