author: GULOTTA, Judge. HOOD, Judge,

text:
    Thomas J. IRBY v. EDWARDS RENTAL & FISHING TOOLS, INC. and Midland Insurance Company.
    No. 11033.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 7, 1980.
    Rehearing Denied March 17, 1980.

      Emile E. Martin, III, Belle Chasse, for plaintiff-appellee.
    Wegmann & Longenecker, Geoffrey H. Longenecker, New Orleans, for defendants-appellants.
    Before GULOTTA, CHEHARDY and HOOD, JJ.
   GULOTTA, Judge.

Defendant appeals from a judgment awarding workmen’s compensation benefits based upon a finding of permanent total disability.

The sole issue in the determination of permanent total disability in this case is whether plaintiff, subsequent to the job-related accident, worked in substantial pain.

According to defendant, the trial judge erred in finding permanent total disability when the evidence established only a temporary disability, for which plaintiff has been paid.

Thomas J. Irby was injured on March 17, 1975 while working as a “hot-shot driver” with Edwards Fishing and Rental Tools, Inc. Plaintiff’s job entailed working in a warehouse, breaking down large tools and repairing them, as well as loading and unloading those tools on pickup trucks for delivery to boats and barges.

While attempting to unload a 162-pound tool onto a boat, plaintiff fell, shattering his right elbow. He was immediately taken to the West Jefferson Hospital and underwent surgery on the following day, performed by Dr. Earl J. Rozas, an orthopedic surgeon. Plaintiff’s injury was described by Dr. Ro-zas as a “fractured dislocation of the elbow.” Postoperative recovery was apparently uncomplicated and plaintiff was seen periodically by Dr. Rozas after discharge from the hospital.

On an August 26, 1975 visit, the doctor found reduced degrees of extension and flexion, as well as a one-fourth-inch atrophy of the upper arm and forearm as compared to the left arm. He found at that time that plaintiff had suffered a twenty-five percent permanent physical impairment of the upper extremity. Although no traumatic arthritis findings were made at that time, the doctor indicated that the chances were high for subsequent development of arthritis.

Plaintiff was discharged in August 1975; however, Dr. Rozas again saw him on August 9,1976, at which time the doctor again found further reduction of extension and flexion. There was audible as well as palpable crepitation and a one-half inch atrophy of the right upper arm and right forearm was discerned. No increased arthritic changes were found. Mild pain medication was prescribed. The doctor testified further that the probable cause of the atrophy is that Irby was not using the arm “in the full manner that he was before he got hurt.” The evidence of some arthritic change in the elbow, according to Dr. Rozas, indicates also that the arm was not being fully used because of pain.

Plaintiff’s work history before and after the injury showed numerous and frequent job changes. At the time of the injury he had been employed at Edwards Tools for approximately two or three months. He found upon returning to his employment after his discharge from the doctor that he was unable to do the work. After leaving Edwards he worked for two weeks in a factory, but was unable to continue this employment because the job required holding an air gun in his right hand, causing strain on his arm. Thereafter he worked on oil rigs as a roustabout and roughneck, loading and unloading boats, sweeping around an oil rig and moving pipe.

Irby testified that during this time he had trouble with his arm and favored the right arm while working. He explained when he worked for a twelve-hour period, he suffered pain for two days thereafter. Plaintiff explained that oil field work was the only kind of work that he knew; that he had only an eleventh-grade formal education; and that his work required manual labor, which could not be accomplished without favoring his right arm and without suffering pain. He stated the pain was “like throwing your arm out of place or something."

At the time of the trial, Irby was employed as an assistant driller on a drilling rig. He indicated that occasionally he was required to do heavy, strenuous work. He was earning a salary well in excess of the amount earned at the time of the injury and was taking no medication.

Asked whether engaging in manual labor would induce substantial pain, the doctor testified:

“THE COURT: Let me ask you a few questions, Doctor. I don’t ordinarily ask questions. Let me make sure we understand what you’re talking about in terms of substantial pain. It is your testimony that this plaintiff, Mr. Irby, is required as a part of the functions of his job to use his right arm in a manual labor type of activity which would require him on a twelve-hour basis to lift up objects which would be thirty-five or forty pounds, a weight during that period of time with stress on that arm. Would he not suffer substantial pain if he used his arm?
THE WITNESS: Yes, Your Honor, he would over a ten to twelve-hour period of time.”

Plaintiff’s testimony convinces us that the various and sundry types of employment in which he has been engaged involve, in one way or another, working with heavy equipment in servicing the oil industry. At certain times in the course of these jobs, he was required to engage in manual labor requiring heavy lifting, with twelve-hour workdays. When we consider the description of the jobs in which Irby engaged prior to, at the time of, and subsequent to the injury, we conclude that plaintiff worked in substantial pain.

Our jurisprudence is clear that the law providing for permanent total disability benefits does not contemplate that an injured workman is required to return to his regular work if he is unable to perform that work without substantial pain. Crawford v. Al Smith Plumbing & Heating Service, Inc., 352 So.2d 669 (La.1977). Further, work-related disability is compensable even though the employee returns to work and performs his previous duties, if such performance is accompanied by substantial pain. Lucas v. Ins. Co. of North America, 342 So.2d 591 (La.1977).

Having concluded that plaintiff’s employment resulted in his working in substantial pain, we affirm the judgment of the trial court.

AFFIRMED.

HOOD, J., dissents.

HOOD, Judge,

dissenting.

I cannot agree with my colleagues that plaintiff is unable to perform his regular work without substantial pain, or that he is totally and permanently disabled, within the meaning of LSA-R.S. 23:1221(2), as amended by Art. 583 of 1975. For those reasons, I respectfully dissent.

      . The work-connected accident occurred on March 17, 1975 and is covered by disability benefits, as set forth under R.S. 23:1221 prior to the 1975 amendment effective September 1, 1975.

      . At the time of injury he was earning approximately $300 every two weeks. At the time of trial, he earned about $127 a day as an assistant driller, working seven days on and seven days off.

      . Although the. trial judge assigned no reasons for judgment, his finding of permanent total disability indicates that he reached a factual conclusion that plaintiff was required to work in substantial pain.


source: Caselaw Access Project

author: BOUTALL, Judge.

license: Public Domain

text:
    BRICKS UNLIMITED, INC. v. LEMOINE HOMES, INC.
    Nos. 10693, 10694.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 7, 1980.
    Emile J. Dreuil, Jr., New Orleans, for Gladney J. Lemoine, Jr., defendant-appellant.
    Satterlee, Mestayer & Freeman, by Henry F. Mestayer, New Orleans, Atty. of Record for Bricks Unlimited, Inc., plaintiff-ap-pellee.
    SAMUEL, BOUTALL and GARRISON, JJ.
   BOUTALL, Judge.

These two cases were consolidated on trial and consolidated on this appeal. They have identical issues. Bricks Unlimited, Inc. brought these suits against Lemoine Homes, Inc. and its President, Gladney J. Lemoine, Jr. personally, for the contract price of masonry work done for the corporation. The trial court rendered judgment against both defendants. Gladney J. Lem-oine, Jr. only appeals that part of the judgment which is against him personally.

On April 22, 1977, plaintiffs entered into two contracts with Lemoine Homes, Inc. to furnish bricks and brick work necessary for two homes that the corporation was constructing. Lemoine’s signature appears on the proposals as accepting for the corporation. The corporation did not pay and suit was brought against both the corporation and Lemoine personally. It is contended that Lemoine’s liability is based upon a credit application and agreement which he had filed with the plaintiff on September 18, 1975, and that this agreement makes Lemoine a guarantor of the credit extended to the corporation and responsible for attorney’s fees for its collection.

Louisiana Civil Code Article 3039 provides that suretyship cannot be presumed; it ought to be expressed, and is to be restrained within the limits intended by the contract. The credit application is solely in the name of Gladney J. Lemoine, J. and nowhere in the document is there any mention of the corporation. The major obligation of the application provides only to “my account” and not to any other. Conversely, the contract for the brick work is solely in the name of Lemoine Homes, Inc., and contains nothing in it which would provide for the personal liability of Lemoine.

One of defendant’s officers testified that originally Bricks Unlimited had received this credit application from Lem-oine because it was selling bricks to them. Later their contractual dealings became different and Bricks Unlimited contracted with Lemoine Homes, Inc. to not only furnish bricks but to do all of the brick work necessary, which he called a “turnkey job”. He stated that plaintiff did not seek a credit application from the corporation because Lemoine had previously paid all of his bills. It is especially noteworthy that from the time of the change, there was no account carried for Lemoine but only for the corporation. Obviously, plaintiff was well aware that it was doing business with the corporation from that time forward and not with Lemoine personally. Although there are some factual differences, the principles announced in the case of Frank Brigsten, Inc. v. Alpha Builders Inc., 351 So.2d 777 (La.App. 4th Cir. 1977) are applicable to this case. The creditor had the burden of proving that the corporate agent was liable, and that the agent expressly bound himself in the credit application to satisfy the obligation of the corporate debtor. He could not be held liable as surety for corporate debt- or, in light of Civil Code Article 3039 that suretyship cannot be presumed but must be expressed.

Accordingly, we conclude that there is no basis for the personal liability of Lemoine. That portion of the judgments appealed is reversed and there is now judgment in each case in favor of Gladney J. Lemoine, Jr. dismissing plaintiff’s suits against him at plaintiff’s cost.

REVERSED.

