author: LEAR, Judge. CHIASSON, J.,

text:
    Iona RYDER v. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, Pinecrest State School.
    No. 13992.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.

      F. Jean Pharis, Pharis & Pharis, Alexandria, for appellant.
    E. Michael Harrison, Staff Atty., Dept, of Health and Human Resources, Baton Rouge, for appellee.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

This appeal was taken by Iona Ryder from an adverse ruling of the State Civil Service Commission upholding her termination by the appointing authority from her previous state employment.

Prior to her termination, appellant had been a permanently classified state employee, having the civil service designation of Cottage Parent II, at the Pinecrest State School in Pineville, Louisiana. At the time of her termination, appellant had been employed at the Pinecrest for some thirteen years.

By letter dated March 22, 1979, over the signature of Coates Stuckey, Superintendent, appellant was notified that she was being terminated from her position as Cottage Parent II as of March 28, 1979. As grounds for her dismissal, the appointing authority assigned violation of its Blue Book Directive 38-1-5-72 and clause number three (3) of the “Rules Governing Conduct of Employees”, and in pertinent part the letter of dismissal reads as follows:

“You have been heard to call resident Hazel Dupas a ‘bitch’ and ‘Sit your black ass down.’ On January 26, 1979 on Cottage 214 at approximately 2:00 p. m., the 6-2 shift and 2-10 shift were discussing recent troubles on the cottage. The main topic of conversation was resident M. Es-topinal’s bruises. Resident Dorothy Lachney accused the evening shift of forcing her to tell Mr. Bordelon the bruises happened on the morning shift. You screamed at her saying, ‘You bitch, you are telling a goddamned lie.’ You grabbed Dorothy by the lapel of her jacket and used a lot of abusive language.
“By your own admission you have used the words ‘hell’ and ‘damn’ on the cottage. You have been seen throwing Frances Weaver onto the couch and holding her down, then calling employees to help hold her until she could be put in restraints. You have been heard cursing Frances Weaver and calling her a ‘goddamned little son-of-a-bitch’.”

A timely appeal was filed by appellant, through counsel, on April 20, 1979, wherein appellant denied the allegations of misconduct and alleged that her removal was discriminatory and without legal cause. By its opinion filed on October 5, 1979, the commission ruled that all of the allegations contained in the dismissal letter, except those relating to the January 26, 1979, incident, were defectively vague and, therefore, limited the merits of the appeal to the sole remaining allegation charging appellant with having screamed at resident Dorothy Lachney, “You bitch, you are telling a goddamned lie” and with having grabbed Lach-ney by the lapel of her jacket at Cottage 214 at approximately 2:00 p. m. on January 26, 1979. In that opinion, the commission also ruled that appellant had not alleged sufficient facts to support her conclusion of discrimination, and summarily dismissed that portion of her appeal.

A public hearing was held in Pineville, Louisiana, on October 16, 1979, before a referee appointed by the commission.

While appellant’s application for appeal to this court assigned numerous errors, because of our holding herein, we find it necessary to address assignments of error numbers three, four and eleven only and therefore decline to review those other errors assigned by appellant.

Article 10, Section 8(A) of the Louisiana Constitution of 1974 provides that no person who has gained permanent status in the classified state civil service shall be subjected to disciplinary action, such as appellant’s dismissal, except for cause expressed in writing. It further provides that the burden of proof on appeal is on the authority to fully support that the dismissal of the employee was for “cause”. Stiles v. Department of Public Safety, Drivers’ License Division, 861 So.2d 267 (La.App. 1st Cir., 1978). Thus, in reviewing the commission’s action, we must determine whether the facts are supported by sufficient and competent evidence and, second, whether the facts, as a matter of law, justify the action taken. Stiles, supra.

From the testimony received by the commission, it is undisputed that at approximately 2:00 p. m. on January 26, 1979, in Cottage 214 at the Pinecrest State School, appellant and a number of other employees were engaged in an informal discussion concerning bruises received by one of the residents. In discussing this situation, one of those present suggested that another resident, Dorothy Lachney, was responsible for part of the bruises. Frances Rushing, one of the employees present, then called Dorothy Lachney to the desk and asked her about this, to which Lachney replied that the evening shift forced her to say that the morning shift was responsible. At this point, the testimony of the witnesses differs substantially.

Frances Rushing, called by the authority, testified that, in response to Dorothy Lach-ney’s statements, appellant grabbed Dorothy Lachney’s collar and pulled it up under her chin and said to Dorothy Lachney, “You bitch, you’re a god damn liar.” She later testified that appellant did not shake the resident and that appellant’s touching of the resident was “a gesture of simply closing the collar of her [Dorothy Lachney’s] jacket. ...” The resident herself, however, testified that appellant grabbed her hard by the clothes and pushed her back, telling her to sit down.

Appellant, testifying in her own behalf, while admitting she touched the resident’s clothes, denied grabbing or pulling the resident’s clothes or shaking her. Appellant further testified that she told the resident not to lie and that she was tired of the resident’s going from shift to shift lying and creating trouble. Appellant specifically denied cursing at the resident.

Rose Gilmore, called by appellant, testified that she was present with appellant and the others at the time of this incident and further that she only heard appellant say to Dorothy Lachney, “Don’t lie.” She also testified that she did not observe Ms. Ryder place her hands on Dorothy Lachney and specifically did not see her grab the resident by the collar. She further testified that, while she was talking to another employee and not paying close attention to appellant’s conversation, she would have been near enough to have heard Ms. Ryder make other statements had she done so. She stated specifically that she heard no abusive language.

The testimony of the authority’s two witnesses contains a number of contradictions and inconsistencies, while appellant’s testimony appears to be substantially corroborated by a disinterested witness, Rose Gilmore. It should also be noted that, in discharging its burden of proof, the authority failed to call three other witnesses who were present at this incident. Because their testimony would logically be part of the authority’s case, and their failure to testify being unexplained, it must be presumed that their testimony would not have aided the authority’s case.

In reviewing the testimony received and considered by the commission, and its findings, we find that the appointing authority, in the previous public hearing on this matter, failed to carry its burden of proof in establishing the conduct upon which appellant’s termination was based. We conclude, therefore, that the commission’s decision is manifestly erroneous.

As pointed out above, disciplinary action against a classified employee must be based on legal cause. Legal cause for disciplinary action against a classified employee has been defined by the Louisiana Supreme Court as conduct which impairs the efficiency of the public service, and which bears a real and substantial relation to efficiency and orderly operation of the public service in which the employee is engaged. Leggett v. Northwestern State College, 242 La. 927, 140 So.2d 5 (1962).

Obviously, dismissal from permanent employment is the most extreme form of disciplinary action that can be taken against a classified state employee. Thus, cause justifying some lesser form of disciplinary action might not justify a dismissal. Repeated improper conduct after lesser disciplinary action has been taken, the totality of individual lesser offenses or even a single particularly aggravated incident have all been found to constitute legal cause for dismissal. Some examples of this are: insubordination and a stated refusal to comply with regulations, Matter of Geiger, 337 So.2d 549 (La.App. 2nd Cir., 1976); severe beating of fellow employees, Branighan v. Department of Police, 362 So.2d 1221 (La. App. 4th Cir., 1978), writs denied 365 So.2d 247 (La.1978); an employee slapping and cutting (with a pen knife) a “student” of L.T.I., Williams v. Department of Corrections, LTI-Baton Rouge, 316 So.2d 411 (La. App. 1st Cir., 1975), writs denied 327 So.2d 563 (La.1975).

Only the January 26 incident was considered by the commission. Even if we accept this incident as sufficiently proven, which we do not, the record indicates that appellant’s conduct on that date was not prolonged nor particularly aggravated. Appellant did not strike the resident, and it appears from the record that no serious or lasting damage resulted from this incident. When viewed within the context of the staff’s previous experience with the resident and appellant’s knowledge of the resident’s prior threats against her, appellant’s conduct, even if proven, is not so extreme as to justify dismissal.

While we agree with the commission’s finding that appellant’s position demands a high standard of conduct, we believe that, as applied in this case, the commission’s judgment of this “single incident” is manifestly incorrect. We, therefore, find that the conduct alleged by the authority, even if proven, is not sufficient legal cause for appellant’s termination.

Concerning appellant’s claim for attorney’s fees, Act 461 of the 1980 Regular Session provides for an award of attorney’s fees in appeals to the State Civil Service Commission. In enacting Act 461, the legislature did not elect to make it retroactive, nor did it specify an effective date. Therefore, Act 461 became effective on the sixtieth day after the final adjournment of the regular session of 1980, which occurred on July 14, 1980. This appeal was taken to and decided by the State Civil Service Commission prior to the effective date of Act 461. Additionally, the appeal of the commission’s decision was taken by appellant on July 23, 1980, and the record lodged in this court on September 8,1980. Therefore, the act not being retroactive, appellant is not entitled to an award of attorney’s fees in connection with her appeal to the State Civil Service Commission.

For the above reasons, the decision of the State Civil Service Commission is reversed, plaintiff is ordered reinstated with back pay from the date of discharge, March 28,1979, and with retention of all ancillary benefits and status. Appellee is to pay costs of this appeal in the amount of $25.00.

REVERSED.

CHIASSON, J.,

concurs in holding that authority failed to carry its burden of proof and as to attorney’s fees.

      . Rule 3 states: “3. Never curse, taunt, or otherwise verbally abuse any resident.” Exhibit DHHR-l, a copy of rules, was introduced; it bears the date of July 13, 1966 and the signature of Ms. Ryder, acknowledging that she had read them and had received a copy thereof. At the top of the page of rules is the caveat, in upper case letters: “THE FOLLOWING RULES WILL GOVERN THE CONDUCT OF ALL EMPLOYEES OF PINECREST STATE SCHOOL. FAILURE TO COMPLY WITH THESE RULES MAY RESULT IN DISMISSAL.”


source: Caselaw Access Project

author: COVINGTON, Judge.

license: Public Domain

text:
    Gail Horne RAY v. AMERI-CARE HOSPITAL et al.
    No. 14010.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.
    Writ Denied Sept. 11, 1981.

