text:
    Clyde J. ROBILLARD v. P & R RACETRACKS, INC., et al.
    No. 14332.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.
    Rehearing Denied Nov. 23, 1981.

      Walton J. Barnes, Joseph P. Macaluso, Jr., Baton Rouge, for plaintiff-appellant.
    John I. Moore, Frederick R. Tulley, Baton Rouge, for defendants-appellees.
    Before COVINGTON, COLE and WATKINS, JJ.
   COVINGTON, Judge.

This suit seeks recovery for damages for personal injuries sustained by plaintiff, Clyde J. Robillard, while engaged in a time trial run of his 1964 Plymouth automobile (referred to by drag racers as a “Super B automatic”) on March 7, 1977, at State Capitol Dragway on U.S. Highway 190 near Erwinville, in West Baton Rouge Parish, Louisiana. After trial by jury, verdict was returned by the jury in favor of all defendants, with the trial judge signing a judgment in accordance therewith. Plaintiff’s motion for new trial was denied, and the plaintiff has appealed.

The suit arises out of an accident at the dragway when Robillard, during a time trial run of his stock car, collided with a disabled racing car parked off the racing strip past the finish line. The disabled vehicle, a 1969 Chevrolet Camaro, was being attended to by Patrick Wayne Collins (its driver), Lawrence Thibodeaux and Rodney Harleaux, when it was struck by the Robil-lard car. Suit was originally brought by Collins, Thibodeaux and the widow of Har-leaux against P & R Racetracks, Inc. d/b/a State Capitol Dragway, several of its employees, and Clyde J. Robillard for personal injuries to Collins and Thibodeaux and fatal injuries to Harleaux. Robillard in turn filed suit against the race track, its employees, its insurer, the National Hot Rod Association (NHRA), Collins and David Haynes, the alleged driver of the competing racer.

Prior to trial, the claims of Collins, Thibo-deaux and Harleaux were settled, and their suit was dismissed as to all defendants, including Robillard. Robillard’s suit came on for trial before a jury on March 24 through 31, 1980. At the close of Robil-lard’s case, a directed verdict was granted in favor of NHRA and several individual defendants, leaving as defendants the track operator, its liability insurer, the owner of the drag strip, two major stockholders of the owner and operator of the track, several individual track employees, and the alleged driver of the competing vehicle. On March 31,1980, the case was submitted to the jury, which found for all defendants and against Robillard. In jury interrogatories, the jury found none of the defendants negligent, found the plaintiff negligent, found plaintiff had assumed the risk, and found that plaintiff had executed a release and hold harmless agreement with the race track, relieving it and its employees of any liability. After plaintiff’s motion for new trial was denied, he perfected this appeal. We affirm.

As stated, the accident occurred during a time trial run at the State Capitol Drag-way, and involved the Plymouth automobile being driven by Robillard and Collins’ disabled Camaro automobile, which was parked off the racing surface about 300 feet past the finish line of the drag strip. Collins had developed mechanical problems during his run in the right-hand lane of the drag strip and had to coast down the strip past the finish line to get off to the right of the strip. The attendants of Collins’ car thought it had “blown” an engine and that there might be oil or debris on the racing surface, so they informed a race track employee of the situation, who in turn advised Norman Pearah, co-owner of the track. Pearah then drove down the drag strip, inspecting the racing surface for any oil or debris, but found none.

After the inspection of the strip, Pearah talked with Robillard, who was getting ready to run his time trial, about the track’s condition and the location of the disabled Camaro, off the track. Testimony by other eyewitnesses corroborated that the Camaro was parked off the racing surface.

Not only was Robillard thus informed of the location of the disabled car, but, before making his run, he could see the car off the track. He testified:

“I saw the white Camaro that had broken down past the finish line approximately three, four, or five hundred feet, whatever, and he was pulled off of the track into the grassy area and the left rear wheel was partly on the old surface of the track, not the new surface.”

The plaintiff failed at the trial court level to convince the jury that any of the defendants were negligent. We find that the jury findings and verdict were based on substantial evidence from the testimony of numerous witnesses at the trial.

First, after Collins made his run in the Camaro and developed mechanical problems, Pearah, a co-worker, made a visual inspection of the drag strip by driving down the track to a point past the finish line to check for oil or debris. Finding that the Camaro was off the track several hundred feet past the finish line and that there was no oil or debris on the track surface, the time trials were resumed. It is not regarded, in drag racing, as unreasonably dangerous or unsafe to allow a car to engage in a time trial run, even though a disabled ear may be off to the side near the track and beyond the finish line. The evidence established that the accident was not caused by oil or debris on the track, or that the track facilities caused or contributed to the accident.

The primary contention of the plaintiff was that the accident occurred when he was forced to take evasive action to avoid colliding with a green car racing in the left hand lane, which, according to Robillard, swerved in front of him as he was making his time trial run. Plaintiff stated that this green car was of a different class from his much faster racing car, which he claimed to have been a factor in causing the accident.