      . The agreement states the following:
      “I agree that, in consideration of any extension of credit hereafter made, and in the event it becomes necessary to place my account in the hands of an attorney for collection, to pay a reasonable attorney’s fee, which in no event shall be less than 24% of the balance due; I further agree that in the event my account becomes past due, to pay a service or handling charge of l‘/2% per month on the unpaid balance. I clearly understand that the foregoing information is given in order to obtain credit and that the foregoing information given, and no other, will be relied upon in granting same. I further agree to notify you of any change of my status, as propounded above, especially that status pertaining to my solvency.”


text:
    AVONDALE SHIPYARDS, INC. v. Thomas M. LOCKWOOD, Administrator, Louisiana Office of Employment Security.
    No. 10741.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 7, 1980.
    Willie D. Maynor and James A. McGraw, Baton Rouge, for Thomas M. Lockwood, Administrator, La. Office of Employment Security, defendant-appellant.
    Stephen D. Ridley, Jones, Walker, Wae-chter, Poitevent, Carrere & Denegre, New Orleans, for Avondale Shipyards, Inc., plaintiff-appellee.
    Before SAMUEL, BOUTALL and GARRISON, JJ.
   BOUTALL, Judge.

Avondale Shipyards, Inc. sought judicial review of the decision of the Administrator of the Louisiana Office of Employment Security whereby Avondale was charged $35,-130.08 in additional payments due from the fourth quarter of 1975 through the first quarter of 1977. These additional payments were employer’s contributions under the extended benefit charges occasioned by the Federal-State Extended Unemployment Compensation Act of 1970, passed by Congress to combat the effects of depression. The district court reversed and ordered the refund of $34,547.86, there being no contest over the amount assessed for the first quarter of 1977. The Administrator appeals.

It is apparent that the Administrator, in computing the benefit charges assessed against Avondale during this time period had misinterpreted the application of the Federal Law in those instances where it conflicts with Louisiana Law. As a result, charges were assessed not to the employer, but to the Federal government. Upon notification of the error, the Administrator then sought to assess the extended benefit charges against the Employer. On January 30, 1978, the Administrator assessed the contested charges attributable quarterly from the fourth quarter of 1975 to the first quarter of 1977. The basic issue is the application of L.R.S. 23:1551 to these facts, and in particular the following:

“However, the Administrator has no authority to make any adjustment or correction which will increase the contribution of any employing unit unless such adjustment or correction is made within 12 months of the occurrence of the administrative error.”

It is readily apparent that only the adjustment or correction for the first quarter of 1977 falls within the 12 month period. The Administrator’s contention that “since the adjustment of the records occurred within a year of the rejection by the Federal Government of the extended benefit charges in question they were properly charged to the experience records of the employers” simply does not conform to the Statute. It is the appearance of the error, that is, its wrongful assessment, that begins the limitation running, not its discovery.

To the Administrator’s other argument, that the intent of Section 1551 is to prohibit retroactive tax rate increases and not to prohibit adjustments that might cause a tax rate increase on current or future tax rates, we say that the case of Sears, Roebuck & Company v. Lockwood Administrator, Louisiana Office of Employment Security, 378 So.2d 1010 (La.App. 4th Cir. 1979), has refuted that argument and has ruled otherwise. We follow that decision.

For the reasons assigned, the judgment of the trial court is affirmed.

AFFIRMED.


author: BOUTALL, Judge. REDMANN, Judge,

text:
    BELLE CHASSE CABINET WORKS, INC. v. Edward JENKINS.
    No. 10552.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 7, 1980.
    Wayne C. Giordano, Belle Chasse, for plaintiff-appellee.
    Tucker & Schonekas, Russell J. Schone-kas, New Orleans by Provino C. Mosca, New Orleans, for defendant-appellant.
    Before REDMANN, LEMMON and BOU-TALL, JJ.
   BOUTALL, Judge.

The furnisher of cabinets sued the owner-builder of a new house for the price of the cabinets. From a judgment in plaintiff’s favor, the owner appeals.

Belle Chasse Cabinet Works, Inc. entered into a contract with Edward Jenkins to furnish (without installation) a number of cabinets for a new house that he was building, with himself acting as general contractor. The cabinets were installed by another subcontractor of Jenkins’ choice. After installation, the owner decided that the cabinets were defective and did not meet the specifications he required. Accordingly, they were removed from the premises and stored elsewhere. This suit to recover the price followed.

The owner refused payment contending that the corners of some cabinet doors were warped and the hinges were not set squarely or evenly. The plastic laminate was improperly finished and the lap-joint was reversed in some instances causing an uneven appearance of edges. The cabinets did not fit properly into the assigned spaces and the utility room base cabinets were the wrong length. In support of his contentions, the defendant offered three expert witnesses to prove the poor workmanship and appearance of the cabinets. The trial court in his reasons for judgment, did not assign as much evidentia-ry value to the testimony of these witnesses as he did to plaintiff’s expert, the latter being the only individual who had a long history of both the manufacture and installation of cabinets personally. Additionally, the record indicates that a considerable portion of the defendant’s witnesses’ testimony does indeed support the position of plaintiff rather than defendant.

It is apparent that there were some defects in the cabinets when they were furnished, however it is equally apparent that these defects were of a minor nature and could be easily corrected. In fact the parties stipulated that “it is physically possible to remedy all alleged defects . . ^either on the job site or at plaintiff’s facili-. ties.” The evidence in general establishes the fact that the cabinets were improperly installed by the owner’s other subcontractor who used screw nails to nail them into the places assigned, rather than screwing them in so that adjustment could be made for proper fit and squaring of the cabinets. Some of the assigned spaces were not themselves square, and the installer had some problems in making a proper fit. As a result of this, some of the uneven edges complained of were created by saw marks made by the installer. The unevenness of the hinges and similar items are all subject to correction at the time of installation. The improper hole for the utility bowl could easily be corrected. The defendant’s action in having the cabinets removed without giving plaintiff a chance to correct these minor items cannot cause the defeat of plaintiff’s claim for payment. Insofar as the improper length of the two utility room base cabinets, the evidence demonstrates that one was longer than the other in order to properly fit the assigned spaces, and that the installer cut off some of the longer cabinet to make it fit the shorter space, and thus the shorter cabinet was too short to fill the longer space.

We conclude that the evidence fairly substantiates the findings of the trial judge.

Appellant contends that the trial court erred in assessing him with the price of some cabinets that were never furnished. The evidence shows however that plaintiff was in the process of constructing some additional cabinets in its plant, and that its charges for those items only encompassed the work and materials up to the unfinished status at the time when appellant informed plaintiff that the other cabinets were unsatisfactory and that all cabinets should be removed and taken back.

The last error complained of is the assessment of expert fees. The trial court adjudicated that the expert fees of plaintiff be assessed at $375.00 and appellant contends this is erroneous since the only expert furnished by plaintiff was its stockholder and operator Aubrey Adams, Sr. We do not hesitate to affirm this portion of the judgment because the parties stipulated as to the amount of expert witness fees for each side and the record makes it clear that plaintiff had additional experts who were to testify, but were not called as a result of the stipulation.

For the reasons above assigned, the judgment is affirmed.

AFFIRMED.

REDMANN, J., concurs.

REDMANN, Judge,

concurring.

The culprit in this litigation is the one who misrepresents what occurred when Adams for plaintiff met with the Jenkinses at their house to inspect the custom-made cabinetry. Adams swears that he offered to correct the defects and the Jenkinses ref used to let him do so; the Jenkinses swear that Adams said there were no defects and he refused to do anything. We are not in a position to second-guess the trial judge on credibility.

There were obvious defects, such as the glaring difference in height of two visible, abutting hinges on two cabinet doors (shown in a photograph in evidence) and an admitted error “where the utility bowl goes in the cabinet that was laid out wrong.” One who placed those hinges so far off measure very likely would have made other mismeasurements and his eye would equally likely not have noticed those mismeasure-ments. Defendants did not establish (or even attempt to establish) that equally gross defects were so pervasive as to justify their refusal to allow plaintiff reasonable opportunity to correct the defects. Defendants should have allowed plaintiff that opportunity, and the trial judge resolved contradictory evidence to conclude that they did not do so.


author: CHEHARDY, Judge.

text:
    Joseph LAZAR v. FEDERAL INSURANCE COMPANY et al.
    No. 10703.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 7, 1980.
    Heisler, Wysocki & de Laup, Frederick P. Heisler, New Orleans, for plaintiff-appellant.
    Adams & Reese, Harold A. Thomas, New Orleans, for Federal Insurance Company, defendant-appellee.
    Before GULOTTA, CHEHARDY and HOOD, JJ.
   CHEHARDY, Judge.

Plain tiff-appellant, Joseph Lazar, appeals from the judgment of the trial court dismissing his suit against Federal Insurance Company and Dr. James J. DiLeo for damages sustained as a result of alleged dental malpractice.

Plaintiff, on October 7, 1974, discussed with defendant Dr. DiLeo the installation of a permanent bridge for a removable partial. As a result of x rays taken on plaintiff's visit on October 14, 1974, Dr. DiLeo referred plaintiff to Dr. James Steiner, an endodontist, for possible root canal treatment. A root canal was done on the second molar on October 17, 1974. X rays taken before and after the root canal, as well as first x rays by Dr. DiLeo, did not disclose any abnormality of the lower left second molar. On October 25, Dr. DiLeo performed additional therapy on the bicuspid. On December 6, 1974, defendant dentist prepared plaintiff’s teeth for placement of a fixed bridge. On December 19, 1974, Dr. DiLeo could not install the permanent bridge because the bite was too high. A new permanent bridge made from a second impression taken on January 3, 1975, also failed to fit. On January 22, 1975, Dr. DiLeo installed the first bridge, which had been reworked. On January 30,1975, plaintiff returned to Dr. DiLeo complaining of pressure on the lower left second molar. Plaintiff was advised by defendant dentist that he could expect some discomfort — that this was normal after installation of a bridge. On this same day, Dr. DiLeo did a prophylaxis and a restoration to an upper bicuspid.

Plaintiff did not see Dr. DiLeo again until June 10, 1975. Plaintiff was seeking relief from pain which continued since his visit of January 30, 1975, but which plaintiff contends he accepted because he was assured by Dr. DiLeo that this pain was normal. On June 10, Dr. DiLeo adjusted the bite by spot grinding the bridge. No x rays were taken, but plaintiff was referred back to the endodontist, Dr. Steiner.