      James A. Gray, II, New Orleans, for plaintiff-appellant Gail Horne Ray.
    Roger Fritchie, Hansen Scobee, Baton Rouge, for defendant-appellee Dr. Frank A. Silva.
    Ronald A. Seale, A. G. Seale, Baton Rouge, for defendants-appellees Carl G. Murphy and Gulf Ins. Co.
    David W. Robinson, Baton Rouge, for defendant The Merit Corp. of Tenn.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

This suit seeks to recover damages for the wrongful death of George E. Ray who died on January 19,1976, in the Ameri-Care Hospital after being admitted to that facility by Dr. F. A. Silva for psychiatric treatment following a diagnosis of schizophrenia, paranoid type. The plaintiff is Gail Horne Ray, the widow of the deceased. The defendants are Ameri-Care Hospital; its insurer, Gulf Insurance Company; its administrator, Carl G. Murphy; and Dr. F. A. Silva, a psychiatrist. After trial by jury, verdict was returned by the jury in favor of all defendants, with the trial court signing a judgment in accordance therewith.

In January of 1976, Mr. Ray, an employee of Exxon, began to act in a strange manner which caused his wife to realize that he needed medical attention. Through a friend, Thomas Morris, Ray was persuaded to consult with the company physician, Dr. Jones. After examination, Dr. Jones felt that Ray might have a chemical imbalance and should be admitted to the psychiatric ward at Ameri-Care, so he was sent there. The hospital was located on the fourth floor of the building now known as the Baton Rouge General Hospital annex on North Boulevard in Baton Rouge. It was a private psychiatric hospital which was planned primarily as a short-term facility and which received all psychiatric admissions in the Baton Rouge area at that time, except for those sent to the unit at Earl K. Long Hospital. The hospital, which was not housed in a general hospital, had facilities to handle 50 patients; but at the time of Ray’s hospitalization, it was not filled to capacity, having about 23 patients.

Mr. Ray was admitted on Friday, January 16, 1976, and his history taken. He was first seen by Dr. F. A. Silva that evening. The doctor found him “delusional,” and diagnosed him as “paranoid schizophrenic.” “Routine orders” were given by Dr. Silva.

Dr. Silva testified at the trial that Mr. Ray had been indirectly referred to him by Dr. Jones, the doctor for Ray’s employer, Exxon. When first Dr. Silva saw Ray, he was “anxious, confused, disorganized and delusional.” The patient’s history reflected that Ray had a delusion that he only needed “energy” to survive, so he had not taken any nourishment for three days. He requested a medical certificate to prove that he was not dead, presumably to back up his theory of survival-on-energy-alone.

“Routine orders” meant that the doctor did not consider that constant visual contact or mechanical restraint was needed, but that observation at frequent intervals of 30 minutes should be made, and that other normal routine care and treatment should be administered to the patient.

The patient seemed to be responding as could be expected, until the doctor received a phone call on Saturday that he was needed at the hospital due to Ray’s reaction to an attempt by a lab technician to draw blood for tests. Mr. Ray, who was a large man, had become frightened and agitated at the prospect of having blood taken and was strongly resisting any such efforts. Upon his arrival at the hospital, Dr. Silva found that Ray was hallucinating. He appeared to hear voices. The doctor prescribed Haldol, a medication used for this type of condition. Dr. Silva then issued more orders, limiting visitors to the immediate family. The doctor did not consider visual contact (close supervision at ten minute intervals) was called for; and thought that if Mr. Ray were placed in a small cell (one used for close supervision), it would heighten his paranoia and have done him more harm than good. He also considered that strapping Ray to his bed or using other forms of mechanical restraint would have had seriously detrimental effects on the patient. Despite his reaction to the taking of his blood, Ray seemed on the whole to be calmer and to be improving. The patient appeared to have had a restful night; he was dressing himself appropriately, taking short walks out of his room and addressing persons he came in contact with in a pleasant manner. Dr. Silva felt that Ray’s condition was such that in due course he could have returned to a productive life, but would probably have needed to remain on medication.

In the early morning hours of Monday, January 19, 1976, Mr. Ray was found drowned in the bathtub, presumably following an attempt to conduct an experiment as a result of a strange delusion that he was able to breathe under water. There was no indication that he had committed suicide.

In time, a suit for his wrongful death was filed by Mrs. Ray. The plaintiff requested that her suit be tried by jury; the trial lasted four days beginning January 21, 1980, with the jury’s verdict and the judgment in favor of the defendants. The plaintiff has appealed. We affirm.

Dr. Henry R. Olivier, a psychiatrist and chief of staff at the hospital, testified that he would not have felt any undue concern about Ray killing himself. He saw no need for mechanical restraints or visual contact. Dr. Olivier indicated that he would not have anticipated that Ray would try to breathe under water.

Dr. Robert L. Newman, Jr., a psychiatrist at Touro in New Orleans, indicated that his treatment of a patient in Ray’s condition would have been along lines similar to those used by Dr. Silva.

Marie Landry, Assistant Director of Nursing at the hospital, testified from the records that there was no indication that Mr. Ray was hostile or combative. He was cooperative. There was no need of visual contact or mechanical restraint. She stated that mechanical restraints on a paranoid person are always a last resort.

From the hospital records, Mrs. Landry indicated that as an expert in her field, she would not have anticipated that a man in Ray’s condition would attempt to put his head under water and try to breathe.

Carolyn Commenia, a nurse on duty at the time, stated that the patients were checked or observed at 30-minute intervals. Ray was not hostile, and gave no indication that he would try to hurt himself or others, or attempt to breathe under water, or try any other dangerous experiment or activity.

Thomas Morris, a close friend of the deceased, testified that Mr. Ray agreed to go to the psychiatrist only because he wanted to prove to everyone that he was sane, not because he thought anything was wrong with him. Morris described some of the strange behavior of Ray which had caused his wife and friends to think he needed medical help. He did not consider there was any risk of Ray trying to breathe under water. He did no't anticipate any danger to Ray.

Mrs. Ray indicated that the possibility of Ray’s attempting to breathe under water had not previously come up. She gave the information that Ray’s employer’s doctor, Dr. Jones, after examination, felt that Ray might have a chemical imbalance and ought to be admitted to the psychiatric ward at Ameri-Care. Mrs. Ray was informed of this disposition over the phone. Mrs. Ray briefly visited him and she also talked with him over the phone.

They knew he was acting strangely and they just wanted to see what his problem was. No one was really concerned about his problem being of a serious nature at that time.

On this appeal, the plaintiff takes the position that the trial jury erred in failing to apply the doctrine of res ipsa loquitur to the facts of the instant case, and in finding that the defendants had carried the burden of proving that the death of the deceased did not result from negligence on their part. As a corollary, the appellant contends that the violation of a safety regulation by the hospital constituted negligence; that the hospital staff failed to provide proper supervision for the deceased; and that the hospital’s agents were negligent in their actions when they found the patient face down in the tub of water. The appellant also urges that Dr. Silva was negligent in his evaluation of the deceased and in his failure to give proper orders in regard to the safety of his patient.

The appellant further argues that the trial judge erred in failing to properly charge the jury on the standard of care by which the duty of the hospital and doctor toward the patient should have been measured and the type of evidence that could be considered in determining the negligence of the defendants.

The appellant first argues that the jury erred in failing to conclude that the doctrine of res ipsa loquitur applied and to properly apply the doctrine. The judge charged the jury as follows:

“In the ordinary case, the mere fact that the plaintiff may have suffered harm does not furnish evidence that it was caused by anyone’s negligence, and the plaintiff must introduce other evidence of some negligence on the part of the defendant. In a few exceptional cases, the circumstances involved in or connected with an accident are of such an unusual character as to justify, in the absence of other evidence bearing on the subject, the inference that the accident was due to negligence of the person having control of the thing which caused the injury. In determining whether the hospital is at fault, you may infer that because all of the circumstances surrounding the accident are of such a character that, unless an explanation can be given, the only fair and reasonable conclusion is that the accident was due to some omission of the defendant’s duty.
“In order to infer that the accident was due to the negligence of the hospital, the plaintiff must show:
“(1) A superior knowledge on the part of the hospital as to the cause of the accident;
“(2) The absence [or] unavailability of direct evidence of negligence;
“(3) The existence of a sufficient duty on the part of the hospital to use due care; and
“(4) Proof the accident or injury (in this case death) and the hospital’s relation thereto.
“Therefore, if you determine that the thing which caused the death of Mr. Ray to be under the exclusive management or control of the hospital, and his death would not have occurred in the ordinary course of events if the one having such management and control used proper care, then it may be presumed that the death arose from the hospital’s want of care.
“This is simply another formulation of the burden of a plaintiff in a tort action to prove that, more probable than not, the death was caused by the negligence of the hospital. If you believe from the fact of the accident itself and from the other evidence offered by the plaintiff that the hospital’s negligence is the most plausible explanation for the death of Mr. Ray, you may return a verdict for the plaintiff. If, on the other hand, you are not convinced by the plaintiff’s evidence that it was the hospital’s negligence rather than some other cause which is the most plausible explanation, then you must return a verdict for the hospital.”

The doctrine of res ipsa loquitur is an evidentiary principle, the applicability of which may only be determined at the conclusion of the trial. Garrison v. Hotel Dieu, 319 So.2d 557 (La.App. 4 Cir. 1975), writ denied, 323 So.2d 129 (La.1975).

In the case of McCann v. Baton Rouge General Hospital, 276 So.2d 259 (La. 1973), our Supreme Court applied the doctrine of res ipsa loquitur in a medical malpractice case. In the course of its opinion, the Court pointed out that res ipsa loquitur is a rule of circumstantial evidence. Where there is no direct evidence to show the cause of injury, and the circumstantial evidence suggests the negligence of the defendant as the most plausible explanation of the injury (or death) the doctrine applies.

In McCann, supra at 261, the Court remarked:

“When, as here, the injury occurred within the confines of the special service rooms at the hospital, the failure to allege the specific acts of the defendant producing the injury cannot vitiate the cause of action. The surrounding circumstances are peculiarly within the knowledge of the defendants or their employees and unavailable to plaintiff.”

The doctrine of res ipsa loquitur is properly applied when the accident is of a kind that does not ordinarily occur in the absence of negligence; the injury was caused by an agency or instrumentality within the control of the defendant; and evidence as to the cause of the accident is more readily available to the defendant. See Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621 (1972).

Res ipsa loquitur means only that the fact of the occurrence warrants an inference of negligence, not that it compels such an inference; that the doctrine is grounded on the principle that such instances do not commonly occur in the absence of negligence; and, that the lack of direct evidence indicating the defendant’s negligence as the cause of the injury furnishes the occasion and necessity for invoking the rule.