Contrary to the assertion of plaintiff, the substantial weight of the evidence established that there was no other ear racing in the left lane at the time of Robillard’s run, and that Robillard was alone on the track at the time of the accident. Haynes (the alleged driver of the green car) was not racing due to car trouble; and, in fact, he was in the bleacher stands at the time of the accident and actually witnessed the Ro-billard time trial run and accident. Of the other witnesses who testified at the trial, six of them (most of whom were called to the stand by Robillard), testified that there was no other car on the drag strip in the left lane when Robillard made his run. There is amply evidence to establish that Robillard was racing alone when he lost control of his vehicle, and that the “green car” was a “phantom car.”

In any event, the assumption of risk doctrine is dispositive of the instant case. In his charge to the jury, the trial judge instructed the jury that the defendants had the burden of proving that plaintiff had assumed the risk of harm that happened to him; that in order to conclude that plaintiff had assumed the risk, the jury had to find that plaintiff fully understood the danger which was involved and that plaintiff then voluntarily exposed himself to the danger or risk of harm. This instruction tracks the language of 2 Louisiana Jury Instructions, Civil, 67 (1980), which cited Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133 (1971). See Symposium: Assumption of Risk, 22 La.L.Rev. 1 (1961). To jury interrogatories numbers 23 and 24, the jury responded that Robillard assumed the risk of the accident and injuries sustained by him and that such assumption was a cause thereof.

For a plaintiff to assume a risk, he must knowingly and voluntarily encounter the risk which caused him harm; plaintiff must understand and appreciate the risk involved and must accept the risk as well as the inherent possibility of danger which may result from that risk. Prestenbach v. Sentry Insurance Company, 340 So.2d 1331 (La.1976); McInnis v. Fireman’s Fund Insurance Company, 322 So.2d 155 (La.1975); Dorry v. Lafleur, 387 So.2d 690 (La.App. 3 Cir. 1980). As our Supreme Court stated in Prestenbach, the necessary ingredient for a plaintiff to assume a risk is “knowledge;” there must be a “knowing assumption of risk,” which means that a plaintiff has actual knowledge of the risk involved, or knowledge is imputed to him because he actually makes certain observations and, from them, he should reasonably have known that a risk was involved. 340 So.2d at 1335.

As the Court said in Bass v. Aetna Insurance Company, 370 So.2d 511 (La.1979):

“Assumption of the risk therefore is properly applicable to those situations where the plaintiff, with knowledge of the peril, voluntarily enters into a relationship with defendant involving danger to himself because of defendant’s contemplated conduct.”

It is established that Robillard, an experienced driver who had actively been engaged in racing for some 20 years, “voluntarily” entered into a racing activity that might involve danger to himself due to other racers’ behavior or conditions on the drag strip.

Several Louisiana decisions have discussed assumption of risk in cases dealing with participation of plaintiffs in games, contests or sports. In Richmond v. Employers’ Fire Insurance Company, 298 So.2d 118 (La.App. 1 Cir. 1974), writ denied, 302 So.2d 18 (La.1974), the Court stated that:

“[0]ne who participates in a game or sport assumes the risk of injuries which are inherent in or incidental to that game or sport.”

Other cases involving sports dealing with the question of negligence or assumption of risk include: Gaspard v. Grain Dealers Mutual Insurance Company, 131 So.2d 831 (La.App. 3 Cir. 1961); Benoit v. Hartford Accident & Indemnity Company, 169 So.2d 925 (La.App. 3 Cir. 1964); Benedetto v. Travelers Insurance Company, 172 So.2d 354 (La.App. 4 Cir. 1965), writs denied, 247 La. 872, 175 So.2d 108 (1965); Hyland v. Durr, 212 So.2d 158 (La.App. 4 Cir. 1968).

In Alfonso v. Market Facilities of Houston, Incorporated, 356 So.2d 86 (La.App. 1 Cir. 1978), writ denied, 357 So.2d 1169 (La. 1978), this Court held that:

“[0]ne who voluntarily utilizes such [recreational] facilities assumes the reasonably foreseeable risks which are inherent in the use thereof.”

According to the evidence, plaintiff had actual knowledge of the presence of the disabled Camaro some few feet off the drag strip several hundred feet beyond the finish line. He knew the condition of the track. He was a capable and experienced drag-racing driver. Drag racing is a dangerous sport; plaintiff knew of its inherent danger. He actually, subjectively comprehended the risk of undertaking a time trial run under the existing conditions. Robillard clearly proceeded in the face of the known danger by voluntarily racing his car. Considering the foregoing principles, we are of the opinion that the jury and the trial court were correct in concluding that plaintiff knowingly assumed the risk of injuring himself and that no negligence on the part of the defendants has been shown.

On this appeal, the plaintiff takes the position that the trial court’s charge to the jury was inadequate, confusing and misleading in that it was based on proximate cause rather than duty-risk in determining negligence, and in that the charge improperly stated the risk assumed by the racing driver. However, no obligation to any instruction was made by either party until after the jury had been retired for its deliberation.

Since the appellant did not object timely (properly), he is precluded from this assignment of error in this Court. Alexander v. Alton Ochsner Medical Foundation, 276 So.2d 794 (La.App. 4 Cir. 1973), writ denied, 279 So.2d 695 (La.1973). LSA-C. C.P. art. 1793 sets forth the time for objecting to jury charges as being before the jury retires to consider its verdict. The jurisprudence interpreting this procedural article holds that where a party fails to object to jury instructions prior to the jury’s retirement for deliberation, he waives any defects therein. Ainsworth v. Bituminous Casualty Corporation, 379 So.2d 1187 (La.App. 3 Cir. 1980), writ denied, 381 So.2d 1233 (La.1980).