X rays taken by Dr. Steiner of the lower left second molar on July 2,1975, revealed a horizontal fracture of the distal root of the lower left second molar. (There is evidence that there was a microscopic fracture of this molar, even in October, 1974.) Infection was indicated in the area of the fracture.

Pursuant to the advice of Dr. Steiner, Mr. Lazar had the bridge removed by Dr. Russell Bond. Bone loss from the infection would not permit saving of the remaining half of the molar. It then became necessary to implant a gold post in plaintiff’s jawbone to act as a stanchion for that end of the permanent bridge. As a result, plaintiff had asked for medical and dental expenses, past and future, pain and suffering, mental anguish, physical injury, and disability in the total amount of $57,000.

The thrust of plaintiff’s case is that at the time of his initial visit, there was no fracture of the second molar; that the fracture and resulting injury to his mouth was ,a result of a too high bite in the bridge installed in January by Dr. DiLeo; and that despite his many complaints, Dr. DiLeo did nothing from January 1975 to June 1975 to correct the problem.

There is conflicting testimony regarding just what transpired between Mr. Lazar and Dr. DiLeo between January 10, 1975 and June 10, 1975. Mr. Lazar testified that on many occasions, by telephone and in person, he complained to Dr. DiLeo of the pain and discomfort, but was always advised that the pain was a normal result of the new bridge. Dr. DiLeo testified that on occasions plaintiff did state he had problems — “whether it was once or a hundred times, I don’t know, but I would say he probably made a gesture that he had a problem.” In response to whether or not Mr. Lazar told him about his problems at the New Orleans Athletic Club, Dr. DiLeo stated:

“Could have been any number of places because we travel. It might have been Las Vegas, Bourbon Street, at supper. We more or less crossed the same paths. Specifically didn’t have to be at the NOAC.”

Regarding complaints out of the office, Dr. DiLeo further testified:

“ * * * In other words, I don’t constitute that as a bona fide personal request for relief of a problem. * * *
* * * ⅜ * ⅛
* * * He was probably advised, not once, but every time he questioned me about a problem, I told him, 'Joe, I cannot take care of you here. My office is open to you at anytime you wish to come in. Let me correct the problem there,’ is indicated by the fact that if he had a problem from January 30, 1975, and I didn’t see his physical being in my office until June 10th, he certainly couldn’t have been in too much distress.”

It was necessary for plaintiff to prove in a malpractice action based on the negligence of a dentist licensed under L.R.S. 37:751 that: (1) the degree of knowledge or skill possessed or the degree of care ordinarily éxercised by dentists practicing in the same community or locality to that in which the defendant practices; (2) the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill; and (3) as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care, the plaintiff suffered injuries that would not otherwise have occurred.

In his reasons for judgment the trial judge observed:

“ * * * So, all told, as I view this testimony, this was an unfortunate circumstance that no professional fault can be laid upon any of the doctors. This very likely was, and I think now I have a right to express an opinion having heard all the testimony, this very likely was a microscopic fracture existing in the affected area that was there initially, but could not, by standards of detection, using the ordinary care and skill which doctors are charged under the law to exercise, be detected timely. And, unfortunately, it was one of those latent conditions that had a detrimental effect. But, certainly, not at the fault of any of these professional men.”

At one point in the testimony much is made about the “joke” incident — Mr. La-zar’s allegedly joking about not paying the doctor’s bill and failing to recall the incident. After being shown a document, purportedly in his handwriting, Mr. Lazar observed that “ * * * it looks like something I would have done, but I do not recall it. And Dr. DiLeo and I were on the basis that this would get a laugh.”

The court, upon being shown the document stated that it “ * * * is not impressed with this being anything more than a mere joke.” In his reasons for judgment the trial judge nonetheless indicated that in his making his credibility call in favor of Dr. DiLeo’s testimony regarding meetings between Mr. Lazar and Dr. DiLeo at the New Orleans Athletic Club he did give weight to the inconsistent testimony of Mr. Lazar regarding the “joke” incident.

The court is of the opinion that the evidence does not prove a lack of credibility on the part of plaintiff, Joseph Lazar, or Dr. DiLeo, as much as it indicates a failure to communicate. From reading the testimony it appears both men have told what they consider to be the truth. A reading of all of the judge’s reasons for judgment would indicate that he shares this view. He stated:

“ * * * There is only one shred of evidence upon which I can find a sufficient basis to acknowledge credibility. * * * I’m sure it was a jest because Dr. DiLeo said it was a jest. But the testimony is inconsistent. * * * ”

The reasoning of the trial court in reaching its factual conclusion we find to be thoroughly stated in the lengthy reasons for judgment. It is this court’s obligation to give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

For the foregoing reasons the judgment of the trial court is affirmed.

AFFIRMED.


text:
    PLAQUEMINES PARISH COMMISSION COUNCIL v. HERO LANDS COMPANY, C. J. Jackson and Leon “Sam” Duplessis.
    No. 10713.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 7, 1980.
    Writ Granted April 8, 1980.

      Duke, Porterie & Hantel, Louis B. Porter-ie, Douglas A. Kewley, New Orleans, for plaintiff-appellee.
    Brian, Simon, Peragine, Smith & Redf-earn, Frank J. Peragine, John C. Herbert, New Orleans, for Hero Lands Company, defendant-appellant.
    Before GULOTTA, CHEHARDY and HOOD, JJ.
   CHEHARDY, Judge.

Defendants-appellants, Hero Lands Company, C. J. Jackson and Leon “Sam” Du-plessis, appeal from a preliminary injunction enjoining defendants from excavating, selling and hauling earth material from Plaquemines Parish property of defendant Hero Lands over which plaintiff enjoys a servitude of drainage; from using any part of “Bucaneer Road” adjacent to the above servitude for any purpose not in accordance with the express provisions of the March 5, 1974 Plaquemines Parish letter of permission to construct and use a shell road; from conducting the business of excavating and selling earth material and/or operating a dump in any area in the Parish of Plaque-mines having an A-ll zoning classification without prior permission from the Plaque-mines Parish Commission Council and from excavating and selling earth material and/or operating a dump in the Parish of Plaquemines without an occupational license from the Parish of Plaquemines.

On August 16, 1957, Hero Lands Company and others, by signed agreement, granted “ * * * unto the said Jefferson & Plaquemines Drainage District surface ser-vitudes or the right of use for drainage canal construction and maintenance in their respective ownerships * * *.” By written agreement dated September 1,1965, the Jefferson and Plaquemines Drainage District granted surface servitudes for the establishment and maintenance of a system or network of drainage canals, seepage ditches and for road or highway purposes. It was further agreed that rights of ways for drainage canal purposes are paramount. On appeal we are concerned with only one of the drainage servitudes referred to in the 1965 agreement. In 1969 the Plaquemines Parish Commission Council took over the rights and obligations of the drainage district as to lands lying in Plaquemines Parish.

In 1973 Hero Lands requested and obtained permission from the parish to build Bu-caneer Road, which for much of its length would run alongside the northern edge of the drainage canal and within the servitude which is the subject of this suit. The March 5, 1974 letter of permission contained the proviso that the Bucaneer Road be strictly private in nature for the private use of Hero Lands Company, New City Company and Hero Wall Company and for use of their lessees for raising cattle and/or other agricultural purposes.

Plaintiff contends that due to the “control” granted drainage districts by L.R.S. 38:113, Hero Lands Company cannot remove dirt from the spoil area of the drainage servitude without permission of the drainage district; that such removal interferes with the drainage servitudes; that Hero Lands Company’s actions in selling the spoil and permitting the dumping of tree stumps without permission of the Plaquemines Parish Commission Council constituted a violation of the Plaquemines Parish zoning ordinance. Plaintiff further contends that Hero Lands failed to obtain the necessary occupational licenses from Plaquemines Parish to engage in the business of selling spoil and operating a dump. There is testimony that this spoil is needed and also could be used to buttress levees and other drainage systems throughout Plaquemines Parish; that Hero Lands actually sold spoil from the drainage servitude over a 9-year period; that these sales amounted to $3,000; that the deposit of tree stumps was confined to a relatively small area; that this dumping, without payment to Hero Lands, was for the purpose of raising the level of Hero Lands; and that Hero Lands allowed the use of Bucaneer Road for this purpose.

The legal issues are these: Does earth material removed from the servitude of drainage right of way belong to the owner of the land on which the servitude is granted with all rights of ownership, including right to sell and remove, or does such earth material belong to the grantee of the servitude? We must also determine if the sale of such material dug from the drainage servitude and the use of plaintiff’s property for the dumping of tree stumps was in violation of the zoning laws of Plaquemines Parish regulating the use of A-2 rural or agricultural property and whether defendants’ actions required either parish or state occupational licenses. At issue also is whether or not the use of Bucaneer Road for this purpose is in violation of the permit of March 5, 1974. Should defendant Hero Lands have first secured an occupational license from Plaquemines Parish? Plaintiff’s testimony is that dirt is vitally needed for preserving the efficiency and for the maintenance of the drainage system, including its levees, as well as the future development of the drainage system area. Plaintiff contends it should have reasonable control of the spoil area for a reasonable purpose; that it does not seek unlimited control; and that the control it seeks over the spoils is permitted under the provisions of L.R.S. 38:113, which reads:

“The various levee and drainage districts shall have control over all public drainage channels within the limits of their districts and for a space of one hundred feet on each side of the channel, selected by the district and recommended and approved by the Department of Public Works, whether the drainage channels have been improved by the levee or drainage district, or have been adopted without improvement as necessary parts of or extensions to improved drainage channels, and may adopt rules and regulations for preserving the efficiency of the drainage channels.”