In Boudreaux v. American Insurance Company, supra, the Court in describing the factual circumstances in which the rule of res ipsa loquitur should be applied stated it was when the inference of defendant’s negligence was the “most plausible explanation” or the “most probable cause” of the injury. If the evidence inferentially suggests the defendant’s negligence as the more plausible explanation, then the trier of fact must be satisfied that the party against whom the inference of negligence arises has satisfactorily brought forward evidence that would exculpate him from liability.

Once it is determined that the doctrine of res ipsa loquitur is applicable, the burden of proof is shifted to the defendant to show an absence of negligence. Holliday v. Peden, 359 So.2d 640 (La.App. 1 Cir. 1978).

The defendants have attempted to sustain their burden by offering proof that in the case of the specialist he has measured up to the standard of care as announced by our Supreme Court in Ardoin v. Hartford Accident & Indemnity Company, 360 So.2d 1331 (La.1978), and that in the case of the hospital it has measured up to the jurisprudential standard of care set out in Bryant v. St. Paul Fire & Marine Insurance Co., 365 So.2d 537 (La.App. 3 Cir. 1978), writ denied, 367 So.2d 1184 (La.1979).

The appellant relies strongly upon Boudreaux v. American Insurance Company, supra, in support of her contentions. Bou-dreaux does not necessarily dictate an ultimate conclusion of negligence. It is clearly within the province of the trier of fact (the jury here) to apply the doctrine, and conclude that the defendant has discharged its burden of proof, and has thus exculpated itself from liability. The issue thus raised in the case at bar is whether the jury had sufficient evidence before it to conclude that the defendants were not negligent even if res ipsa loquitur were applied in accordance with the instructions of the trial court.

An examination of the evidence indicates that the jury was justified in concluding that the hospital and the doctor exercised due care with respect to Mr. Ray, and that his death was not the result of negligence on the part of any defendant.

The jury heard testimony, which it chose to believe, that a history was taken from Mr. Ray himself upon admission and that the Social Services department of the hospital attempted to contact Mrs. Ray until 8:30 p. m. on that Saturday evening in an attempt to obtain a further history in the case.

Appellant argued to the jury that Thomas Morris, the friend who was with Mr. Ray on his admission to the hospital, knew of Ray’s delusion that he could breathe under water, and this information was not obtained from Mr. Morris by the hospital staff. However, the jury also heard Mr. Morris testify that he spoke with the nurse on duty but that he didn’t go into Ray’s theories or delusions. More importantly, Mr. Morris testified:

“Q. Now, Mr. Morris, in all fairness to both sides, and I know that you want to be fair, when you took George Ray to that hospital you were not afraid that he was going to go up there and try to breathe under water, now, were you Mr. Morris? That was not your major concern was it?
A. That was not my major concern at that time.
******
Q. All right. So, when that man went to the hospital it was not a concern to you that he was going to go up there and try to breathe under water? Is that correct?
A. That’s correct.
******
Q. All right. And not only, Mr. Morris, did you not think that he would try to breathe under water, is it not also a fact that you didn’t take any of these theories that he had too seriously on that day or during that time period?
A. That’s correct. I didn’t take—
******
Q. I understand. The only thing I’m trying to ask you, and I may not be asking my question good, is that if you thought that the man was going to do that at the hospital, when you were up there you would have told somebody, wouldn't you? You wouldn’t have gone off and kept it to yourself? What I’m saying, Mr. Morris, is that I know you are a good friend of the man—
A. Well, look—
Q. Let me finish my question. You wouldn’t say, Well, by George, they didn’t ask me so I’m not going to tell them. I sure hope he don’t do it. I mean, you wouldn’t have approached it that way, would you?
A. I don’t think I would have.”

Mrs. Ray testified that she was not aware of any previous experiment involving breathing under water and was not concerned that Mr. Ray might try to injure himself.

Doctors Newman and Olivier testified that if they had been aware of a previous delusion concerning one’s ability to breathe under water that they would not necessarily have altered the treatment plan, but would be more inclined to look on such thoughts as a litany of delusions.

In further explaining the problem of treating delusional patients, Dr. Silva testified:

“Q. Okay. You indicated that if you knew he had a fantasy about being able to fly you would have taken precautions about him going out of the window, for example?
A. Yes.
Q. Okay.
A. But, on the other hand, there is no way that we can take precautions for every possible delusion that a person might have because then we would probably have to keep the person asleep or something. There is no way you can take precautions for every possible delusion that a person might have. You know, some person might feel like they can eat something and, you know, those delusions vary. A person like Mr. Ray could have had a delusion that he could eat a mattress or that he could — the delusions do not remain static of the same type, but they vary, you know, today it may be that you can fly, tomorrow you can have a ray gun or something else. It is not something that you can say by doing this I am going to prevent everything else from happening.”

Appellant argues that defendants failed to provide an explanation as plausible as defendants’ negligence as the proximate cause of Mr. Ray’s death. Dr. Silva, Dr. Newman and Mrs. Landry, nursing supervisor and qualified as an expert in the field of psychiatric nursing, testified that there was no reasonable way to foresee that Mr. Ray would attempt to breathe under water, or that his treatment plan should have been changed in anticipation of such an act. His death was unforeseeable and unpredictable.

It is also the appellant’s position that the jury erred in concluding that the hospital was not negligent as a consequence of the actions of the hospital staff on duty when Mr. Ray’s body was found in the bathtub. Appellant claims that Mr. Ray should have been removed from the tub more quickly and he could have been revived with proper emergency resuscitation techniques (CPR). The record does not support this contention.

The facts as heard by the jury were un-controverted. The chart reflects that Mr. Ray was observed at 12:30 a. m. when the late shift came on duty. The male attendant, Lloyd Jackson, saw him several times in the early part of the evening, and Mr. Ray appeared asleep in his bed. Carolyn Commenia, a licensed practical nurse, testified that one of the nurses was making rounds in the early morning hours on Monday (this was about 2:00 or 2:30 a. m.) and discovered that George Ray was not in his bed. Commenia summoned Mrs. Smith, the registered nurse on duty, and together they returned to Mr. Ray’s room where they discovered him face down in the bathtub which was full of water. It was apparent to the registered nurse and to the licensed practical nurse that Mr. Ray was dead, based upon the absence of pulse, heartbeat, respiration and no visible signs of life. Lloyd Jackson likewise testified that Mr. Ray’s pupils were fixed and dilated and his body temperature lowered. Based upon these observations and the best judgment of the staff on the scene, it was determined that life-saving measures (CPR) would be futile. As an expert, Dr. Newman testified that such efforts to revive Mr. Ray at that point would have been futile.

The appellant further assigns error that the jury failed to conclude that the hospital violated rules adopted by the Louisiana Hospital Licensing Council and promulgated by the State Hospital Board pursuant to LSA-R.S. 40:2109. These regulations are known as the “Rules, Regulations and Minimum Standards Governing Hospitals and The Hospital Licensing Law.” The pertinent regulations pointed out by the appellant are Section 26 of Chapter V, “Patient Care”, and Section 70 of Chapter VI, “Specialized Patient Services” which provide:

“§ 26. The hospital shall establish safety policies and procedures for the care of patients who because of their condition are not responsible for their acts.”
“§ 70. The layout, design of details, equipment and furnishings of a psychiatric unit shall be such that patients may be under close observation and will not be afforded opportunities for hiding, escape or injury to self or others.”

The trial judge properly instructed the jury with regard to the regulations, as follows:

“According to R.S. 40:2109(A) of the Louisiana statutes, the rules and regulations! known as the ‘Rules, Regulations and Minimum Standards Governing Hospitals and the Hospital Licensing Law’, shall have the effect of law. These rules and regulations govern the operation and maintenance of hospitals. If you find that the defendants, Ameri-Care Hospital and Carl M. Murphy, did not comply with these regulations, the mere noncompliance with these regulations does not impose fault on these defendants under the circumstances. However, if you find that the violation of these regulations was the cause of Mr. Ray’s death, then it is possible for you to find the defendants at fault.”

No objection was made to the trial court’s charge concerning these regulations. In any event, the charge in the context of this case was correct. Further, the record reflects that the hospital was licensed by the Louisiana Department of Hospitals, operating under the statute above; and the facility was duly accredited by the Joint Commission on Accreditation of Hospitals. Compliance with the statute was a prerequisite to licensing by the state agency.

There was no evidence offered to show that the hospital failed to establish safety policies and procedures for the care of patients unable to be responsible for their own acts; or that the layout, design, equipment, furnishings and construction of the psychiatric facilities did not meet the standards of the regulations for close observation and the prevention of injury, hiding or escape. In fact, the evidence reveals compliance with the regulations. The hospital had established policies for the care of patients who were unable to take care of themselves. The evidence further established that the policies and standards employed by the hospital were similar to other psychiatric units.

Dr. Robert Newman, chief of psychiatric services at Touro Infirmary, testified:

“Q. Okay. Let’s talk about that unit as far as the design and layout of that hospital. Does it offend you in any way as against good psychiatric practice or the way to operate a psychiatric facility that patients not otherwise on visual contact would have access to a bathtub?
A. No.
Q. Or a lavatory?
A. No. We are dealing with humans who happen to be sick, and humans who use bathrooms and humans like to take baths, and humans like to present themselves neatly at times and sometimes they like to present themselves otherwise, but they should have the prerogative and the resources to do so if they wish.”

We find that the evidence supports the conclusion of the jury that the hospital did not violate the statute or the regulations; or, if there were a violation, that such violation did not cause or contribute to the cause of Ray’s death.

Another issue raised by appellant is whether the trial judge properly instructed the jury on the legal principles of the responsibilities of the hospital and the doctor. Appellant claims that the jury was not instructed that the hospital and doctor should be judged by what they should have known as well as what they knew. The plaintiff also contends that the court’s charge concerning the effect or need for expert testimony was improper and objectionable.