Nevertheless, the charge concerning negligence now objected to was given by the judge as a part of his general comments on negligence and was in no way prejudicial to the plaintiff’s case. When this charge on negligence is viewed in light of the entire charge given to the jury, it is plain that the trial judge did not suggest that the jury was not allowed to consider “duty-risk” in determining negligence, as the appellant claims; the judge clearly stated the standard of care by which the jury was to measure the defendants’ conduct.

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. Hebert v. Ordoyne, 388 So.2d 407 (La.App. 1 Cir. 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).

At trial, the defendants were properly allowed to introduce into evidence a tech card signed by Robillard on the day of the accident. This tech card contained a “Release of Liability” clause reading as follows:

“RELEASE OF LIABILITY
“This release limits your right to recovery of damages in case of accident. Read it before signing.
“In applying to enter this race I promise that I will inspect the track prior to running on it, will assure myself that the track and adjacent areas are properly designed and maintained, and further agree that I will not participate in this race until I have completed an inspection which satisfies me that these areas are safe for race purposes. I will further note existing weather conditions and do agree that I voluntarily assume all risks arising from conditions related to use of the track area by myself or others.
“I do agree to hold harmless and indemnify the owners and possessors of this track for any loss, cost, expense, damage or injury arising from my participation in this event.”

There have been several cases in Louisiana dealing with such “release of liability” or “hold harmless agreements.” For example, in Forsyth v. Jefferson Downs, Inc., 152 So.2d 369 (La.App. 4 Cir. 1963), writ refused, 244 La. 895, 154 So.2d 767 (1963), the Court set down the general rule that under Louisiana Civil Code Article 11 it is not in contravention of public policy for a party to assume the risk of injuring himself or his property in consideration of his use of the premises (a race track). Also, see Peninsular Fire Insurance Company v. Louisiana Debating & Literary Association, 385 So.2d 510 (La.App. 4 Cir. 1980), writ denied, 393 So.2d 742 (La.1980).

As can be seen from the evidence, Robil-lard knew of the inherent dangers involved in drag racing. He was an experienced drag car racer. He was aware of the risk, understood it, and appreciated it before he signed the assumption of risk release clause in the tech card.

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. 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 on its reasonable evaluation of credibility; Harris v. State Through Huey P. Long Memorial Hospital, 378 So.2d 383 (La.1979); the record does not reveal that the finding is clearly wrong or manifestly erroneous, Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

In addition, we have carefully reviewed and evaluated the record, and we find no liability on the part of the defendants. They exercised the required amount of care toward Clyde J. Robillard that the particular circumstances and conditions demanded; Robillard assumed the risk of harm and the defendants were not negligent. 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.

      . Judgment was rendered and signed in favor of defendants, P & R Racetracks, Inc., Norman Pearah, Charles Rogers, C & N Land Investments, Inc., Charlie Simoneaux, Rosemary Simoneaux, Cary Menard, Jerry Diecks, Wayne Pitre, David Haynes, National Hot Rod Association, Vallery Pitre, Ruth Pitre, Jerry Virgada-mo, American Home Assurance Company and Lynnwood Dupre.

      . LSA-C.C. art. 11 states:
      “Individuals can not by their conventions, derogate from the force of laws made for the preservation of public order or good morals. “But in all cases in which it is not expressly or impliedly prohibited, they can renounce what the law has established in their favor, when the renunciation does not affect the rights of others, and is not contrary to the public good.”


source: Caselaw Access Project

author: COLE, Judge.

license: Public Domain

text:
    Terrence E. YOUNG v. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, Lallie Kemp Charity Hospital.
    No. 14333.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.
    Writ Denied Dec. 14, 1981.

      Archie C. Tatford, Jr., New Orleans, for appellant.
    Donald Puckett, Staff Atty., Dept, of Health and Human Resources, Office of the Gen. Counsel, Baton Rouge, for appellee.
    Laura Denson Holmes, Civ. Service Legal Counsel, Dept, of State Civ. Service, Baton Rouge, for George Hamner, Director, Dept, of State Civ. Service.
    Before COVINGTON, COLE and WATKINS, JJ.
   COLE, Judge.

Appellant Terrence E. Young appeals his dismissal from his position as Nurse Anesthetist III at Lallie Kemp Charity Hospital. Mr. Young raises several issues on appeal. We will divide the issues into two basic categories: one category raises questions concerning the sufficiency of the evidence adduced at the hearing; the other category deals with various procedural matters.

Mr. Young was informed of his suspension from his position in a letter signed by Richard L. Burge, Superintendent of appel-lee hospital, dated September 20, 1978. In a letter dated October 10, 1978, Mr. Young was informed he was dismissed from his employment as of October 13, 1978. The dismissal letter charged Mr. Young with six specific violations of his duties and contained a seventh charge alleging he had failed “to meet the basic standards and minimum requirements of performance of a nurse anesthetist. . . . ”

At the lengthy hearing many witnesses testified as to the facts surrounding the various incidents. Several experts were called by each side to give their opinion as to the responsibility of the nurse anesthetist and to testify on other medical matters.