Justice v. Bourgeois, 288 So.2d 106 (La.App.4th Cir. 1974), is relied upon by defendants as authority for their right to remove and sell the spoil from the servitude. The court said at page 109:

“We first consider the question of ownership of the soil dredged from the canal. The case of Scott v. Red River-Bayou Pierre Levee & D. Dist., 7 So.2d 429 (La. App.2d Cir. 1942), discussed Act 61 of 1904 (LSA — R.S. 38:113) and determined that the authority granted to the governmental agency over private property was restricted to maintaining the efficiency of the public drainage channels and did not vest the ownership in the levee or drainage district. As pointed out in the case of Grayson v. Commissioners of Bossier Levee District, 229 So.2d 139 (La.App.2d Cir. 1969), the Scott case did not hold that Act 61 of 1904 created an additional servitude for drainage other than the one provided by LSA-C.C. art. 665. Under the reasoning of Scott, we conclude in this case the spoil dredged from the canal on the Justice property is one of the rights of ownership vested in the plaintiffs, and therefore the Parish had no authority to give it away.”

The Court of Appeal for the Second Circuit in Scott v. Red River-Bayou Pierre Levee and D. Dist., 7 So.2d 429 (1942), rejected the drainage district’s contention that the “control” envisioned in the statute was all-encompassing. Said the Court:

“It is our opinion the control vested in the drainage District by said Act has reference only to maintaining the efficiency of the canal after it has been constructed and does not vest ownership of the strip of land in the drainage District. * * * ” 7 So.2d at 432.

We agree with defendants’ position that Justice v. Bourgeois, supra, decided that the spoil dredged from the canal servitude belongs to the landowner, not to the public body. Plaintiff does not deny defendants’ ownership of the spoil, but does dispute defendants’ right to remove and/or sell the spoil without the permission of plaintiff. Justice recognized that spoil dredged from the drainage canal was a right of ownership vested in the property owner, and the parish which dredged the canal pursuant to the servitude had no right to give it away. Justice did not give the landowner the right to remove the spoil taken from the area of the servitude without the consent of the parish enjoying the servitude. There is no pretense that Plaquemines Parish acquired anything more than a servitude of drainage over the land in question. It did not acquire ownership of the land or the spoil. But we hold that plaintiff has the use and control of the spoil so long as it is used or may be used in connection with the drainage servitude from which it was dug and further hold that defendants cannot give away or remove the spoil and/or sell same without the consent of plaintiff. Chalin Perez, President of the Plaquemines Parish Commission Council, testified:

“Q In your opinion as the head of the Commission formal government which makes you head of both the legislature as well as the executive functions of this Parish, is there essential and necessary use for that soil for public purposes as provided for drainage and levee fills as was removed from the servitudes that’s in litigation here?
A There is no question that the need is there and that the material will be used at some time. Mr. Hero immediately in front of that area now proposes to build a subdivision. It is quite conceivable that we might, have to close up some of these open canals and which may require that that material might be used to cover up the pipes. It is impossible to say when it will be needed, but for the public needs,, there will be several purposes.” (Emphasis added.)

The Parish did acquire from Hero Lands a personal servitude, a right of use to dig and maintain a drainage canal.

“A right of use includes the rights contemplated or necessary to enjoyment at the time of its creation as well as rights that may later become necessary, provided that a greater burden is not imposed on the property unless otherwise stipulated in the title.” C.C. art. 642.

It does not take a stretch of the imagination to recognize that use of the spoil removed from the dredged canal might again be needed to increase or decrease the flow of water through the drainage canal. This is certainly an accessory right of use contemplated or that should have been contemplated by defendants when granting this servitude of drain.

Defendants argue that:

“The second clause of Article 642 qualifies the grant of accessory rights to the servitude owner with the important proviso that ‘a greater burden is not imposed on the property unless otherwise stipulated in the title’. Nowhere in the agreement is there any stipulation that the Drainage District will own the spoil or control the servitude right-of-way to such an extent as to deprive the landowner from removing the spoil or using it himself.
“As previously noted, the primary reason that Hero Lands began to remove the spoil in 1970, was for the purpose of improving the surface drainage of its own land. If the Drainage District is permitted to store the spoil excavated from the canal and Hero Lands is forced to endure the resulting poor drainage of its land, a greater burden will be imposed on the property, and this is clearly prohibited by Article 642.”

We do not agree. L.R.S. 38:113 does anticipate limited control by the Parish over this spoil to maintain the efficiency of the drainage channel. In our opinion this limited control of the spoil does not impose a greater burden on the property than was anticipated by the granting of the servitude. A servitude includes such accessory rights as may be necessary for its exercise and the landowner cannot diminish the servitude owners’ rights or make the exercise of them more difficult or inconvenient. Rock Island, A. & L. R. Co. v. Gournay, 205 La. 164, 17 So.2d 21 (1944); Patout v. Lewis, 25 So. 134 (La.1899); and Arkansas Louisiana Gas Co. v. Cutrer, 30 So.2d 864 (La.App.2d Cir. 1947).

We agree with .defendant Hero Lands that its actions in selling the spoil from the servitude right of way and permitting the occasional deposit of tree stumps on its land are, at most, accessory uses and therefore not violations of the Plaquemines Parish zoning ordinances; nor are such actions to be construed as the conducting of businesses that would require the securing of occupational licenses. Thus should Hero Lands apply for and secure consent to remove spoil from the property on which it has granted a servitude or from its other lands not subject to the servitude or control of the Parish it would not be in violation of the parish zoning ordinances. Plaintiff’s selling of earth material from its own land or permitting the occasional dumping of tree stumps thereon to improve low areas are permitted accessory uses of the land and not the operation of businesses requiring permission from the Parish or parish and/or state occupational licenses. The Plaquemines Parish ordinance permits “accessory” uses of property defined as that “which is incidental to the main use of the premises and ‘accessory uses’ when located on the same lot” are expressly permitted in the A-l district. In A-2 districts, such as the subject property, all uses permitted in the A-l district are .allowed. Therefore defendants may use their property for accessory purposes. We hold that the sale of spoil and the dumping of tree stumps to raise the level of the Hero Lands tract adjacent to Bucaneer Road are accessory uses incidental to the main use of the premises and are allowable under the A — 11 zoning classification of Plaquemines Parish. It follows, therefore, that defendants should not be enjoined from using Bucaneer Road for these legal private purposes, which uses are not in violation of the letter of permission of March 5, 1974.

Plaintiff in urging the need for defendants to secure an occupational license relies on Section 6 of Ordinance 10, which provides:

“For every business of selling building materials at retail, such as sand, gravel, lumber, cement, brick, stone or other building material, whether the business be conducted as principal, or agent on commission, or otherwise, the license shall be- fixed and graded in classes, and for each separate establishment, there shall be a separate license fixed and graded in classes, which said grades, classes and rate of tax are hereby declared to be the same as those set forth in R.S. 47:353 as amended.”

We do not find that defendant Hero Lands was conducting the business of selling earth material within the meaning of this provision. Furthermore the record does not support the finding that Hero Lands was operating a land fill business and accordingly was not violating the zoning ordinance or parish or state requirements for an occupational license. The word “business” is not defined in the revised statutes dealing with occupational license taxes. However, for sales tax purposes, which are extremely broad, “business” is defined as not including “the occasional and isolated sales by a person who does not hold himself out as engaged in business” L.R.S. 47:301(1). “Engaging in business in this state” is defined as including: “[Mjaintaining directly, indirectly, or through a subsidiary, an office, distribution house, sales house, warehouse, or other place of business or by having an agent, salesman or solicitor operating within the state under the authority of the seller or its subsidiary irrespective of whether such place of business, agent, salesman or solicitor is located in this state permanently or temporarily or whether such seller or subsidiary is qualified to do business in this state”. L.R.S. 47:301(4)(h).

Hero Lands did not “engage in business” as contemplated by L.R.S. 47:301(4)(h). It is an established principle that an isolated or occasional transaction does not constitute the doing of business as contemplated by the occupational licensing law.

In view of our holding that defendants have not violated the Plaquemines Parish zoning ordinance, the Parish’s occupational license permit ordinance or the state occupational license law there is no need to address the issue of whether or not the Parish can enjoin an activity which it would also prosecute as an ordinance violation.

We affirm the judgment of the trial court so far as it orders a preliminary injunction enjoining all defendants from excavating or removing without permission of the Plaquemines Parish Commission Council earth material from the servitudes in the Parish of Plaquemines which are the subject of this suit. In all other respects the judgment appealed from is reversed and the case is remanded for further action consistent with the opinions expressed herein.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.


author: CHEHARDY, Judge. GULOTTA, Judge,

text:
    Sidney BAZLEY v. Sordo TORTORICH, Aetna Life and Casualty Co., and Fireman’s Fund Insurance Companies.
    No. 10757.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 7, 1980.
    Rehearing Denied March 17, 1980.

      Steven M. Koenig, New Orleans, for plaintiff-appellant.
    Beard, Blue, Schmitt, Mathes, Koch & Williams, Melvin W. Mathes, New Orleans, for Fireman’s Fund Ins. Companies, defendant-appellee.
    McCann & Volk, John J. McCann, New Orleans, amicus curiae on behalf of Academy of New Orleans Trial Lawyers.
    Before GULOTTA, CHEHARDY and HOOD, JJ.
   CHEHARDY, Judge.

This' is a case in tort wherein Sidney Bazley sues Fireman’s Fund Insurance Companies (the insurer of a co-employee of the plaintiff), Sordo Tortorich and his insurer (Aetna Life & Casualty Co.) for personal injuries sustained as a result of an accident.

The district court sustained the defendant Fireman’s Fund’s exception of no cause of action on the ground that Mr. Bazley’s exclusive remedy is under the Louisiana Workmen’s Compensation Act against this defendant. Plaintiff’s suit, therefore, as to his co-employee’s insurer, was dismissed; and he now appeals.