On the standard of care applicable to Dr. Silva, the psychiatrist, the trial judge instructed:

“Dr. Silva is a specialist in the field of psychiatry. In a malpractice action based on the negligence of a physician, the plaintiff has the burden of proving by the preponderance of the evidence:
(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians practicing in the same medical specialty as that in which the defendant physician practices;
(2) That 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) That 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 have otherwise occurred.
“One who holds himself out as a specialist, and who undertakes service in a special branch of medical or surgical science, owes to his patient the duty of possessing that degree of learning and skill ordinarily possessed by specialists of good standing practicing in the same special field of medicine, under similar circumstances and to use reasonable care and diligence, along with his best judgment, in the application of his skill.
“One of the duties of the physician is to make a diagnosis of the ailments of his patient, and if a physician fails to use the degree of skill ordinarily employed under similar circumstances by the members of his profession in the same medical specialty, in making that diagnosis, then you may conclude that he was negligent in his conduct. But a physician is not obligated, in making a diagnosis, to be correct all the time. It is not malpractice to make a mistake in diagnosis. Making a diagnosis is an act of professional judgment and an incorrect diagnosis is not necessarily an act of negligence. You must consider the physician’s conduct in making the diagnosis in comparison to the degree of skill in diagnosis ordinarily employed by other members of the profession in the same medical specialty.
“A physician is not required to exercise the highest degree of skill and care possible. He is not an insurer or guarantor of results, in the absence of an express agreement to that effect. When he undertakes the treatment of a case, he undertakes to use that skill and care ordinarily exercised by physicians in the same field of medical specialty as that in which he practices.
“Further, a physician, upon undertaking a treatment, is under the duty, in the absence of an agreement limiting the service, to continue his treatment after the first treatments, as long as the case requires his attention.
“The standard of care, skill and judgment applicable to a physician in a certain school of medicine are not matters ordinarily within the common knowledge or experience of jurors or lay persons. These standards are within the special knowledge of experts in the field of medicine and can ordinarily only be established by their testimony. Therefore, the care, skill and judgment usually possessed and exercised by physicians in the same school of medicine, under similar circumstances, is to be determined by the testimony of an expert medical witness.”

This charge is consistent with the rule to be followed with regard to the defendant psychiatrist, Dr. Silva, in that a medical specialist is required to exercise the degree of care and possess the degree of knowledge and skill ordinarily exercised and possessed by physicians in good standing within his medical specialty under similar circumstances, and to use reasonable care and diligence, along with his best judgment, in the application of his skill to the case. As a psychiatrist, Dr. Silva was subject to the higher standard of care ordinarily practiced by physicians within that particular specialty rather than the standard of care exercised by generalist physicians practicing in the same community. The locality factor is no longer involved in determining the standard of care required of specialists in malpractice suits. Ardoin v. Hartford Accident & Indemnity Company, supra; Bryant v. St. Paul Fire and Marine Insurance Company, 382 So.2d 234 (La.App. 3 Cir. 1980).

We have examined the evidence and find that the record shows that Dr. Silva was not negligent. The evidence does not indicate any deviation from the Ardoin standard of care in his care and treatment of George E. Ray.

The court then charged the jury on the standard of care by which to judge the hospital’s conduct, as follows:

“A hospital is bound to exercise the requisite amount of care toward a patient that the patient’s condition may require. It is the hospital’s duty to protect a patient from dangers that may result from the patient’s physical and mental incapacities, as well as from external circumstances peculiarly within the hospital’s control. A determination of whether a hospital has breached the duty of care it owes to a particular patient depends upon the circumstances and facts of that case.
“A hospital is not an insurer of a patient’s safety, and the rules as to the care required are limited by the rule that no one is required to guard against or take measures to avert that which a reasonable person under the circumstances would not anticipate as likely to happen. The hospital is obligated to use reasonable care in the light of the requirements of the patient’s known conditions.
“The hospital, like all other employers in our society, may be held liable for the acts of negligence committed by its employees during the exercise of the functions for which they are employed. A patient is admitted to a hospital under an obligation, owed to him by the hospital and its employees, to provide such reasonable care and attention for his safety as his mental and physical condition, as known to the defendant or its nurses or other employees, may require.”

The court then charged:

“In summary, in order to find the defendants’ conduct substandard, you must find that as an ordinarily prudent person under all the circumstances surrounding his conduct, the defendants should have reasonably foreseen that as a result of their conduct, some such injury as the plaintiff suffered would occur, and you must find also that they failed to exercise reasonable care to avoid the injury. You may find it helpful to phrase your inquiry this way: ‘How would an ordinarily prudent person have acted or what precautions would he have taken if faced with similar conditions or circumstances.’ ”

The rules regarding the duty of a hospital toward its patients are that a hospital is bound to exercise the necessary care toward a patient that his condition requires; the hospital’s duty extends to protecting a patient from dangers which may result from the patient’s physical and mental incapacities and from external circumstances peculiarly within the hospital’s control. Whether a hospital has breached its duty of care owed to a particular patient depends upon the facts and circumstances of the particular case. Richard v. Southwest Louisiana Hospital Association, 383 So.2d 83 (La.App. 3 Cir. 1980), writ denied, 385 So.2d 274 (La.1980); Williams v. Sisters of the Incarnate Word of Galveston, Texas, 341 So.2d 1299 (La.App. 3 Cir. 1977). The standard of care required of a hospital does not require a “community standard” in order to determine if a hospital is negligent under a particular set of circumstances. Richard v. Southwest Louisiana Hospital Association, supra; Bryant v. St. Paul Fire & Marine Insurance Co., supra.

However, the hospital’s duty has been traditionally limited: a hospital is not an insurer of a patient’s safety, and the rules of care are limited by the rule that no one is required to guard against or take measures to avert that which a reasonable person under the circumstances would not anticipate as likely to happen. Goodeaux v. Martin Hospital, Inc., 333 So.2d 717 (La. App. 2 Cir. 1976), writ denied, 338 So.2d 295 (La.1976); Guidry v. State, Department of Hospitals, 317 So.2d 222 (La.App. 3 Cir. 1975), writ denied, 320 So.2d 904 (La.1975).

Under the circumstances of the instant case, there was no duty imposed on the hospital to watch or supervise the deceased more closely than was done. Our conclusion is that there was no breach of duty by the hospital in not requiring someone to look out for the safety of Ray on a continuous basis. We are convinced from the evidence that the hospital exercised the care reasonably to be expected in view of this particular patient’s condition. Williams v. Sisters of the Incarnate Word of Galveston, Texas, supra; Charouleau v. Charity Hospital of Louisiana at New Orleans, 319 So.2d 464 (La.App. 4 Cir. 1975), writ denied, 323 So.2d 137 (La.1975); Clarke v. Gowen Sanatorium, Inc., 160 So.2d 426 (La.App. 2 Cir. 1964).

Plaintiff’s counsel did not object to the general charge in the trial court, so the appellant is precluded from that assignment of error in this Court under LSA-C.C.P. art. 1793; Alexander v. Alton Ochsner Medical Foundation, 276 So.2d 794 (La.App. 4 Cir. 1973), writ denied, 279 So.2d 695 (La.1973).

The charge now objected to was given by the judge as a part of his general comments on witnesses and expert witnesses and was in no way prejudicial to the plaintiff’s case. When this charge is viewed in light of the entire charge given to the jury, it is plain that the trial judge did not suggest that only expert evidence could establish the standard of care by which to measure the defendants’ conduct. In fact, after an extensive explanation of the meaning of negligence, the court summarized by indicating to the jury that they might find it helpful to ask how an ordinarily prudent person would have acted or what precautions he would have taken if faced with similar circumstances.

The charge given by the judge to which counsel for plaintiff now objects concerning expert testimony is set out above. In connection with this charge on expert evidence, the appellant complains that the failure to give the following requested charge on this question constituted error:

“If you find that George Ray, because of his mental condition, needed special care to protect him, and if you find that the hospital had a duty to provide that care, then you need not rely on expert testimony to determine if that duty was breached. That decision is one that can be made by lay persons such as yourselves by applying an ordinary negligence standard.”

The requested charge is not a proper statement of the law, and the giving of the charge was properly refused by the trial judge. Haynes v. Baton Rouge General Hospital, 298 So.2d 149 (La.App. 1 Cir. 1974), writ denied, 302 So.2d 33 (La.1974).

Appellant claims that the jury was not instructed that the hospital and doctor should be judged by what they should have known as well as what they knew; however, Judge Doherty stated to the jury, as quoted supra:

“In summary, in order to find the defendants’ conduct substandard, you must find that as an ordinarily prudent person under all the circumstances surrounding his conduct, the defendants should have reasonably foreseen that as a result of their conduct, some such injury as the plaintiff suffered would occur, and you must find also that they failed to exercise reasonable care to avoid the injury.”

It is argued that the charge concerning the effect or need for expert testimony was improper, but Judge Doherty stated:

“You should consider each expert opinion received into evidence in this case, and give it such weight as you deem that it deserves. If you should decide that the opinion of an expert witness is not based upon sufficient education and experience, or if you should conclude that the reasons given in support of the opinion are not sound, or if you feel it is outweighed by other evidence, you may disregard the opinion of that expert entirely.”
There is no merit in these contentions.

Further, the requested special charge concerning constructive knowledge of the defendants was adequately covered by the general charge to the jury, and the failure to include the specific verbiage of the special charge requested by the plaintiff did not constitute reversible error. Haynes v. Baton Rouge General Hospital, supra.

We have reviewed the instructions of the trial court in light of the allegations, the issues and evidence presented in the trial of the instant case. We find that these instructions fairly and reasonably point up the issues presented by the pleadings and the evidence and provide correct principles of law for the jury’s application to the facts. We hold that the instructions given herein were proper; they did not deprive the plaintiff of a meaningful jury trial and they enabled the jury to reach a verdict which is fully supported by the evidence and the law. Babin v. St. Paul Fire and Marine Insurance Company, 385 So.2d 849 (La.App. 1 Cir. 1980), writ denied, 386 So.2d 358 (La.1980); Hanks v. Drs. Ranson, Swan & Burch, Ltd., 359 So.2d 1089 (La.App. 3 Cir. 1978), writ denied, 360 So.2d 1178 (La.1978).

A jury verdict should be maintained unless the record reflects that its conclusions of fact are not supported by the evidence, and/or its application of the law is clearly erroneous. Babin v. St. Paul Fire and Marine Insurance Company, supra; Perrin v. St. Paul Fire and Marine Insurance Company, 340 So.2d 421 (La.App. 4 Cir. 1976).