The Commission issued an opinion on November 10, 1980, finding sufficient proof of charges 1, 2 and 3 and denying Mr. Young’s appeal of his dismissal. Mr. Young then filed this appeal.

We will consider first appellant’s argument that the evidence did not support the various charges. Charge 1 reads as follows:

“Failure to properly monitor the vital signs, specifically the pulse and blood pressure of the patient identified in Chart # 118728, on or about the 25th day of August, 1978, at Lallie Kemp Charity Hospital and the failure to accurately report the findings of any monitoring of those signs by you to the surgeons in charge of the surgical procedure, or another medical doctor on that date at that place.”

Several persons testified at the hearing concerning the events surrounding this particular surgical procedure (an amputation of a gangrenous leg). The anesthesia records indicated the patient’s blood press was 100 systolic over 60 diastolic prior to the operation. A spinal anesthetic was given at 8:40 p.m. and the blood pressure dropped to 80 over 60. Dr. Richard Davies, the surgeon in charge, testified he then ordered Mr. Young to administer fluids to the patient and the blood pressure was brought up to 90 over 60. The chart showed after surgery commenced the pressure then dropped to 68 over 48 and remained at this level. Approximately fifteen minutes later a nurse notified Dr. Davies that the patient’s pupils were fixed and dilated and that the patient did not seem to be breathing. Dr. Davies, almost through with the surgery, came to the head of the table and tried to resuscitate the patient. In spite of several efforts to revitalize the patient, including heart massage, insertion of an endo-tracheal tube, and the administration of various drugs, the patient was pronounced dead at 10:00 p.m.

There are two factual disputes involved in charge 1. The first is whether or not Mr. Young accurately reported the blood pressures to Dr. Davies. Mr. Young testified his general procedure was to always inform the surgeon of the patient’s blood pressure, particularly when the patient was having difficulty. Although he does not specifically remember doing so (because of the passage of almost a year and a half between the incident and the hearing) he stated he was sure he would have informed Dr. Davies of the extremely low blood pressure. To the contrary, Dr. Davies insisted repeatedly Mr. Young did not report the blood pressures as they appeared on the chart. He stated he would not have continued to operate if he had known the pressure was as low as 80 over 60 and certainly would not have proceeded on this patient with a pressure of 68 over 48. He stated the operation could have been postponed for a week or more.

The other factual matter in dispute concerns the administration of fluids through an intravenous drip (hereinafter referred to as an “i. v.”). On the one hand, Dr. Davies testified he ordered Mr. Young to increase the fluids after the administration of the spinal when it became apparent that the blood pressure had dropped, and instructed Mr. Young to run the fluids “wide open.” At some point in the procedure Dr. Davies noted the drip was not running full force and repeated his instructions to Mr. Young. Mr. Young told Dr. Davies he was worried about overloading the patient with fluids. Dr. Davies testified Mr. Young never complied fully with his request.

Mr. Young, on the other hand, testified Dr. Davies had misunderstood what he saw when he observed that the drip had slowed or stopped. Mr. Young explained that when he added medications through the i. v. or when he needed to change the i. v. bag he would turn off the i. v. momentarily, or manually “pinch” the tube to momentarily stop the flow. He felt this as the best way to allow the drug or the new fluid to reach the patient quickly. Mr. Young did admit the i. v. was not running wide open the whole time because he felt that to give the patient too much fluid would have been as harmful as giving the patient too little fluid.

Various other witnesses testified as to the facts. Delores Briggs, a licensed practical nurse, testified she assisted Mr. Young by attempting to get a blood pressure reading on the patient. Although she tried several times she could not hear anything with her instrument and therefore could not get a reading. She informed Mr. Young of this fact. Young attempted to get a reading himself and then called out various readings to Dr. Davies. Dr. Davies, apparently aware there was some trouble with the blood pressure, asked if anyone could give him a reading. Dr. Alwood Rice, the assisting intern on the case, testified Young announced several times he was having trouble getting a reading. In spite of this problem Mr. Young assured the surgeons the patient was “doing fine.” Dr. Rice did not recall ever hearing that the blood pressure was 68 over 48.

The crux of the matter is obviously one of credibility. Dr. Davies and Mr. Young offered differing versions of what happened in the operating room. As always, the trier of fact is granted a great deal of discretion in matters of credibility of witnesses. McMillan v. Travelers Ins. Co., 371 So.2d 1213 (La.App. 1st Cir. 1979). This is so because it is the trier of fact who is able to observe first hand the demeanor and character of the witnesses, while this court is limited to a review of the cold record. Although this is a review of a Civil Service Commission hearing rather than of a trial, we see no reason to deviate from the well established rule that unless the trier of fact was clearly wrong, we will not disturb his findings of fact, particularly as to credibility of the witnesses. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). After carefully examining this lengthy record we find no manifest error, therefore we agree with the Commission’s findings of fact as to charge 1.

Now that we have accepted the evidence as supporting charge 1 we must determine whether or not the grounds mentioned in that charge are sufficient grounds for dismissal. In other words, conceding Mr. Young failed to accurately report the blood pressure and adequately administer the fluids pursuant to the surgeon’s orders, was this a violation of his professional duty as a nurse anesthetist?