Mr. Bazley alleges that on or about June 29, 1977, he was employed by the Jefferson Parish Sanitation Department and working in the course of his employment in the 500 block of Grefer Lane near its intersection with Jennie Street in Harvey, Louisiana. He further alleges that as he was attempting to step up to the rear of the garbage truck he was struck by a 1970 Chevrolet owned by Sordo Tortorich, which was proceeding north on Grefer Lane. Plaintiff also states that the street was a two-lane undivided one and that the garbage truck was stopped and blocking traffic, causing traffic travelling north to swerve around it. In an amended petition, the plaintiff further alleged that his co-employee was guilty of intentional acts, which resulted in Mr. Bazley’s injury.

The issues in this case are:

1. Does Louisiana Revised Statute 23:1032, as amended by Act 147 of 1976, which extends tort immunity to any principal, employer, officer, director, stockholder, partner or employee of an employer contravene Article 1, Section 22 of the Louisiana Constitution of 1974 and the United States Constitution because it constitutes a denial to workers of equal protection and due process?
2. Can this court consider a constitutional issue concerning a statute that was not specifically pleaded in the trial court?
3. Did the plaintiff allege sufficient facts for a trier of fact to possibly conclude that the accident was caused by the intentional acts of his co-employee?

Regarding the necessity of having to specifically plead the unconstitutionality of a statute for it to be considered by the appellate court, in Osborn Funeral Home v. Louisiana St. Bd. of Embalm., 194 So.2d 185, 188 (La.App. 2d Cir. 1967), the court observed:

“ * * * The rule is, however, well éstablished that he who urges the unconstitutionality of a statute not only must especially plead its unconstitutionality but must show specifically wherein it is unconstitutional, and that such issues not presented by the pleadings are not properly before the court and consequently cannot be considered on appeal. A Sulka & Co. v. City of New Orleans, 208 La. 585, 23 So.2d 224, 229 (1945); Stovall v. City of Monroe, 199 La. 195, 5 So.2d 547, 552 (1941); Mouledoux v. Maestri, 197 La. 526, 2 So.2d 11 (1941); State v. Great Atlantic & Pacific Tea Co., 190 La. 925, 183 So. 219 (1938); City of Shreveport v. Pedro, 170 La. 351, 127 So. 865 (1930); State ex rel. Curtis v. Ross, 144 La. 898, 81 So. 386 (1919); Mitchell v. Louisiana State Board of Optometry Examiners (La.App.) 146 So.2d 863, 869 (3d Cir. 1962); DeBlanc v. DeBlanc (La.App.) 18 So.2d 619, 623 (Orl.1944).”

However, in the present case, the unconstitutionality of the statute in question (LSA-R.S. 23:1032), although not pleaded by the plaintiff, was raised only in response to Fireman’s Fund’s urging of the exception of no cause of action. In Butler v. Flint-Goodridge Hospital of Dillard University, 347 So.2d 1308 (La.App. 4th Cir. 1977), the court entertained an appeal on the constitutionality of the Revised Statute which requires submission of a medical malpractice claim to a medical panel prior to institution of a suit. There, the unconstitutionality of the statute had been raised in the trial court via an opposition to an exception of prematurity filed by defendants. (This court also held that the Attorney General need only be impleaded when declaratory relief has been sought by the plaintiff in regard to the statute in question.)

Therefore, the question of unconstitutionality of LSA-R.S. 23:1032 as amended by Act 147 of 1976 is properly before this court. LSA-R.S. 23:1032, as amended by Acts 1976, No. 147, § 1 says:

“The rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said injury, or compensable sickness or disease. For purposes of this Section, the word ‘principal’ shall be defined as any person who undertakes to execute any work which is a part of his trade, business or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof.
“Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.
“The immunity from civil liability provided by this Section shall not extend to: 1) any officer, director, stockholder, partner or employee of such employer or principal who is not engaged at the time of the injury in the normal course and scope of his employment; and 2) to the liability of any partner in a partnership which has been formed for the purpose of evading any of the provisions of this Section.”

Under this section, therefore, an employee cannot sue an employer or any officer, director, stockholder, partner or employee of such employer or principal in tort for injuries sustained on the job, but must resort to a workmen’s compensation claim as his exclusive remedy, unless the act of the co-employee was “intentional.”

If we interpret this section to mean that when the defendant officer, agent or employee has breached his duty to an employee or co-employee through personal acts, he is Hable for such acts, then it is possible for this court to uphold LSA-R.S. 23:1032 as amended as constitutional. This court will therefore be following the mandate that:

“The general rule is that every statute is presumed to be constitutional, and the court is bound to uphold the constitutionality of a statute when it is reasonably possible to do so. * * * ” City of Natchitoches v. State, 221 So.2d 534, 544 (La.App. 3d Cir. 1969).

This circuit in Johnson v. Narcisse, 373 So.2d 207, 209 (1979), observed regarding LSA-R.S. 23:1032 as amended by Act 147 of 1976:

“ ‘In discussing this problem, the court in Guidry v. Aetna Casualty and Surety Co., 359 So.2d 637 (La.App. 1st Cir., 1978), writ denied, 362 So.2d 578 (La.1978), stated that in order to constitute the requisite intent to result in civil liability, the defendant must have entertained a desire to bring about the result which followed and he should have believed that the result was substantially certain to follow. The court then held that although the statute (LSA-R.S. 23:1032) does not affect an employer’s tort liability for his intentional acts, “Plaintiff’s petition fails to state a cause of action for the reason that it does not allege that the acts of Charles Dickey (the fellow employee) were done with the requisite intent to cause injury to plaintiff.” Guidry, supra. Therefore, it is the opinion of this Court that the plaintiff in the instant case does not state a cause of action.’ ”

In Johnson, supra, the issue of constitutionality was not before the court and under that circumstance, its adherence to the rule of Guidry, supra, was proper. However, the question of constitutionality is before the present court and is being addressed.

We do not feel that it is necessary that a co-employee or executive officer “have entertained a desire to bring about the result that followed” in order for his actions to be considered “intentional” under the amended statute. Such an interpretation would, in effect, extend total immunity in tort to partners, executive officers and co-employees for their negligent acts against co-workers and would result in an unconstitutional interpretation of the statute as amended by the 1976 act.

Webster’s New International Dictionary, Second Edition, 1934, defines the word “intentional” thus:

“Intention, which often suggests little more than what one means or proposes to do, implies less determination than purpose, less definite plan or prearrangement than design, which frequently adds the implication of crafty or artful scheming.”

The court said in Weir v. Commissioner of Internal Revenue, 109 F.2d 996, 997 (Circuit Court of Appeals, 3d Cir. 1940):

“ * * * ‘ * * * “Intent” may be used in at least three distinct legal meanings. It may designate simply the exercise of will power necessary to cause muscular or physical movement. This concept is, of course, irrelevant in the field of tax law. Secondly, it may denote the immediate result desired by the actor. Thirdly, it may signify the ultimate reason for aiming-at that immediate objective. At this point, however, intent shades into motive, which is really the ulterior intent or the cause of the intent. Intent, in other words, is the object of the act; motive, in turn, is the object or spring of the intent. * * * ’”

We do not believe the legislature’s intent was to read malice into the word “intentional.”

In the present case the plaintiff alleges that his co-worker was guilty of “intentional acts” by:

Operating an unsafe and hazardous garbage truck;
Continuing the operation of the aforesaid garbage truck when he acknowledged that it was unsafe and hazardous;
Operating the said garbage truck in the absence of a working horn;
Conscious disregard of safe and reasonable mechanical and electrical maintenance standards;
Failure to keep a proper lookout;
Failure to see what he should have seen;
Failure to avoid the collision;
Stopping the garbage truck in a dangerous position;
Failing to stop the garbage truck on the shoulder of the road; and
Failing to warn the plaintiff of an oncoming danger.

We hold that the plaintiff has alleged sufficient intentional acts on the part of his co-employee to state a cause of action. We therefore must reverse the trial court’s dismissal of his case on the exception of no cause of action.

In the recent case of Burmaster v. Gravity Drainage Dist. No. 2, 366 So.2d 1381, 1387 (La.1978):

“Where an injury has occurred for which the injured party has a cause of action, such cause of action is a vested property right which is protected by the guarantee of due process. See Gibbes v. Zimmerman, 290 U.S. 326, 332, 54 S.Ct. 140, 78 L.Ed. 342 (1933); Pritchard v. Norton, 106 U.S. 124, 132, 1 S.Ct. 102, 27 L.Ed. 104 (1882). However, where the injury has not yet occurred and the cause of action has not yet vested, the guarantee of due process does not forbid the creation of new causes of action or the abolition of old ones to attain permissible legislative objectives. See Silver v. Silver, 280 U.S. 117, 122, 50 S.Ct. 57, 74 L.Ed. 221 (1929). Our jurisprudence has recognized the validity of legislative regulation of causes of action, including replacement and even abolition, that one person may have against another for personal injuries. See Ancor v. Belden Concrete Products, Inc., 260 La. 372, 256 So.2d 122 (1971); Colorado v. Johnson Iron Works, 146 La. 68, 83 So. 381 (1919); see also Heirs of Fruge v. Blood Services, 506 F.2d 841 (5th Cir. 1975).”

It is clear that the legislature can abolish a cause of action “to obtain permissible legislative objectives.” However, if the word “intentional” is construed as immunizing executive officers and co-employees from all tort liability that is the result of a breach of a duty to the employee suing, then we are giving an unconstitutional interpretation to the 1976 act amending the statute.

What was the State’s objective in enacting its Workmen’s Compensation laws, generally, and, more specifically, this particular section; and does this section bear a rational relationship to those interests?