In the absence of manifest error, the appellate court is not to disturb the finding of the jury which has evidence before it furnishing a reasonable factual basis for its verdict, based upon its reasonable evaluation of credibility. Harris v. State Through Huey P. Long Memorial Hospital, 378 So.2d 383 (La.1979); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

In addition, we have carefully reviewed and evaluated the record, and we find no negligence on the part of the defendants. They exercised the required amount of care toward George E. Ray that his particular condition demanded. The factual findings of the jury in determining the issues of liability of the defendants in the case at bar are supported by credible evidence in the record. We have thoroughly reviewed the evidence and under the particular facts and circumstances of this case, we find no manifest error in the jury’s findings.

For the assigned reasons, we affirm the judgment appealed at appellant’s costs.

AFFIRMED.

      . Prior to trial, The Merit Corporation of Tennessee, which was the lessor of the building in which the medical facility was located, was dismissed as a party defendant.


author: CHIASSON, Judge.

text:
    Ebb K. HARRISON v. MORGAN PORTABLE BUILDING CORPORATION.
    No. 14012.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.

      Sam J. D’Amico, Baton Rouge, for plaintiff-appellant Ebb K. Harrison.
    Robert J. Vandaworker, Baton Rouge, for defendant-appellee Morgan Portable Building Corp.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

Plaintiff-appellant, Ebb K. Harrison, appeals the decision of the trial court holding that plaintiff had not suffered an injury within the meaning of the Louisiana Workmen’s Compensation Statute and denying his demands for workmen’s compensation benefits.

Harrison contends that on April 15, 1978, while in the course and scope of his employment with the defendant, Morgan Portable Building Corporation, he experienced pains in his chest and a shortness of breath while lifting a portion of a small portable building. Plaintiff discovered on May 25, 1978, following a treadmill stress test, that he had a coronary artery disease. Dr. James Hand conducted this test and referred him to Dr. James Calvin, a cardiologist.

Dr. Calvin performed a heart catheterization (coronary arteriogram) on June 2,1978, which revealed a severe occlusive coronary artery disease. Two of the arteries to the heart were completely blocked while the third artery was 80% narrowed. Dr. David Davis, a thoracic surgeon, performed a “coronary artery bypass times three” on the plaintiff on June 6, 1978.

After returning to work to perform light duty in July of 1978, plaintiff continued his employment until he was terminated in May of 1979. The termination was prompted by allegations that the plaintiff, along with another of the defendant’s salesmen, were starting a competing business. On May 25, 1979, after plaintiff was cleared of the allegations, defendant-corporation offered plaintiff his job back. Plaintiff refused and filed suit that day seeking to be declared totally and permanently disabled and entitled to workmen’s compensation benefits.

After a trial of the matter, the trial court denied plaintiff’s claim and awarded judgment in favor of the defendant. The court made the following determination:

“ * * * that the plaintiff had long-standing coronary disease prior to the incident which occurred on April 15,1978, when he was lifting parts of a portable building. The medical evidence is conclusive that no injury was suffered by him at that time as no doctor found he had sustained any heart damage. As all of the doctors have testified, whatever pain Harrison experienced on the date of the incident was merely a manifestation of his overall condition.”

After concluding that no injury took place, the trial court went further and found no causal relation of this incident and the resulting disability.

“Although it may be arguable that Harrison actually is disabled from performing his customary and usual duties of his former employment as a salesman, it is manifestly clear from the medical evidence that there was no causal connection between the on-the-job incident and his present condition. No injury was sustained on the job. Harrison’s disability, if at all, is directly and solely related to his heart disease. * * *”

Plaintiff’s contentions on appeal are three-fold: (1) The trial court erred in failing to find plaintiff’s angina attack on April 15, 1978 was an accident under the Louisiana Workmen’s Compensation Statute; (2) The trial court erred in failing to find that plaintiff’s accident was one which arose out of and occurred in the course of his employment; and (3) The trial court erred in failing to find a causal connection between plaintiff’s accident in April of 1978 and the resulting disability.

Under La.R.S. 23:1031, an employee is entitled to recover benefits from his employer when he “.. . receives personal injury by accident arising out of and in the course of his employment .. .. ” Parks v. Insurance Co. of North America, 340 So.2d 276 (La.1976). The compensation statute defines “accident” as “an unexpected or unforeseen event happening suddenly or violently, with or without human fault and producing at the time objective symptoms of an injury.” La.R.S. 23:1021(1); Guidry v. Serigny, 378 So.2d 938 (La.1979). It further defines “injury” as injuries caused “by violence to the physical structure of the body and such disease and infections as naturally result therefrom.” It specifically excludes “disease or derangement, howsoever caused or contracted.” La.R.S. 23:1021(6); Ferguson v. HDE, Inc., 270 So.2d 867 (La.1972).

The courts have announced that they will give a liberal interpretation to the meaning of the terms “accident” and “injury.” Parks, supra; Lay v. Allied Chemical Corp., 340 So.2d 1076 (La.App. 1st Cir. 1976). See also Malone & Johnson, Worker’s Compensation, 13 La.Civ.L.Tre. Vol. I, § 261.

Even though there is a spirit of liberalism in such cases, the courts do require that the plaintiff who seeks to recover for a disabling heart attack “show a causal relationship between the heart attack, his employment and the resulting disability.” Guidry, supra. Roussel v. Colonial Sugars Company, 318 So.2d 37 (La.1975); Ferguson v. HDE, Inc., supra; Bertrand v. Coal Operators Casualty Company, 253 La. 1115, 221 So.2d 816 (1968).

In defining what constitutes an “accident,” the Supreme Court in the Parks' decision quotes from two previous cases:

“ * * * Louisiana is among the many jurisdictions that look to the employee to determine whether there was an unexpected and catastrophic effect upon him in deciding that an injury is accidental. Ferguson v. HDE, Inc., 270 So.2d 867 (La.1972). We have held that extraordinary physical stress and strain is not essential to the definition of disabling accident: when the performance of the usual and customary duties of a workman cause or contribute to a physical breakdown, the statutory requirements for an accidental injury are present. Ferguson v. HDE, Inc., 270 So.2d 867 (La.1972); Bertrand v. Coal Operators Casualty Co., 253 La. 1115, 221 So.2d 816 (1968). * * *” Parks, supra, p. 281.

In the instant case, we can look to the incident on April 15, 1978, when Mr. Harrison did have an “event which did produce at the time objective symptoms of an injury,” as constituting an accident. He related that he had a shortness of breath and pain in his chest. But this does not end the inquiry.

Even though plaintiff might have satisfied the statutory definition of an accident, he has failed to show that he has suffered “personal injury” by way of this accident. See La.R.S. 23:1031. Even though there may be objective symptoms of an injury on April 15, 1978, there has been no showing of “violence to the physical structure of the body.” This definitional phrase of injury has been construed to mean “a physical breakdown.” See Bertrand, supra; Ferguson, supra; and Parks, supra.

Although heart attacks have been held to be compensable injuries within the meaning of the workmen’s compensation statute, Roussel, supra; Bertrand, supra; Lay, supra; Fields v. Sperry Rand Corp., 343 So.2d 339 (La.App. 2nd Cir. 1977); Rowland v. Continental Oil Co., Inc., 374 So.2d 734 (La.App. 3rd Cir. 1979); Lonzo v. Holsum Bakeries, Inc., 363 So.2d 1280 (La.App. 4th Cir. 1978), all of the medical testimony is that this plaintiff has not suffered a heart attack.

All of the doctors who saw and treated the plaintiff stated that he was suffering from angina pectoris. Dr. James Hand, an internist, who testified by way of deposition, stated that Mr. Harrison had not suffered a heart attack nor was his condition caused by an accident.

Dr. Calvin, the cardiologist, defined at trial angina pectoris as a symptom manifestation of an underlying condition, in this case a coronary artery disease. Plaintiff was only suffering pain from his long term condition. As Dr. Calvin stated: “Angina by definition does not result in any physical injury or damage.” He concluded that there was no change in Mr., Harrison’s condition following the episode of angina.

Dr. Davis who performed the bypass surgery on Mr. Harrison stated in his deposition that there was nothing wrong with his heart. He affirmed what the other doctors stated that angina was a symptom of the occlusive coronary artery disease and that exertion brings on the angina but not the underlying condition.

The testimony also revealed that the severe occlusive condition of the arteries was a long term condition created by many factors. In addition, it was shown that Mr. Harrison had complained about poor circulation in his legs when he would walk around the sales lot. The record reveals that he underwent surgery in November of 1978 on the leg which showed that the veins in his legs were also occlusive.

We thus affirm the factual finding of the trial court that Mr. Harrison has not suffered an injury within the meaning of the workmen’s compensation statute. Roussel, supra; Rowland, supra.

Mr. Harrison claims that he is totally and permanently disabled from any work of reasonable character because of the accident which caused a change in his physical condition. He contends that the holding of the Bertrand decision mandates this. The trial court found that although Mr. Harrison could arguably be disabled, this disability was not causally related to his former employment citing Williams v. Southern Builders, Inc., 357 So.2d 579 (La.App. 1st Cir. 1978).

In the Bertrand case, the Supreme Court set forth this test for determining the causal connection:

“ * * * The criterion for causal connection between the accident and the disability is: Has the accident changed the plaintiff’s condition so as to render him disabled and unfit for his former employment?” Bertrand, supra, p. 827.

And as stated in Gorbach v. Prager, Inc., 310 So.2d 604 (La.1975):

“ * * * In order to recover benefits under the Louisiana Workmen’s Compensation Law, however, plaintiff must establish that the disability resulted from ‘personal injury by accident arising out of and in the course of his employment.’ Disability is compensable only if it was caused by a work-related accident. LSA-R.S. 23:1031; Prim v. City of Shreveport, La., 297 So.2d 421 (1974); Ferguson v. HDE, Inc., 270 So.2d 867 (1972).”

See also Lonzo, supra.

In this case, plaintiff has failed to prove that he has sustained an injury while in the course and scope of his employment resulting in disability. As the medical testimony reveals, Mr. Harrison’s condition did not change after the attack of angina pectoris nor did he suffer any heart damage. He has failed to prove that an injury (either a heart attack or other damage to the body) occurred which would have rendered him disabled. The pain (angina pectoris) only revealed his underlying condition which was treated by surgery. The surgery may have been said to be disabling but this was not work related.