Dr. John Adriani, a medical doctor specializing in anesthesiology, was presented by the appellee as an expert in anesthesiology, nurse anesthesia, and pharmacology. He stated it was most certainly the nurse anesthetist’s duty to follow the surgeon’s orders as to the amount of fluids to be given. He further stated the nurse anesthetist is to keep the surgeon informed of the blood pressure of the patient. He noted that if the nurse does so inform the surgeon, his or her duty is then satisfied because it is the surgeon’s responsibility to take any necessary corrective actions.

Other experts called by the appellee were Faye Hornsby and Diana DeMars, both nurse anesthetists at Lallie Kemp Hospital. They testified as to the acceptable standards at the particular institution. Both testified that as nurse anesthetists they would not challenge or deviate from the surgeon’s orders concerning fluids. Both stated they would report immediately a sharp drop in blood pressure to the surgeon in charge.

We find it apparent from the above testimony that Mr. Young did violate his duties as a nurse anesthetist in acting or failing to act as he did. We therefore affirm the commission’s findings as to charge 1.

Charge 2 reads as follows:

“Failure to properly anesthetize patient identified in Chart # 24671, to a sufficient depth on or about the 7th day of August 1978, at Lallie Kemp Charity Hospital.”

Dr. Davies testified the patient, who was undergoing surgery on three hemorrhoids, thrashed about for fifteen minutes toward the end of the procedure. He state the movement was so severe the patient had to be physically restrained. He stated he was not able to satisfactorily complete the surgery, leaving the third hemorrhoid not completely attended to, and that the movement prolonged the surgery beyond the usual time period. He testified he gave verbal instructions to Mr. Young to increase the anesthesia. The anesthesia record showed that Ethrane was given first at concentrations of 2.1% and then lowered to 1.6%. The amount was not increased during the surgery.

The patient’s chart did not reflect any problems with the anesthetic. When asked why there was no written comment on the patient’s chart, Dr. Davies responded he felt it inappropriate to note problems of the nurse anesthetist on the patient’s chart, particularly since there were no adverse effects to the patient. He also mentioned he refrained from doing so because of possible “medico-legal implications.”

The anesthetic problem was noted in a postoperative diagnosis which reads as follows:

“The anesthesia became light during the closure of the skin incision over the hem-orrhoidal at the 3:00 position and patient had to be forceably (sic) restrained in order for the operation to be finished.”

The statement was signed by Dr. Rice, the intern assisting in the operation.

Mr. Young testified initially he remembered no specific details about the case. When questioned further he stated he did recall some movement but not nearly to the extent as described by Dr. Davies. He stated he would surely have remembered a patient “thrashing around” for fifteen minutes. His records indicated to him that the patient may have moved during the last three or four minutes of surgery.

Glenda McKean, the operating room supervisor and a registered nurse, testified she recalled the patient moving five or ten minutes before the end of the surgery. She stated the patient moved to a great extent, had to be restrained and his legs were removed from their raised position. She admitted it was not uncommon for patients to move, particularly at the end of an operation.

Dr. Rice testified the patient started kicking during the procedure and several people had to restrain him. He stated it was not unusual for a patient to “become light” for 15 to 30 seconds but it was unusual for the patient to remain light for several minutes, as occurred in this case. He stated the operation had to be interrupted for 2 to 3 minutes because of the excessive movement. He recalls Dr. Davies ordering the anesthetic to be increased and remembers the patient quieting down some but stated the patient never went “completely back under.”

Although we realize there are inconsistencies in the above testimonies concerning the duration of the movement, we find no error in the Commission’s finding that the patient did indeed move to an excessive extent, due to Mr. Young’s failure to properly anesthetize the patient. Fortunately, the patient seems to have suffered no permanent effects from this error, but Mr. Young’s actions are a breach of his professional duty nonetheless. Dr. Adriani testified that it was indeed poor anesthetic practice to allow a patient to become so light that he thrashed about, even if it occurred near the end of surgery. The condition could have been easily corrected by the administration of more Anectine (which paralyzes the muscles almost instantly) or more Ethrane (which creates a deeper level of anesthesia).

The two nurse anesthetists mentioned above, Faye Hornsby and Diana DeMars, testified again concerning the acceptable standards at Lallie Kemp Hospital. Both stated that movement indicated the anesthesia was not deep enough. Nurse De-Mars stated she would administer Anectine which would immediately paralyze the patient and then administer Ethrane, which would increase the level of anesthesia.

Mr. Young testified further that had he seen movement he would have increased the Anectine and then the Ethrane. He said his chart showed the operation was finished at 2:35 and the patient was not removed from the operating table until 2:45, which indicated the patient was in a quite deep anesthetic state at that point. He does not recall the patient having to be forcibly restrained.

Dr. William Max Yarbrough, an expert in anesthesiology, testified on Mr. Young’s behalf that there was nothing in the anesthesia record to indicate that the patient became light. He stated he always allowed his patients to lighten up as he closed the skin. He agreed that any movement severe enough to require physical restraint of the patient would not be acceptable, even if it occurred at the end of the surgery.

Considering the foregoing testimony concerning facts and the expert opinions, we again concur with the conclusions of the Commission. Accepting as fact that the patient did move to the extent that he required physical restraint, (although it is uncertain as to the length of the movement), we find Mr. Young violated his professional duties as a nurse anesthetist. Although all witnesses agreed slight movement toward the end of surgery was not uncommon, they also agreed extensive movement such as to require physical restraint was never acceptable, no matter in what stage of the surgery it occurred. Therefore we affirm the findings as to charge 2.