The Louisiana Supreme Court, in explaining generally the Workmen’s Compensation Statute, said in Atchison v. May, 201 La. 1003, 10 So.2d 785, 788 (1942):

“ * * * The act, which is social legislation, was passed for the joint benefit of labor and management in order to insure that employees who became disabled as a result of their labors in hazardous industries would have, during the period of their disability, a weekly income for the upkeep of themselves and their families. It was also deemed advisable to provide for compensation, in cases of death, to the persons dependent upon the employee for support so that these persons would not be entirely bereft of funds during the period of time following the employee’s death when they, of necessity, were compelled to reconstruct their lives and seek a means of support, — thus avoiding the possibility that these persons would become public charges. In order that this end might be accomplished, the Legislature provided for sacrifices to be made by both the employer and the employee. The employee was required to waive the right granted him under the general law, Article 2315 of the Civil Code, in consideration of receiving a fixed percentage of his wages during the period of his disability. The employer, on the other hand, was deprived of the defenses afforded to him by the general law and he was assured that, in case any of his employees were injured, they would be entitled to no more than the amount stipulated in the statute as compensation during the period of disability. * * * ”

It is difficult to imagine, therefore, how an extension of tort immunity to include negligent acts of all executive officers and co-employees, which result in an employee’s injury, could possibly serve to further the ends discussed in Atchison, supra.

Regarding the equal protection question, the court further stated in Burmaster, supra, on pages 1386 and 1387:

“Both the state and federal constitutions mandate equal protection of the laws. U.S.Const. amend. XIV; La.Const. art. 1, § 3. The equal protection guarantee of our constitution, however, was intended only as a restatement of the federal equal protection clause. State v. Barton, 315 So.2d 289 (La.1975).
“Generally, the guarantee of equal protection requires that state laws affect alike all persons and interests similarly situated. Succession of Robins, 349 So.2d 276 (La.1977). Where, as here, there is no involvement of a ‘suspect classification’ or ‘fundamental right,’ traditional equal protection analysis sustains a classification if it is not arbitrary and bears a rational relationship to a legitimate state interest. Everett v. Goldman, 359 So.2d 1256 (La.1978); Succession of Robins, supra; State v. Everfield, 342 So.2d 648 (La.1977). The legislature has a wide scope of discretion in enacting laws which affect some groups of citizens differently from others. The constitutional safeguard of equal protection is offended only if the classification rests on grounds wholly irrelevant to the achievement of the state’s objective. McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961).”

If LSA-R.S. 23:1032 is interpreted as extending total immunity in tort to executive officers and co-employees, then an arbitrary class of third parties who are immune to suit will be created, while withholding this immunity in tort from other third parties. The creation of this class, moreover, will bear no rational relationship to a legitimate state interest.

The courts have said, in such cases as Veillion v. Knapp & East, 158 So.2d 336 (La.App. 3d Cir. 1963), writs refused January 21, 1964, at page 340:

“ T can readily understand how an employer, who finds an employee, to whom he is paying workmen’s compensation, working on another job as an ironworker without any restrictions so far as his job referral is concerned, would find it hard to understand why he should continue to pay such a man workmen’s compensation. This is particularly true inasmuch as compensation, in principle, is supposed to cover a loss of earnings resulting to an employee during the time of his disability, and charge such loss to industry as an ordinary business expense. It is not necessarily designed to make him whole again. * * * (Emphasis ours.)

This, of course, is the reason that the workers’ rights have been preserved against third parties who are not the employer. To limit those rights by extending tort immunity to such an extent would cripple our Civil Code Article 2315.

As cited above in Atchison, supra, there was a substantial quid pro quo inherent in the original Workmen’s Compensation Act. Both employer and employee gave up rights and in return received certain benefits from the act. Therefore we do not question that acts of an employer must be “intentional” within the meaning of Guidry, supra, before such employer can be liable in tort. But where is the quid pro quo for the further exemption of executive officers and co-employees from tort liability?

In Green v. Liberty Mut. Ins. Co., 352 So.2d 366, 369 (La.App. 4th Cir. 1977), writ refused, La., 354 So.2d 210 (1978), the court said:

“ * * * We do not deem Act 147 of 1976 a clearer restatement of the original section of the compensation law. Rather we think it is a change * *

Regarding the work of the Louisiana Legislature for the 1976 Regular Session, 37 La.L.Rev. 89, 183 said:

“Although the new provision decreases the avenues of relief open to injured employees, the increased benefits made possible by the 1975 workmen’s compensation amendments might be sufficient to provide for employees so that the additional tort remedies formerly allowed by the courts are no longer necessary.
* * * * * *
“Perhaps as a response to the legislation limiting the availability of tort suits by an injured employee, the House and Senate considered, but did not pass, bills which would have increased available compensation benefits. The proposals would have required that the employer pay double the weekly benefits due to an employee if an injury resulted from the employer’s violation of a safety rule, his failure to provide a safety device, or some gross negligence on the part of a supervisory employee. * * * ”

If we extend tort immunity this far, there will be no quid pro quo provided for these decreased avenues of relief for employees. Perhaps if the proposals for double payment of benefits had passed, however, there might have been a constitutionally required substitute. Moreover, the increased benefits of the 1975 amendments do not provide a quid pro quo since they were passed a whole year before the 1976 amendment.

Article 1, Section 22 of the Louisiana Constitution of 1974, states:

“All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights.”

This does not create tort actions but simply provides that when tort actions are created by the legislature, people have recourse to the courts to enforce rights given them in LSA-Const. 1974 art. 1, § 22. The statute being attacked here is an act of the legislature, and we find no constitutional infirmity as to that statute. Our concern, however, is to interpret the meaning of the statute and particularly the meaning of the word “intentional.”

It is our obligation to give a constitutional interpretation to the meaning of “intentional” as used in this statute if such is possible. We do not find this to be a problem. If the legislature had intended total immunity under any circumstances for such offenses it could have done so.

However, in ascribing the interpretation we give herein to the word “intentional” as used in LSA-R.S. 23:1032 we are able to maintain the constitutionality of this statute as amended.

In other words, any action of an executive officer, principal, director, stockholder, partner, or co-employee, which, if committed by a third party, would cause that third person to be liable in damages to an injured employee, then such action will also render liable such executive officer, principal, director, stockholder, partner, or co-employee.

Therefore, stated another way, we interpret the word “intentional” as used in LSA-R.S. 23:1032 as amended by acts of 1976 No. 147, Section 1 as follows: The only duty which an executive officer, principal, director, stockholder, partner, or co-employee of a corporation owes to a third person, whether he be an employee of the corporation or a complete stranger, is the same duty to exercise due care not to injure him which any person owes to another. If an injury is sustained by a third party as the result, of the independent negligence of the corporate officer, or as the result of a breach of the duty which that officer, as an individual, owes to the third party, then the injured third party may have a cause of action for damages against the officer personally. See LSA-C.C. arts. 2315 et seq. Insofar as the personal liability of the corporate officer to the third party for damages is concerned, however, it is immaterial whether his breach of duty towards the third person also constitutes a breach of duty to the corporation.

Accordingly, therefore, we reverse the trial court’s dismissal of the plaintiff’s case on the exception of no cause of action, and we remand the case to the lower court for trial on the merits. All costs are to await final disposition of this matter.

REVERSED AND REMANDED.

GULOTTA, J., concurs with written reasons.

HOOD, J., concurs in the result.

GULOTTA, Judge,

concurs.

I concur. I am in full accord with the reasoning that R.S. 23:1032 as amended, does not confer total immunity from liability upon executive officers and co-employees. The petition in this case alleges acts on the part of the co-employee, which if committed by a third party, would cause that third person to be liable in damages. I am of the opinion that under these circumstances an executive officer or employee may be liable. The petition in my opinion states a cause of action.

HOOD, J., concurs in the result.


text:
    Penny Jane Gordon, wife of/and John Howard ALLEN v. Dr. Ernest E. CHERRIE, Jr., and South Jefferson General Hospital.
    No. 10770.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 7, 1980.
    Joseph Neves Marcal, III, New Orleans, for plaintiffs-appellants.
    Adams & Reese, Harold A. Thomas, New Orleans, for Ernest E. Cherrie, Jr., M. D., defendant-appellee.
    McGlinchey, Stafford & Mintz, C. G. Nor-wood, Jr., Suzanne P. Keevers, New Orleans, for Sara Mayo Hospital, defendant-ap-pellee.
    Before GULOTTA, CHEHARDY and HOOD, JJ.
   CHEHARDY, Judge.

Plaintiffs, Penny Jane Gordon, wife of/and John Howard Allen, appeal from a trial court judgment maintaining the exception of prescription filed by defendants, Ernest E. Cherrie, Jr., M.D., and Sara Mayo Hospital, and dismissing plaintiffs’ suit as to these two defendants.

On October 4, 1975, Dr. Ernest E. Cher-rie, Jr., attended the birth of Penny Jane Gordon’s child at Sara Mayo Hospital. After the birth, plaintiff suffered continuous menstrual bleeding up to and through November 24,1975, on which date she obtained the services of another doctor who performed treatment necessary to remove what was referred to as “after birth” ap-' parently left in the vaginal canal after the birth of the child.

On October 4, 1976, plaintiffs-appellants filed suit in Jefferson Parish alleging that on October 4, 1975, Dr. Cherrie and/or South Jefferson General Hospital had committed malpractice in the delivery of plaintiffs’ child.

The record shows personal service on South Jefferson General Hospital through Ruth Orgeron on October 7, 1976. Attempted service of Dr. Cherrie was returned as not served — subject unknown.

On March 30, 1978, an amendment was filed alleging that Sara Mayo Hospital was, in fact, the correct hospital. The original and amending petitions were then served on Dr. Cherrie on April 8, 1978 and on Sara Mayo Hospital on April 11, 1978.

Defendants, both of whom were domiciled in New Orleans, excepted to the venue on May 8, 1978.

Plaintiffs then filed, on June 5, 1978, a motion and secured a transfer of the case to Orleans Parish. The defendants, Sara Mayo Hospital and Dr. Ernest E. Cherrie, Jr., filed an exception of prescription based on the original suit being filed in a court of improper venue and service of citation was not effected on either defendant until well after the year had run.