' The disability in this case — although questionable because Mr. Harrison was terminated from his position but not for medical reasons — is not related to his employment. Without a showing of some type of injury to the plaintiff because of an accident, there can be no resulting disability from this incident. Johnson v. Ascension Parish School Bd., 342 So.2d 1139 (La.App. 1st Cir. 1977). See Lonzo, supra, Williams, supra, and Guidry, supra, (where the court denies recovery for a heart attack because it was not proven to be work related but awarded benefits because of the fall from the heart attack.) The decision of the trial court in finding no work related disability is thus correct as a matter of fact. Fields, supra; Johnson, supra.

For the reasons assigned, the judgment of the trial court dismissing plaintiff’s suit is affirmed at plaintiff’s cost.

AFFIRMED.


author: CHIASSON, Judge. LEAR, Judge,

text:
    Margaret A. COON v. Deborah Ann Sims LANDRY et al.
    No. 14021.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.
    Margaret A. Coon, in pro. per.
    Ralph Brewer, Baton Rouge, for defendants-appellees Debroah Ann Sims Landry and Everett E. Sims.

      Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

Margaret A. Coon, an attorney by profession, appeals the dismissal of her lawsuit seeking out-of-pocket expenses incurred by her while representing her former clients, Deborah Ann Sims Landry and Everett E. Sims.

Plaintiff, while practicing law in Baton Rouge, was retained by the defendants to represent them in a personal injury action against James A. Knight. The parties entered into a written “Retainer Agreement” which fixed plaintiff’s fee on a contingency basis.

Ms. Coon filed suit on behalf of Debroah Ann Sims Landry, (for the personal injuries she received in the automobile accident) and Everett E. Sims, (for the property damage occasioned to his car) against Knight on October 24, 1977. The lawsuit was at first contested by Mr. Knight, but he thereafter left the state. Ms. Coon obtained a judgment for her clients against Knight in the 19th Judicial District Court on April 23, 1979, in the amount of $3,138.03 and all court costs.

Since Mr. Knight had left the state, the judgment was apparently uncollectable. Plaintiff sent a statement of her expenses in that suit to the defendants for payment. The defendants initially refused to pay, then Mr. Sims did send a letter and a $25.00 check for partial payment, but placed a stop payment order on the check before it was presented for payment. Plaintiff then withdrew as counsel of record in the Sims v. Knight case and filed suit against the Sims, for her out-of-pocket expenses in the amount of $481.83. She later amended her petition seeking $1,000.00 as reasonable attorney’s fees for services rendered on a quantum meruit basis. The defendants objected to the payment of the expenses based on the language of the “Retainer Agreement.”,

The pertinent provision of the contract is as follows:

“I hereby agree that said Attorneys shall receive and recover in addition to any fee earned by said Attorneys hereunder, the amount of all costs, disbursements and expenses incurred by said Attorneys in prosecuting my case to a proper conclusion.”

The trial court construed the phrase “to a proper conclusion” to mean when recovery is made. It found that since no recovery was made the contract was not clear and that this provision must be construed against the plaintiff who drew up the contract.

We agree with the trial court that the language in the contract is vague. To bring “a case to a proper conclusion” is indefinite and subject to many interpretations. Since the contract is vague it must be interpreted against the party preparing the contract. See La.C.C. art. 1958; and Doucet v. Standard Supply & Hardware Company, 250 So.2d 549 (La.App.3rd Cir. 1971).

Plaintiff contends that the decision in Lazarus, Michel, and Lazarus v. Veazy, 151 La. 790, 92 So. 338 (1922), and the Ethical Considerations and Disciplinary Rules of the Louisiana State Bar Association Code of Professional Responsibility mandate the client be ultimately responsible for expenses of the suit.

The Lazarus case stated:

“The fact that plaintiff’s fee for rendering a certain specific service were to be contingent upon success did not mean that they also assumed the payment of costs if unsuccessful.” (citations omitted) “One who undertakes to place the burden of his own debt upon another must show with certainty wherein such other person has thus bound himself, or point out clearly some law which binds him.”

In the Lazarus decision, costs of the interdiction suit were cast against plaintiff by the trial court. The costs in the Sims v. Knight case were cast against the defendant, Knight, and no judgment for costs was cast against the plaintiffs, Sims. In addition, the law between the present parties is the contract and under our construction of the contract it does not make the defendants ultimately liable until funds are recovered. There was no clear understanding by the defendants either through the contract or in conversations with the plaintiff that they would be responsible for the costs if there was no recovery. Although we have a contingent fee contract, the lawyer has the responsibility to inform and make the client understand that he will ultimately be liable for the expenses advanced by the attorney even if the suit is unsuccessful or even if no or only partial recovery is obtained.

The Ethical Considerations and Disciplinary Rules of the Louisiana State Bar Association Code of Professional Responsibility are intended to govern the conduct and practice of law by attorneys. Louisiana State Bar Association v. Edwins, 329 So.2d 437 (La.1976). It does not bind third parties who are not attorneys. Although these Ethical Considerations and Disciplinary Rules dictate to the attorney that the “client must be ultimately liable for expenses,” this does not as a matter of law bind the client. The contractual agreement between the attorney and client and its interpretation is the only binding force on the client.

Plaintiff’s final two arguments are based on the theories of unjust enrichment and acknowledgment of a debt. She contends that the defendants were unjustly enriched because the Sims now have a judgment against Mr. Knight based on her expenditure of $481.83. The sole basis for this claim is the case of Henican, James, and Cleveland v. Strate, 348 So.2d 689 (La.App. 4th Cir.1977). In Henican, the court did grant the plaintiff-attorney an award based on unjust enrichment, but, for his services rendered. The client had been enriched by the recovery of a sum of money. Further, there was a provision in the original contract that specifically provided that the client would be responsible for necessary expenses. No such provision is present here, nor has any enrichment been established. In her appeal, the plaintiff is only seeking out-of-pocket expenses and has abandoned her claim for fees for services rendered.

The defendant, Everett E. Sims, did write a letter to the plaintiff in which he enclosed a $25.00 check. The letter stated: “Here is $25.00 on my half of the bill. I will send $25.00 each month and when I can I will send more.” Before the plaintiff could negotiate the check, Mr. Sims had a stop payment order placed on it. Plaintiff contends that this letter and check represent an acknowledgment of the debt. Assuming plaintiff’s contentions to be true, she must first show that a debt initially existed; this she has failed to do either by contract, by policy considerations, or by the principles of unjust enrichment. Since she has failed in this respect, there can be no acknowledgment of something that has never existed.

We conclude that these defendants did not bind themselves in any fashion for payment of expenses unless there was recovery in their lawsuit. Since there was no recovery, no expenses were owed to the plaintiff. The judgment of the trial court is affirmed at plaintiff’s costs.

AFFIRMED.

LEAR, J., dissents and assigns reasons.

LEAR, Judge,

dissenting.

Appellant, an attorney, seeks reimbursement of litigation expenses advanced by her on behalf of defendants in a separate lawsuit. There appears to be no dispute as to which party will be ultimately responsible for the payment of these expenses. It appears from the record that the defendants (appellant’s former clients) were to be ultimately responsible for payment of these expenses. The issue here is whether appellant’s advanced expenses are due and recoverable by her prior to recovery and collection of a judgment.

There is no evidence in the record indicating that appellant actually explained to or informed defendants that the advanced expenses would be reimbursed only if and when defendants actually received money (a recovery). The evidence shows that there was little actual discussion of this provision and that the defendants received the contract in the mail and signed it in appellant’s law office without questioning this provision. Thus, we must look to the actual words of the agreements and their context, rather than to the parties’ subjective understandings, in determining this issue.

The retainer agreement, entered into by the parties and upon which this suit was brought, states that appellant has agreed “to advance all costs and expenses necessary to prosecute said claim [defendants’] to a proper conclusion.” As to the main issue, the recovery by appellant of these advanced costs and expenses, the agreement further provides:

“I [defendants] hereby agree that said attorneys shall receive and recover in addition to any fee earned by said attorneys hereunder, the amount of all costs, disbursements and expenses incurred by said attorneys prosecuting my case to a proper conclusion.”

I believe that the trial court’s decision is clearly wrong, because (1) the above quoted provision does not condition reimbursement on “a proper conclusion [of defendants’ case] and (2) even if the phrase “prosecuting my case to a proper conclusion” is interpreted to condition recovery of expenses, appellant has fulfilled this condition.

Reading this disputed provision, it seems clear that the phrase “in prosecuting my case to a proper conclusion” was intended to and does merely identify and limit what costs, disbursements and expenses are recoverable by appellant. The purpose of this explanatory phrase is not intended to answer the question “when are these advanced expenses recoverable?”, but rather “which costs, disbursements and expenses are recoverable?” Thus, the phrase limits the attorney’s recovery from the client to those expenses incurred “in prosecuting my case to a proper conclusion.”

Assuming, however, that the trial court was correct in interpreting this phrase to mean that appellant could only recover advanced expenses when the case was brought to a “proper conclusion”, I believe that this condition was fulfilled at the time appellant sued to recover her advanced expenses.

The record is clear that appellant accepted defendants’ case and immediately thereafter began diligently prosecuting it. Considering the normal problems and delays inherent in litigation, her handling of this case appears from the record to be “proper”. This case was pursued by appellant and she obtained a judgment in defendants’ [herein] favor. She then attempted on her own and with defendants’ help, to finalize and execute the judgment. The record indicates, however, that, because the judgment debtor could not be located, this judgment had not been executed at the time appellant filed this suit.

Was there a “proper conclusion” of defendants’ suit? Under the circumstances, I believe there was.

Lawsuits may be properly concluded in a number of ways. In some cases plaintiffs may be successful in obtaining and executing a judgment and thereby actually receiving money. In other cases, through no fault of the attorney, a plaintiff’s suit may ultimately be dismissed, in which case there may be no recovery at all. Other alternatives are voluntary dismissal with no recovery or a compromise settlement. It does not, however, seem reasonable for an attorney to incur (and thereby obligate his client for the payment of) substantial expenses, which may in fact approach or even exceed the amount of the judgment. This is especially true, as in this case, where the expenses of locating the judgment debtor would not be recoverable from the judgment debtor. It appears that this case has been pursued as far as can reasonably be expected. Under these circumstances, this case was concluded, and properly so, at the time appellant brought this instant suit.

Because I believe that defendants could not reasonably have expected appellant to advance and lose the expenses incurred if an actual monetary recovery was not possible, and, even assuming defendants’ understanding to be reasonable, I believe that appellant did bring defendants’ case to a reasonable and “proper” conclusion, appellant should have recovery from defendants of her advanced expenses. I therefore respectfully dissent.


text:
    Frank J. CAPPO v. VINSON GUARD SERVICE, INC. et al.
    No. 14024.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.