Charge 3 reads as follows:

“Failure to properly anesthetize patient identified in Chart # 99307, to a sufficient depth on or about the 18th day of August, 1978, at Lallie Kemp Charity Hospital.”

The evidence offered to support this charge consisted mainly of testimony by Dr. Davies. He stated there was much movement during the first sixty minutes of the operations so that the legs moved and the abdominal muscles contracted. He stated he pointed this out to Mr. Young and after about sixty minutes the movement subsided. There is no mention of the movement in the patient’s chart or in the postoperative note. No other witnesses were called to verify Dr. Davies’ version of the incident.

Mr. Young testified he was unable to recall any specifics concerning this operation.

We conclude the appointing authority failed to carry its burden of proof as to this charge. We note the surgeon accomplished three separate procedures during this surgery. He performed a cholecystec-tomy, vagotomy and a pyloroplasty. Dr. Yarbrough (who testified on behalf of Mr. Young) observed it was odd so much could be accomplished if the patient moved continually for sixty minutes. We are also impressed by the fact that there were no other witnesses to confirm Dr. Davies’ version, nor was there any written note of the difficulty anywhere in the patient’s records. Common sense dictates that if a patient had actually moved for sixty minutes this would be a significant intrusion upon the operation so as to impede the surgeon from adequately completing the procedure. At the very least, one would expect some note to be made of this problem.

Because we hold the appointing authority has failed to prove this charge, we reverse the Commission’s findings as to charge 3. We note, however, the reversal of this charge does not change the overall result of the hearing. We find charges 1 and 2 to be sufficiently serious so as to justify Mr. Young’s dismissal.

In addition to his complaints concerning the evidence supporting the substantive charges, the appellant raises several procedural issues. Concerning the expert witnesses the appellant urges two errors. First, he contends the Commission erred in allowing Dr. John Adriani to remain in the hearing room while other fact witnesses testified. Appellant insists this unduly prejudiced Dr. Adriani’s testimony. , The Commission noted there is no civil service rule governing this matter but looked to La. Code Civ. P. art. 1631 for guidance. That article states a civil tribunal may except any witness from a sequestration order if such action would be in the interest of justice. Comment (c) under the article states in pertinent part:

“Except in most unusual situations, persons called to testify as expert witnesses are not excluded from the courtroom during the trial of the case. Since they are not called to testify to the facts of the case, but only to give their expert opinions to hypothetical facts, there would seldom be either reason or necessity for excluding them.”

It has been observed by the Third Circuit that it is quite often impractical to sequester expert witnesses because to do so may require repetition of the various facts already placed into evidence by other witnesses. Hopkins v. Department of Highways, 350 So.2d 1271 (La.App. 3d Cir. 1977); 364 So.2d 616 (La.App. 3d Cir. 1978), appeal after remand on other issues. The court noted the exception is when an expert is also used as a fact witness and there is danger he will be influenced by other testimony. We have read the record carefully and conclude that since Dr. Adriani was called upon only to give his opinion, rather than to relate facts, there was no prejudice in allowing him to remain in the hearing room.

Appellant’s second argument concerning the expert witnesses is that the Commission erred in allowing nurse anesthetists DeMars and Hornsby to testify as experts in the field of nurse anesthesia. (Mr. Young’s counsel objected accordingly at trial.) We find no error here. It is true that these witnesses did not hold the highest degree available in their field (they both had bachelors of science degrees in nursing with specialized training in nurse anesthesia), but we feel this should go to the weight of their testimony rather than the admissibility. Their testimony was not offered as that of eminent authorities on nurse anesthesia, but was offered to show what professional standards were acceptable and used at Lallie Kemp hospital. For this purpose they were adequately qualified.

Appellant raises two issues concerning the language of the charges. He claims the charges were not sufficiently detailed, and the appointing authority enlarged and expanded upon the written charges at the hearing. We find no merit in the first argument. Charge 1 specifically states Mr. Young was accused of failure to properly monitor the vital signs, specifically the pulse and blood pressure. The patient was identified by chart number and the date and place of the alleged violation was given. This information was adequate to inform the appellant of the charges against him. Charge 2 is also adequately specific in that it informed Mr. Young he was being charged with failure to properly anesthetize a certain patient to a sufficient depth again giving the date and place of the alleged incident.

We also find no merit in the appellant’s contention that the Commission enlarged upon the charges at the hearing. Appellant seems to be arguing that there was an enlargement of the charges simply because the matter was developed in greater detail at the hearing than was stated in the dismissal letter. This situation is a natural occurrence and cannot be labeled as “enlarging the charges.” Certainly the appointing authority is not required to list every minute detail of the charge in the dismissal letter. The letter adequately informed Mr. Young of the offenses for which he was charged. The evidence at the hearing did nothing more than develop (rather than enlarge upon) these charges.

Finally, appellant contends he was unduly prejudiced in that he was not able to review the medical records until eight months had elapsed from the incidents and he was not provided with copies of the records until after the hearing. We note initially that civil service rule 13.33 states that pretrial discovery proceedings shall not be recognized by the Commission, therefore we are not dealing with the usual civil discovery procedure.