L.R.S. 9:5801 provides:

“All prescriptions affecting the cause of action therein sued upon are interrupted as to all defendants, including minors or interdicts, by the commencement of a civil action in a court of competent jurisdiction and in the proper venue. When the pleading presenting the judicial demand is filed in an incompetent court, or in an improper venue, prescription is interrupted as to the defendant served by the service of process.”

The commencement of a civil action is sufficient to interrupt prescription when filed in a court of competent jurisdiction. However, it is clear that if suit is filed in an incompetent court or in- an improper venue, prescription will only be interrupted if there is service of citation within the prescriptive period, which in this case is one year. Service in this case was not made on defendants until well after the one-year prescriptive period had run. Accordingly, we affirm the judgment maintaining the plea of prescription.

AFFIRMED.


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    James Paul WOOD v. AMSTAR CORPORATION.
    No. 10979.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 7, 1980.
    Rehearing Denied March 17, 1980.
    Gertler & Gertler, M. H. Gertler and Harry Forst, New Orleans, for plaintiff-appel-lee.

      Chaffe, McCall, Phillips, Toler & Sarpy, James A. Babst, New Orleans, for defendant-appellant.
    Before GULOTTA, CHEHARDY, and HOOD, JJ.
   CHEHARDY, Judge.

This is an appeal under the Louisiana Workmen’s Compensation law by defendant-appellant, Amstar Corporation, from a judgment awarding plaintiff-appellee, James Paul Wood, total permanent disability payments of $95 per seek for the period of his disability; legal interest; costs of these proceedings; future medical, surgical and hospital expenses; $6,189.85 for Methodist Hospital’s medical bill; certain expert fees; and $304 for Dr. Michael Finn’s bill.

Plaintiff-appellee, James Paul Wood, filed his suit for workmen’s compensation on October 19, 1977, alleging that on May 16, 1977 he suffered a serious heart attack, the sole and proximate cause of which was his employment at Amstar. It was stipulated between plaintiff and defendant that if plaintiff would be entitled to compensation, it would be the maximum of $95 per week.

The record establishes that plaintiff was a laboratory analyst, whose job required him to climb ladders over and into large storage tanks to get sugar samples, to lift and carry heavy samples, and in the performance of his duties he would stand on his feet half of the time. Plaintiff testified that it was part of his job periodically to lift weight samples of two, ten, twenty and up to fifty pounds; that his last heavy assignment required him to “carry some two hundred pounds and fifty pounds from the ninth floor to the second floor and this went on for approximately two weeks.”

On May 16, 1977, plaintiff, who testified that he felt fine before reporting to work, parked his car and walked up the twenty-five steps, as was his custom, to the laboratory, where he started feeling dizzy. Shortly thereafter, a little after 4 p. m., he began to feel out of breath, started to perspire very heavily and began having blurry vision. Within a short time he could not see, was sweating profusely and getting weaker and weaker. Plaintiff then left the office and further testified:

“ * * * As I left I was getting weaker and weaker and I was holding on the handrail down the steps. I came up on, I was resting and stopping in between. I didn’t have any help. The entire time then I got to the front gate and the guard there, Richard Ford, must have realized something was wrong and he told me to sit down and he pulled out some type of stool and I sat down and I got up and I said I needed help and I am going to see if the nurse is here. * * ”

Plaintiff, not finding a nurse, returned to the gate to await his wife who came and took him to Methodist Hospital. His wife testified that from May 16, 1977 “up to the 24th he was drugged and never was himself.”

The medical testimony establishes that plaintiff suffered an attack of angina pec-toris on May 16, 1977 and a heart attack, or myocardial infarction, on May 24, 1977. The medical testimony indicates that the attack on May 16 was angina pectoris, a painful warning of a possible myocardial infarction, or heart attack, which plaintiff did finally suffer on May 24, 1977.

Sometime between May 21 and May 23 plaintiff received a letter on stationery of Amstar Corporation, dated May 19, 1977, which, in addition to asking for information from plaintiff and his physician, stated:

“Dear James Wood,
According to our records, you will be absent more than five (5) working days if you do not report for work on or before _and in accordance with the Labor Agreement, you shall be deemed to have voluntarily quit if you do not have the permission of your Foreman or the Personnel Office to be absent or do not have a satisfactory explanation for your absences. If you are absent due to illness or injury, the information requested in Section A and B of this form must be presented to the Personal Office before you can be considered for reinstatement to work.
To help you protect your seniority rights and comply with the provisions of the Absentee Policy, this form is being sent to make it convenient for you and your physician to furnish the necessary information which is required. Please complete Section A and have your physician complete Section B as follows:
If you are not'able to report for work on or before the date in the first paragraph above, please complete 1 and 2 of Section A and have your physician complete 1 and 2 of Section B. Please mail the form to the Personnel Office, and another form will be sent to you.
When you are able to return to work, you must complete 1 and 3 of Section A and have your physician complete 1 and 3 of Section B. Bring the form with you when you report to the Refinery for reinstatement and examination by the Plant Physician.
Very truly yours,
[Signed] C. E. Gram, Jr.
C. E. Gram, Jr., Personnel Manager”

Dr. Michael C. Finn testified that receipt of a letter construed as a threat to job security and resultant emotional stress could cause plaintiff to go into an infarction.

The court made a factual finding based on medical and lay evidence that there was an accident under the Louisiana Workmen’s Compensation Act; that there is a disability; and that there is a causal connection between the accident and plaintiff’s disability. We do not find that manifest error necessary for us to disturb the trial court’s factual finding. See Canter v. Koehring Company, 283 So.2d 716 (La.1973).

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.


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    Melba Campbell ADAMS v. Dolvis Eric ADAMS.
    No. 11001.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 7, 1980.
    Rehearing Denied March 17, 1980.

      O’Dowd & O’Dowd, George O’Dowd, New Orleans, for plaintiff-appellant.
    John W. Robinson, Gretna, for defendant-appellee.
    Before GULOTTA, CHEHARDY and HOOD, JJ.
   CHEHARDY, Judge.

Plaintiff, Melba Campbell Adams, filed suit against her husband, Dolvis Eric Adams, for separation from bed and board under C.C. art. 138(5), namely, abandonment without just cause. Defendant denied plaintiff’s allegations and reconvened for a separation asserting he left the matrimonial domicile with just cause in that his wife was guilty of cruel treatment. C.C. art. 138(3). From a judgment granting Mrs. Adams a separation on a finding that her husband abandoned her, which further held that plaintiff herself was not without fault, she has appealed.

The effect of the judgment is to deprive her of permanent alimony authorized by C.C. art. 160 in that the spouse seeking post-divorce alimony must establish freedom from fault.

Under C.C. art. 141 it is permissible to grant a judgment of separation to one spouse and find that the mutual fault of both led to the dissolution of the marriage. However, when the ground for separation is abandonment, it is inconsistent to adjudicate the abandoned spouse at fault because C.C. art. 143 specifies abandonment only takes place when a spouse leaves without lawful cause. That article provides:

“Separation grounded on abandonment by one of the parties can be admitted only in the case when he or she has withdrawn himself or herself from the common dwelling, without a lawful cause, has constantly refused to return to live with the other, and when such refusal is made to appear in the manner hereafter directed; provided, however, that separation grounded on abandonment may be the object of a reconventional demand in any suit for separation from bed and board.”

This court adopted the same reasoning in Dixon v. Dixon, 357 So.2d 856 (1978).

Appellant points out the conflict in the result reached by the trial court and argues from it that we must logically reverse the finding by the court that the wife was not without fault.

We disagree. Having found mutual fault or having concluded the wife must share softie of the responsibility for her husband’s abandonment, we conclude rather that it is questionable whether the wife was entitled to the judgment of separation on the merits. However the propriety of granting a separation on abandonment is not before us. The wife’s appeal is limited to the finding by the trial court that she is not without fault. Because neither litigant appealed the judgment of separation within 30 days after the time for applying for a new trial elapsed, that judgment is now final (C.C.P. arts. 1974 and 3942). Appellant herself has limited the scope of the appeal to the finding that she was at fault. Thus the only question posed for our consideration is whether the record supports the trial court’s factual conclusion that Mrs. Adams shares responsibility for the dissolution of this marriage.

Defendant admittedly left the common dwelling. He claimed he was justified because his wife was jealous for no reason and accused him of numerous illicit relationships with other women. He testified he was never unfaithful to his wife but nonetheless his wife constantly checked up on him. Defendant and two co-workers testified that two or three times every week Mrs. Adams passed up and down the highway next to defendant’s place of employment at the lunch hour to check up on him. Mrs. Adams admits doing this on occasion and stated she became suspicious when her husband was 15 minutes late coming home in the afternoon. Mrs. Adams offered little evidence to support her accusation. We find no reversible error in the trial court’s conclusion that Mrs. Adams was at fault. Her harassment of defendant for unwarranted jealous suspicions of infidelity is sufficient ground to find her at fault within the contemplation of C.C. art. 141. See Watson v. Watson, 372 So.2d 639 (La.App. 1st Cir. 1979).

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

AFFIRMED.


author: HOOD, Judge.

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    Geneva DAVIS v. VISCO’S INC., Harold C. Curtis and U.S. Fidelity & Guarantee Co.
    No. 10618.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 7, 1980.
    Writ Refused March 28,1980.
    Roger J. Larue, Jr., Metairie, for plaintiff-appellant.

      Bienvenu, Foster, Ryan & O’Bannon, New Orleans, Leonard A. Young, New Orleans, for defendants-appellees.
    Before BOUTALL, SCHOTT and HOOD, JJ.
   HOOD, Judge.