      William H. Cooper, Baton Rouge, for plaintiff-appellant Frank J. Cappo.
    Robert L. Kleinpeter, Baton Rouge, for defendant-appellee Vinson Guard Service, Inc. and Sam Cooke.
    Ben L. Guelfo, Baton Rouge, for defendant-appellee Ground Pat’i, Inc.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

Frank J. Cappo, plaintiff-appellant, filed this appeal alleging that the trial court erred in applying the doctrine of mitigation and in fixing the amount of damages awarded to him against the defendants, Vinson Guard Service, Inc., Sam Cooke, and Ground Pat’i, Inc. All of the defendants have answered the appeal.

On June 9, 1978, Cappo along with three companions entered the parking lot of the Ground Pat’i Restaurant on Jamestown Avenue, in the city of Baton Rouge. Sam Cooke, an elderly security guard employed by Vinson Guard Service to patrol the parking lot of the Ground Pat’i confronted Cap-po, and informed him that if he was not patronizing the restaurant that he would have to park his car elsewhere. Cappo, who had been drinking, testified that his intention was to proceed to a nearby nightclub along with his friends. He told Cooke that he knew the owner of the Ground Pat’i, who had given him permission to park in the lot.

Abusive language and threats ensued until the manager of the Ground Pat’i, Lawrence Prather, was notified and came out to settle the dispute. Standing in between Cooke and the plaintiff, Prather tried to learn what the difficulties were, so he could resolve them. Cappo explaining the situation called Cooke, an “old bastard.” Whereupon, Cooke from behind Prather, struck plaintiff causing him to fall, injuring a bone in his left wrist. Prather dismissed Cooke, and allowed Cappo and his party to remain.

Plaintiff filed suit against Sam Cooke, individually; Vinson Guard Service, Cooke’s employer; Ground Pat’i, Cooke’s employer; and the Travelers Insurance Company, the liability insurance carrier of Vinson. On plaintiff’s motion to dismiss, Travelers was dismissed from the case. Ground Pat’i filed a third party demand against Cooke and Vinson seeking indemnity of any award it would be called upon to pay.

At the trial on the merits, the trial court found no question of liability holding that the abusive language used was no excuse for the tortious conduct. Morneau v. American Oil Company, 272 So.2d 313 (La.1973). It held that Cooke, with Vinson Guard as Cooke’s employer under La.C.C. art. 2320, and Ground Pat’i as Cooke’s special employer under LeJeune v. Allstate Ins. Co., 365 So.2d 471 (La.1978), were liable in solido for the damages sustained by the plaintiff.

On the question of damages, the trial court found an award of $13,490.00 to be reasonable, but reduced it to $7,500.00 on mitigating factors. The two reasons cited for mitigation were: 1. Plaintiff played a major part in provoking the incident; 2. Plaintiff’s failure to minimize his damages through surgery. The court granted Ground Pat’i’s third party demand against Cooke, only, but concluded that Vinson Guard was liable for contribution as a soli-dary obligor. From this judgment plaintiff appealed complaining of the assessment of damages and the application of the doctrine of mitigation. Vinson Guard and Cooke answered the appeal seeking a reversal or, in the alternative, that the damages be reduced. Ground Pat’i answered the appeal seeking to reverse the trial court’s holding that Cooke was its employee and that it was a solidary obligor along with Vinson Guard and Cooke. In the alternative Ground Pat’i submits that the court erred in failing to grant its third party demand against Vinson Guard for indemnity.

The issue of liability of the three defendants will be discussed first. There is no merit to Sam Cooke’s contention that the trial court erred in finding him liable. The intentional battery committed upon the plaintiff is a sufficient basis for finding Cooke liable as a tortfeasor under La.C.C. art. 2315. As found by the trial court, the verbal provocation cannot excuse the commission of a battery upon a person. Morneau, supra, Augustine v. Washington Parish Police Jury, 383 So.2d 1271 (La.App. 1st Cir. 1980). Holden v. Straughn, 376 So.2d 1292 (La.App. 2nd Cir. 1979).

There is also no merit to Vinson Guard’s argument for not being held liable. Vinson Guard was the general employer of Cooke; the one who paid him and the one who had the ultimate power to terminate him. Under La.C.C. art. 2320 and the decision in Foster v. Hampton, 381 So.2d 789 (La.1980), Vinson Guard is solidarily liable to the plaintiff with Cooke.

Ground Pat’i contends that it should not be held liable as Cooke’s special employer since the relationship between Ground Pat’i and Vinson Guard was that of independent contractor and not that of master and servant. In addition Ground Pat’i argues that if Cooke is considered its employee, he was not acting within the course and scope of his employment when he struck the plaintiff. We find that the trial court correctly treated both of these points in its written reasons for judgment and we approvingly quote therefrom the following:

“At trial the manager of the Ground Pat’i, Lawrence Prather, testified that he periodically checked on the parking lot as a part of his duties. He further testified that he could tell Cooke who to admit and who to exclude from the lot. Additionally, Prather said that he had authority to have Cooke replaced by another Vinson guard. Prather stated that he exercised his authority over Cooke on the night of the incident by sending Cooke home. Also, there is no question that Cooke’s activities during the performance of his duties benefitted the Ground Pat’i as well as Vinson Guard Service. Thus, the Ground Pat’i had supervision and direction of Cooke’s activities during the performance of his duties and for that reason must be considered Cooke’s special employer for the purpose of this suit. (See Thompson v. New Orleans Public Belt, 373 So.2d 1312 (La.App. 4th Cir. 1979); LeJeune v. Allstate Ins. Co., 365 So.2d 471 (La.1978).
“The Ground Pat’i argued in the alternative that even if it were found to be Cooke’s employer, it should not be held liable because Cooke’s action in striking the plaintiff was outside the course and scope of his employment. Again, the court cannot agree. Cooke did not turn aside from his employment to pursue a personal motive such as revenge. The argument with the plaintiff occurred as a part of Cooke’s duties, and the battery was committed during the argument. Cooke was attempting to enforce the parking regulations that he had been charged to enforce. The blow, though probably sparked by a personal insult, never became separate from Cooke’s employment.”
See also LeBrane v. Lewis, 292 So.2d 216 (La.1974); and Miller v. Keating, 349 So.2d 265 (La.1977).

Our attention next turns to the issue of the assessment of damages and whether the trial court erred in finding the plaintiff failed to mitigate his damages. Appellate review of an award for damages was discussed by the Supreme Court in Reck v. Stevens, 373 So.2d 498 (La.1979). In that decision the court outlined the test for appellate courts to use in reviewing awards as follows:

“It is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review, for articulated reason, be considered either excessive, Carollo v. Wilson, 353 So.2d 249 (La.1977); Schexnayder v. Carpenter, 346 So.2d 196 (La.1977), or insufficient, Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967).”

Reck, supra, p. 501.

Based on the injury and treatment hereinafter discussed we do not find any abuse of discretion in the trial court’s award of $13,490.00.

The trial court after making its award, reduced it to $7,500.00 because plaintiff failed to mitigate his damages. The necessity for a plaintiff to mitigate his damages is well founded in Louisiana Law. See Pope v. Spiers, 347 So.2d 1191 (La.App. 1st Cir. 1977). The first factor in reducing the award was the provocatory words used by the plaintiff before he was struck by Cooke. As stated by the court in Watts v. Aetna Casualty & Surety Company, 309 So.2d 402, 406 (La.App.2d Cir. 1975):

“Provocation by words, however, can be considered in mitigation of damages although rejected as justification for an unlawful act. Morneau v. American Oil Company, supra.”

The plaintiff called Cooke, an “old bastard” right before he was struck. The trial court found that these words spoken about Cooke to a third party, Lawrence Prather, was a fact that was proper to use in mitigating damages. We agree with this finding of fact and conclusion of law. See Hoiden, supra.

In regards to the second basis for mitigation, the trial court was correct in finding that the plaintiff failed to submit to reasonable medical treatment for his injury. Plaintiff was being treated by Dr. Alan Farries, who had put a cast on the wrist following the incident. No improvement was shown and finally in November, of 1978, Dr. Farries recommended surgery. However, plaintiff failed to undergo the surgery because of other commitments.

The surgery recommended had a sixty to sixty-five percent success rating and would have left the plaintiff with a ten percent disability to the left wrist. Without the surgery his disability is estimated to be thirty to thirty-five percent. We agree that this surgery would have been beneficial to the plaintiff and was reasonable medical treatment. Reeves v. Travelers Ins. Co. 329 So.2d 876 (La.App. 2nd Cir. 1976); Dohmann v. Richard, 282 So.2d 789 (La.App. 3rd Cir. 1973); Welch v. Ratts, 235 So.2d 422 (La.App. 2nd Cir. 1970). Therefore, the trial court was correct in reducing the award because plaintiff failed to mitigate his damages.

Our final inquiry in this case concerns Ground Pat’i’s third party demand against Vinson Guard seeking indemnification. The trial court only allowed Ground Pat’i to seek indemnification from Cooke, since Cooke was considered Ground Pat’i’s employee. There is no showing of any contractual agreement between the two employers that would allow indemnification. Nor has there been any authority by way of statute or case law which would substantiate Ground Pat’i’s position. As a solidary obligor, Vinson Guard is liable for contribution under Civil Code Article 2103 to Ground Pat’i if it pays the judgment in full,

For the reasons assigned, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.


text:
    Marta P. LATINO v. Joseph N. LATINO.
    No. 14025.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.
    Elaine W. Guillot, Slidell, for plaintiff-ap-pellee.
    Bernard S. Smith, Covington, for defendant-appellant,
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

This is an appeal by the defendant, Joseph N. Latino, from a judgment in favor of the plaintiff, Marta P. Latino, granting a divorce, granting custody of two of the children to the plaintiff and custody of the older child to Mr. Latino, subject to visitation privileges, awarding child support to Mrs. Latino for the two younger children in her custody, and specifically finding fault on the part of Joseph N. Latino. It is this last finding to which the appellant objects; he asserts that the trial court committed manifest error in finding Mr. Latino at fault for the separation or in not finding mutual fault.

This action commenced as a petition for divorce based on the parties living separate and apart, without reconciliation, continuously for a period of more than one year. The wife sought custody and child support, but did not ask for alimony for herself. The husband answered in the nature of a general denial, but admitted the continuous separation without reconciliation. By stipulation of counsel, the “issue of fault” was tried.