We find appellant was not unduly prejudiced by the above facts. We reach this conclusion because we do not decide this case based on appellant’s lack of memory as to details, i. e., we are not “holding it against” the appellant that he could not remember some of the charges with much detail. To the contrary, we have based our ultimate conclusion (that he failed to properly monitor one patient’s blood pressure and failed to properly anesthetize another patient) on the affirmative testimony of Dr. Davies, other witnesses, and the evidence as reflected in the medical records. We feel this is adequate proof of the charges. Certainly it would be prejudicial to Mr. Young if we were simply to say, “Since he cannot recall the details of the incident we will assume he acted as accused.” But this is not the case. Indeed, we have reversed the decision in charge 3 precisely because of this problem. There was very little affirmative evidence on this matter and Mr. Young was not able to offer any independent recall of the event. Under those circumstances it is only fair the charge be dismissed.

Therefore, we do not find merit in any of appellant’s arguments relating to procedural problems. We find the hearing was conducted with a great deal of propriety and all parties were given ample opportunity to tell their side of the story. We therefore affirm the decision of the Commission as to charges 1 and 2 and reverse the decision as to charge 3. The overall result of the hearing remains the same, and we quote from the opinion of the Commission.

“The Commission therefore concludes the conduct of the appellant as established by the appointing authority was grossly detrimental to the efficiency of the Lallie Kemp Charity Hospital and to the well-being of the patients whose care had been entrusted to that institution and accordingly, there was cause for the appellant’s separation.”

We affirm the denial of the appeal. Costs are to be paid by appellant.

AFFIRMED.

      . The opinion noted that charge 4 was defective for stating the wrong date, charge 7 was defective for vagueness, and charges 5 and 6 had been voluntarily dismissed by the appointing authority at the outset of the hearing.

      . In order to protect the confidentiality of the information the patients’ names were not used in these proceedings.

      . These medical terms refer respectively to the removal of the gall bladder, an interruption of the impulses carried by the vagus nerves and an operation which relieves gastric emptying by enlarging the pyloric canal.


author: COVINGTON, Judge.

text:
    Larry G. BROOK v. LOUISIANA STATE UNIVERSITY, BATON ROUGE CAMPUS.
    No. 14336.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.

      Charles L. Spencer, Hebert, Moss & Broussard, Baton Rouge, for appellant.
    William A. Norfolk, Taylor, Porter, Brooks & Phillipps, Baton Rouge, for appel-lee.
    Laura D. Holmes, Civil Service Legal Counsel, Dept, of Civil Service, Baton Rouge, for George Hamner, Director of the Department of State Civil Service.
    Before COVINGTON, COLE and WATKINS, JJ.
   COVINGTON, Judge.

Appellant, Larry G. Brook, is a police officer employed by appellee, the Louisiana State University Campus Security. For alleged acts showing poor judgment and lack of discretion, appellant was demoted, given a reduction in salary, and reassigned to different duties. From this disciplinary action, he appealed to the Civil Service Commission, which affirmed the action. It is from the Commission’s opinion that appellant now appeals.

The record reveals the following events which led to appellant’s demotion. Officer McClain, appellant’s colleague, and Mr. John K. Foley, of Rimes Wrecker Service, impounded an illegally parked car on the Louisiana State University campus in Baton Rouge, Louisiana, on August 31, 1979. Rimes Wrecker Service is under contract with the university. Mr. Foley and Officer McClain are regularly on campus every day, and both begin their workday at a Campus Security office.

When the owner of the impounded car retrieved it, a complaint was filed that the car had been damaged in towing. Two officers, Ed McWright and Harry Richardson, were dispatched to investigate the incident. After viewing the vehicle, they called appellant, their immediate supervisor, and told him of the incident and that Officer McClain had been involved. Although the testimony is conflicting as to who decided the point, appellant or the junior officers, the accident was initially classed as a “hit and run” because it had not been reported.

On September 4,1979, appellant discussed the matter with his supervisor, Captain Swain, who ordered an investigation of the event. In the afternoon of that same day, appellant observed Mr. Foley, the wrecker driver, after Mr. Foley’s regular working hours, proceeding eastbound on South Stadium Road at Louisiana State University. Appellant, traveling in the opposite direction, turned around and followed Mr. Foley. A stop was finally effected several miles from the university campus in heavy traffic near a congested intersection of the interstate highway system. Appellant claims that this was the first opportunity he had to make a convenient stop. This action was taken in spite of appellant’s knowledge that Mr. Foley was consistently on campus each day.

Appellant proceeded with his investigation of the “hit and run” accident, of which Mr. Foley denied all knowledge. Mr. Foley was asked to step back to the patrol car, which was parked behind the wrecker on the outside emergency lane of the interstate highway. At that time, Mr. Foley’s ten year old daughter was in the wrecker, unattended. Appellant gave Mr. Foley his “Miranda warning” and allowed the suspect to sit in the patrol car with the door open during interrogation.

Appellant used his patrol car radio to request information from Officer MeWright, the primary investigating officer. That call was overheard by a Campus Security detective unit which was in the vicinity. Shortly after the investigative stop began, this detective unit arrived at the scene of the stop; and the detectives were advised of the investigation. At that time, Mr. Foley’s daughter was out of the wrecker and had walked back to the patrol car. There, she was safeguarded by the several adults. After questioning, Mr. Foley was released with directions to report the next morning to Officer Christophe, one of the detectives.