Geneva Davis sues to recover damages for personal injuries sustained by her resulting from an alleged assault and battery committed by Harold C. Curtis. The defendants are Curtis, Visco’s Inc., and the latter’s insurer, United States Fidelity and Guarantee Company (USF & G). Curtis filed some exceptions which were overruled, but he filed no answer or other pleadings, and eventually plaintiff obtained a default judgment against him for the sum of $98,-750.00. Visco’s and its insurer answered, and as to them the case was tried by jury, with the result that a special verdict was rendered finding no fault on the part of Curtis. The trial judge rendered judgment consistent with the jury’s verdict, in favor of Visco’s and USF & G, and against plaintiff, dismissing plaintiff’s suit as to those defendants.

Plaintiff Davis appealed. None of the defendants appealed, and none of them answered the appeal which was taken by plaintiff.

The overall issue presented is whether the special finding of the jury that defendant Curtis was without fault is erroneous, and thus whether the decree of the trial court dismissing the suit as to Visco’s and USF & G should be reversed and judgment rendered in favor of plaintiff and against those defendants.

The preliminary default which was entered against Curtis was confirmed at the same time the case was tried by jury as to the other defendants. The trial judge thus heard the same evidence in confirming the default against Curtis as was heard and considered by the jury. The trial of the case was completed on February 9, 1979, and at the conclusion of the trial on that date two separate judgments were rendered by the trial judge. One was the above described default judgment in favor of plaintiff and against Curtis, and the other was the judgment in favor of defendants, Visco’s and USF & G, dismissing plaintiff’s suit as to those defendants.

Plaintiff is not seeking here to have the judgment rendered against Curtis amended, and since Curtis has not appealed we are not confronted with the issue of whether the judgment against him should be modified in any way. Our concern is solely whether the jury erred in its finding of no fault on the part of defendant Curtis, and whether the judgment dismissing plaintiff’s suit as to the remaining defendants should be reversed.

Plaintiff contends that the judge and jury, in a bifurcated trial, reached inconsistent decisions as to the fault and liability of the individual defendant, Curtis, and she argues that this court thus should disregard those conflicting decisions and make its own independent factual findings. She urges that the jury verdict be set aside as being manifestly erroneous, and that judgment be rendered in favor of plaintiff and against all of the defendants.

Ordinarily, the factual findings of the judge or jury will not be disturbed by the appellate court if the record contains credible evidence to support such findings. In an action, however, where both the trial judge and the jury had the power and authority to find facts necessary to determine the liability of a particular defendant, neither trier of fact is entitled to have the reviewing court accord greater weight to his or its factual findings. On appeal in such a case, the appellate court should make its own independent findings based on the record, without according any weight to the factual findings of either judge or jury. Aubert v. Charity Hospital of Louisiana, 363 So.2d 1223 (La.App. 4th Cir., 1978); DeVille v. Town of Bunkie, 364 So.2d 1378 (La.App. 3rd Cir., 1978); Thornton v. Moran, 348 So.2d 79 (La.App. 1st Cir., 1977); see also 341 So.2d 1136 and 343 So.2d 1065.

In Aubert, supra, where the judge and jury arrived at inconsistent factual findings, we said:

“On appeal neither trier of fact is entitled to have greater weight accorded to its factual findings. Therefore, it is necessary for the appellate court to make its own independent factual findings based on the record, without according any weight to the factual findings of either the judge or the jury when those findings are inconsistent.”

We agree with plaintiff that the above rule is consistent with our established jurisprudence. We have decided, however, that it is not applicable here. In the instant suit, the trial judge assigned written reasons for the default judgment which he rendered against defendant Curtis, and in those reasons he stated:

“It was the judgment of the Court that the witnesses and evidence produced by plaintiff for her case at trial established a prima facie case against the defendant Harold Curtis, as per Article 1702 of the Code of Civil Procedure; and plaintiff was thereupon entitled to confirmation of the default against Harold Curtis. This Court, without consideration of any of the testimony or evidence presented by the defendants, Visko’s, Inc. and U. S. Fidelity & Guarantee Company, did render and sign on February 9, 1979, a default judgment in favor of plaintiff and against Harold C. Curtis for $98,750.00, the same amount that plaintiff’s attorney had requested for damages at trial. This default judgment is to be no way considered as in conflict with or contradictory to the judgment of February 9, 1979, dismissing Visko’s Inc. and U. S. Fidelity & Guarantee Company, as per the jury verdict.”

It is clear from the above reasons for judgment that in determining that a default judgment should be rendered against defendant Curtis, the trial judge considered only the evidence which was produced by plaintiff. He did not consider any of the testimony or evidence presented by the defendants. The explanation made by the trial judge that the default judgment which he rendered was in no way to be considered as being in conflict with or contradictory to the judgment rendered in favor of the two remaining defendants, emphasizes the fact that he did not consider all of "the evidence which was presented to and considered by the jury.

We presume, as he must, that the jury performed its duty and considered a 11 of the evidence which was presented to it. In this case, therefore, where the trial judge specifically stated that he considered only a part of the evidence, that he did not consider all of it, and that he did not intend for his factual findings to be in conflict with or contradictory to those of the jury, we feel that the factual conclusions reached by the trial judge as to the fault or liability of defendant Curtis should not be considered as being inconsistent with those of the jury. Certainly, the findings of the judge and those of the jury should not be given equal weight, with the findings of one trier of fact completely off-setting the other, when the judge considered only the evidence presented by one party and the jury considered the proof offered by all the parties to the suit. The evidence produced by plaintiff, being the only evidence considered by the trial court, did not include the testimony of defendant Curtis, of the owner of Visco’s Restaurant, of the manager of that restaurant, or that of a fellow employee who was working with Curtis at the time the above incident occurred. The trial judge thus did not consider the explanation which Curtis, and at least two other eye witnesses, gave of the incident. The jury did consider that evidence.

Under the peculiar circumstances presented here, we conclude that the rule applied in Aubert v. Charity Hospital of Louisiana, supra, as above set out, is not applicable here. We feel that the factual findings of the jury should be given great weight, and that we should not upset those findings unless we determine that they are clearly erroneous.

The evidence shows that a battery was committed on plaintiff by defendant Curtis about 3:30 p. m. on August 6, 1975, at Visco’s Restaurant, in Jefferson Parish. Curtis was working as an oyster shucker at the restaurant at that time. Mrs. Davis telephoned the restaurant to speak to her son, who also was an employee there, and Curtis answered the phone. Curtis did not summon plaintiff’s son to the telephone and Mrs. Davis became offended at what she considered to be vulgar and abusive language used by that defendant. She then went to the restaurant, where she complained to the manager about Curtis’ conduct, and while she was there an argument took place between her and Curtis. Shortly after that argument occurred, Mrs. Davis was struck or pushed by Curtis in such a way that she fell and sustained injuries. She now seeks to recover damages for those injuries.

Plaintiff contends that Curtis was acting in the course and scope of his employment when he injured her, and that his employer, Visco’s, and the latter’s insurer, are vicariously liable to her for those damages. She also contends that Visco’s was negligent in that its agents, servants and employees failed to take any action to restrain Curtis from committing the battery or to protect plaintiff from the injuries which she received.

Plaintiff’s version of the incident which occurred differs substantially from that of defendant. According to Mrs. Davis, Curtis used vulgar and abusive language toward her when she talked to him by telephone. She thereupon went to the restaurant and reported the matter to Mrs. Ryan, the day manager. She and Mrs. Ryan then entered the restaurant together, when Curtis resumed using foul and threatening language toward her. Mrs. Ryan suggested that Curtis remain at the oyster bar and that plaintiff go to the dining room, while Mrs. Ryan went to get the owner. After Mrs. Ryan left, and while plaintiff was in the dining area, plaintiff said that Curtis approached her from the back, hit her, knocked her down and kicked her. Rita Guidroz, an employee of Visco’s, generally corroborated plaintiff’s statements.

Defendant Curtis, on the other hand, testified that plaintiff initiated the use of vulgar language in their telephone conversation, that when Mrs. Davis later entered the restaurant with Mrs. Ryan, plaintiff insulted him with racial overtones, and that he and Mrs. Davis then began arguing and cursing each other. He stated that when plaintiff and Mrs. Ryan left the room in which the oyster bar was located, plaintiff-returned to that bar and resumed cursing and berating him. He and plaintiff then left the area about the same time, each going to a different part of the restaurant. Curtis stated that his purpose in leaving was to find the owner or Mrs. Ryan to get the matter “settled.” He said that shortly thereafter he suddenly and unexpectedly met plaintiff as he rounded a corner near the dining room, that plaintiff “pushed” him when they met, and that he “pushed her back.” As a result of that altercation plaintiff fell and sustained injuries. Curtis denied that he kicked or struck plaintiff, and he contends that he pushed her only to “get her off me, to free myself of her.” Some parts of Curtis’ version of the incident were supported by the testimony of Mrs. Ryan, the manager, and by Alfonzo Berry, another employee of the restaurant.

At the conclusion of the trial, interrogatories were propounded to the jury, one of which was:

“Was Harold Curtis guilty of an unjustified battery on the plaintiff, or did he use excessive force in defending any battery on himself?”

The jury’s reply to that interrogatory was “No.” In view of that response, and in accordance with instructions from the court, no other interrogatories were answered. A poll of the jury indicated that the vote was unanimous.

The jury obviously accepted the testimony of Curtis and the witnesses called by defendants, Visco’s and USF & G, and rejected the version of the incident given by Mrs. Davis and the witnesses offered by her.

Plaintiff suggests that “a tremendous amount of inflammatory information was brought out for the jury,” including some “insinuations and innuendos,” and the fact that medical insurance was or may have been available to plaintiff. With reference to the' last bit of evidence, the jury was instructed that the insurance should not be considered. We have examined the record carefully, and have failed to find any evidence unduly prejudicial to plaintiff which we think should have been excluded.

We have concluded that the record contains credible evidence which is sufficient to support the findings of the jury. We cannot say that the special verdict rendered by the jury is manifestly erroneous. Under those circumstances the verdict of the jury should not be disturbed, and the judgment appealed from will be affirmed.

For the reasons assigned, the judgment appealed from is affirmed. The costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.