We find that the pleadings do not support such a stipulation. Under LSA-R.S. 9:301, fault is not an issue to be determined in considering whether or not a divorce should be granted. Brady v. Brady, 388 So.2d 57 (La.App. 1 Cir. 1980); Vignes v. Vignes, 311 So.2d 615 (La.App. 1 Cir. 1975).

In discussing the cited statute (when the separation term was two years instead of the present one year), the Court in the case of Nieto v. Nieto, 276 So.2d 362, 365 (La. App. 4 Cir. 1973), stated:

“The issues before the court were a divorce on the grounds of separation of two years as provided in R.S. 9:301, together with ancillary matters of custody and child support. The wife did not seek alimony for herself, either pendente lite or permanently, nor is there a request for such alimony. We said in the case of Zarrilli v. Zarrilli, 129 So.2d 568 (La.App. 4th Cir. 1961) that evidence of fault in a divorce suit predicated on two years of separation wherein the wife was not seeking alimony was immaterial and that there was no justiciable issue posed for the trial court to consider when the wife simply sought preservation of her rights for future alimony. Recently, in the case of Wagner v. Wagner, 248 So.2d 96 (La. App. 4th Cir. 1971) we stated that it is manifest that under LSA-R.S. 9:301 fault is not an issue to be determined in considering whether or not a divorce should be granted but appears only if the wife should ask for alimony. Accordingly, we conclude that no issue of fault was presented in this case, and that if it be considered that the statement of fault was made in connection with the right to alimony (which we do not believe it to be) such a finding would be in error.”

We find that no issue of fault was presented in the instant case, thus we hold that the trial court erred in making a finding of “fault on the part of the defendant, Joseph N. Latino.”

For the foregoing reasons, we amend the judgment of the District Court to exclude the finding of fault on the part of the defendant, Joseph N. Latino, and, as amended, we affirm the judgment. The costs of this appeal are to be borne equally by appellant and appellee.

AMENDED AND AFFIRMED.

      . LSA-R.S. 9:301 provides:
      “When the spouses have been living separate and apart continuously for a period of one year or more, either spouse may sue for and obtain a judgment of absolute divorce.”


text:
    BRUNSON BONDING & INSURANCE AGENCY, INC. v. TOWN TALK CAFETERIA, INC.
    No. 7910-0390.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.
    Rehearing Denied May 18, 1981.
    Horace C. Lane, Lane & Clesi, Baton Rouge, for plaintiff (appellee).
    G. Allen Walsh, Baton Rouge, for defendant (appellant).
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

This is an appeal by the defendant from a judgment in favor of the plaintiff in the amount of $547.00 plus interest and costs.

Brunson Bonding & Insurance Agency, Inc., plaintiff, brought suit against Town Talk Cafeteria, Inc., defendant, in the City Court of Baton Rouge, Parish of East Baton Rouge, seeking judgment for $547.00 plus interest and costs.

The plaintiff’s petition consists of three paragraphs. In the first paragraph, the plaintiff alleges that the defendant is indebted to the Agency in the amount of $547.00. Paragraphs 2 and 3 of the petition read as follows:

“2.
“Defendant, Town Talk Cafeteria, Inc. at various times, purchased various policies of insurance through the Brunson Bonding & Insurance Agency, Inc. with premiums being carried by Brunson Bonding & Insurance Agency, Inc. on an open account.
“3.
“Defendant, Town Talk Cafeteria, Inc. currently has a past due balance of FIVE HUNDRED FORTY-SEVEN AND NO HUNDREDTHS DOLLARS ($547.00) and has failed to make any payment thereon despite amicable demand.”

A statement was attached to the petition, addressed to the defendant, listing various policies of insurance by number, showing the type of insurance, the status of the policies, the premiums charged and the balance due as of January 23, 1979.

Defendant filed an answer in the nature of a general denial, and further answered as follows:

“Defendant specifically represents that it never contracted with Petitioner to secure any insurance coverage of any nature and further, has never received delivery of any insurance contract mentioned above in Petitioner’s petition.”

When the matter came on for trial, the plaintiff offered only the testimony of its employee, Joseph Simcoe, who was “the person in charge of the Town Talk Cafeteria account.” The defendant countered with the testimony of Jacqueline Bennett, the owner of Town Talk Cafeteria, and Mrs. Bennett’s stepfather, Lee Bardock. The evidence shows that Mrs. Bennett wanted fire and liability insurance on the restaurant and automobile insurance on two cars. No insurance policy was ever delivered to the defendant and the amount of the premiums was never agreed upon. The plaintiff, however, introduced into evidence a fire policy of Zurich Insurance Company purportedly on Town Talk Restaurant (attached to the policy is a letter from Zurich to Brunson “cancelling” the policy unless Town Talk installed an “automatic extinguishing system and a hood over the cooking area”); a restaurant liability police of Zurich Insurance Company purportedly on Town Talk Restaurant; a liability insurance policy (UM) on a Cadillac automobile; and a liability policy (UM) on a Camaro automobile owned by Mrs. Bennett.

The proof offered by the plaintiff does not support its allegation that there was an agreement for insurance with the defendant. The most that can be said for the evidence in the record is that it shows that Town Talk, through Mrs. Bennett, was seeking a package deal for fire and liability insurance on the restaurant and automobile liability coverage for two automobiles. The amount of the premiums was never agreed upon and no binder or insurance policy was ever delivered to Town Talk. The insurer would not write fire insurance on the restaurant unless the restaurant made certain fire-prevention corrections as stated above, which were not made; and would not write the other insurance except as a package deal.

A similar situation is described in Commercial Standard Ins. Co. v. Market Produce Co., 197 So. 154, 156 (La.App. 2 Cir. 1940), as follows:

“And we are also certain from the record that there was never a completed and binding contract between plaintiff and defendant. There was never any meeting of minds as to the price, and the record fails to show by a preponderance of the testimony, as required by law, that the policy of insurance was ever in defendant’s possession.”

For the foregoing reasons, we reverse the judgment appealed, and render judgment in favor of defendant dismissing the plaintiff’s suit. The plaintiff-appellee is cast for all costs.

REVERSED AND RENDERED.


author: EDWARDS, Judge.

text:
    G. Thomas ARBOUR, Individually and As Head and Master of the Community Existing Between Himself and Dianne Rabalais Arbour and Dianne Rabalais Arbour, Individually, v. TOTAL CATV, INCORPORATED.
    No. 14082.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.
    Gerald Thomas Arbour, Baton Rouge, for plaintiffs-appellants Gerald Arbour, Individually, etc., and Dianne Rabalais Arbour.
    John S. White, Jr., Baton Rouge, for defendant-appellee Total CATV, Inc.
    Before LOTTINGER, EDWARDS and PONDER, JJ
   EDWARDS, Judge.

Plaintiffs, G. Thomas Arbour and Dianne Rabalais Arbour, brought suit against Total CATV, Incorporated, seeking preliminary and permanent injunctions, $7,500 in damages, legal interest and all costs. Plaintiffs’ suit was based on the fact that CATV, a private cable television corporation, had buried cable on the Arbours’ property without their permission.

Following a contradictory hearing, plaintiffs’ prayer for a preliminary injunction was denied.

Subsequent to the decision denying them a preliminary injunction, but prior to answer by CATV, plaintiffs filed an amending and supplemental petition in which certain local ordinances were specifically attacked on constitutional grounds. Plaintiffs also requested another hearing in an attempt to secure a preliminary injunction.

At the bottom of plaintiffs’ request for a second hearing, the district judge wrote the following in longhand:

“August 29, 1980
Denied. This matter has been fully tried on merits of plaintiff’s claim that CATV has no right to use of the servitude. The amended petition seeks to inject new parties and issues into a matter fully tried.
Plaintiff’s rights are adequately preserved by the devolutive appeal granted this day.
Paul B. Landry Jr.
Judge Pro Tern”

Plaintiffs appeal the trial court’s initial denial of a preliminary injunction. LSA-C. C.P. Art. 3612.

The purpose of an injunction is to prevent irreparable injury, loss or damage. Irreparable harm is the sine qua non for any injunction. LSA-C.C.P. Art. 3601. Reed v. Allison & Perrone, 376 So.2d 1067 (La.App. 4th Cir. 1979); Greenberg v. DeSalvo, 254 La. 1019, 229 So.2d 83 (1969), cert. denied 397 U.S. 1075, 90 S.Ct. 1521, 25 L.Ed.2d 809 (1970).

A review of the record shows no likelihood that plaintiffs will suffer irreparable harm. Therefore, insofar as the trial court judgment denied plaintiffs’ request for a preliminary injunction, the judgment is affirmed.

The parties did not stipulate that all issues were to be decided at the preliminary injunction hearing. In addition, plaintiffs filed an amending and' supplemental petition. Clearly, the trial court judgment decided neither plaintiffs’ right to a permanent injunction nor the issue of damages. The matter will therefore be remanded for further proceedings on the remaining issues. Hickman v. Strain, 349 So.2d 905 (La.App. 1st Cir. 1977); Olsen v. City of Baton Rouge, 247 So.2d 889 (La.App. 1st Cir. 1971).

Appellee cites Primeaux v. Hinds, 350 So.2d 1310 (La.App. 3rd Cir. 1977), for the proposition that

“where a judgment denying a preliminary injunction after a hearing on the rule also passes on the merits of the case and effectively disposes of all issues presented by the pleadings such judgment is a final judgment.”

Appellee urges that all issues have been effectively disposed of and that no trial on the merits is needed.

We cannot agree with this contention. It is clear that the Louisiana Supreme Court will not allow the trial of a rule for a preliminary injunction to replace a trial on the merits, in the absence of such a stipulation by the parties, no matter how thoroughly the merits have been treated, even by the court of appeals. See Dunn v. Sutton, 381 So.2d 1221 (La.1980), in which cer-tiorari was granted and the case was remanded to the trial court despite a thorough treatment of the merits both at trial and on appeal in Dunn v. Sutton, 378 So.2d 485 (La.App. 1st Cir. 1979).

For the foregoing reasons, the judgment appealed from is affirmed and the case is remanded for further proceedings according to law. All costs of this appeal are to be paid by G. Thomas Arbour and Dianne Ra-balais Arbour.

AFFIRMED AND REMANDED.