The total time Mr. Foley had been detained was twenty-seven minutes, according to police radio logs, including the time spent in non-interrogation matters and in discussion with the detectives. The next morning, Mr. Foley and his employer filed complaints of “false arrest” with the university.

As a result of the above sequence of actions, appellant was notified that he was being demoted, that his salary was being cut, and that he was being assigned to different duties. His superiors deemed that his actions constituted violations of constitutional safeguards and violations of his jurisdictional authority, exhibited poor judgment for a line supervisor of appellant’s rank, and represented conduct totally unbecoming a police officer.

The appeal from the Commission’s af-firmance of that disciplinary action specifies three errors.

1. That the Commission violated Chapter XII, Section 19, Subsection (m) of the Civil Service Commission Rules by receiving and relying on evidence that enlarged the charges against appellant thereby prejudicing appellant’s defense;

2. That the opinion contains misstatements of fact of record and assumptions of fact not of record which prejudice appellant; and

3. That the Commission erred in finding that the appointing authority carried its burden of proof as required by Louisiana Civil Service Commission Rule 13.19(c) and in holding appellant’s demotion reasonable, based on the evidence presented.

Regarding specification of error one, appellant argues that evidence was improperly offered and introduced at the Commission hearing dealing with events that occurred on September 4, 1979. He contends that the notice of demotion specified that he was being disciplined because of events that happened on September 5, 1979 and that his defense was prejudiced by the introduction of evidence of the events of September 4.

It is evident from the record that the date error, the 5th being stated rather than the 4th, is directly attributable to the appellant’s own error. The “hit and run” happened on the 31st of August. He talked with his supervisor about the incident on the 4th of September and later pursued the wrecker driver on that same day. His report of the chase incident, which occurred on the 4th, was marked in his own handwriting as having occurred on the 5th of September. In any event, the notice of demotion gave ample specifics of the exact events in question to allow a defense in that they completely outlined the events of the 4th, although the date of September 5, 1979 had been adopted and used by error because of appellant’s own report. We see no harm done to appellant in this regard as he was fully aware of the charges, the background information, and the circumstances. We find this error to be attributable to appellant and completely harmless.

In specifications of error two and three, appellant complains that the opinion rendered by the Commission is factually incorrect and that it erred in finding that the appellee carried its burden of proof.

Our scope of review of the Commission’s decision extends to both the law and the facts. La.Const. Art. 10, § 12. The scope of review in such eases is the same as that in any other civil case. The findings of fact made by the Commission must be accorded much weight and will not be overturned in the absence of manifest error. Petrus v. Guin, 378 So.2d 1016 (La.App. 2 Cir. 1979); Brown v. L.H.H.R.A., 346 So.2d 758 (La.App. 1 Cir. 1977).

The Commission found that the appellant was not acting as an officer should act. Further, it found that the appointing authority was reasonable in disciplining appellant.

After a careful review of the record, we agree with the findings of the Commission. Appellant exceeded the bounds of reasonable action under the circumstances. He knew that he could find Mr. Foley on a daily basis at or near his own office. In spite of this knowledge, he pursued Mr. Foley and stopped him in a dangerous place and at a time when traffic was congested and stopping was hazardous. The actions for which he was disciplined were totally unnecessary and showed poor discretion and judgment, considering the minor nature of the initial accident and the fact that Mr. Foley was always readily available.

For the foregoing reasons, we affirm the opinion of the Civil Service Commission. Appellant is to pay all costs of this appeal.

AFFIRMED.


text:
    Donna F. BROUSSARD v. DEPARTMENT OF CORRECTIONS, LOUISIANA CORRECTIONAL AND INDUSTRIAL SCHOOL.
    No. 14337.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.

      James E. Spruel, Jr., Lake Charles, for appellant.
    Annette R. Seng, Staff Atty., Dept, of Justice, Atty. Gen.’s Office, Baton Rouge, for appellee.
    Laura Denson Holmes, Civil Service Legal Counsel, Dept, of Civil Service, Baton Rouge, for George Hamner, Director of the Department of Civil Service.
    Before COVINGTON, COLE and WATKINS, JJ.
   COLE, Judge.

The issue presented is whether or not the Civil Service Commission (hereinafter referred to as the Commission) acted properly in summarily dismissing the appeal of Donna F. Broussard from a decision to separate her from the position of Correctional Security Officer II.

Ms. Broussard had been employed by the Department of Corrections as a Correctional Officer at Louisiana Correctional and Industrial School since June 12, 1976. During this time she was absent from work for various illnesses, and beginning in mid-October 1979, was absent from work for approximately four weeks. When she returned to work on November 18, 1979, she was informed her sick leave had been exhausted as of November 13, 1979, and that she was suspended from her position. In a letter dated November 21, 1979, Ms. Brous-sard was informed by the Secretary of Corrections, C. Paul Phelps, she was being removed from her position under Civil Service Rule 12.10, such termination being effective November 30, 1979. The letter referred to prior reprimands for tardiness and to a warning given on August 7, 1979, concerning her poor attendance record. The letter confirmed the verbal suspension of November 18, 1979, but did not advise her of her right to appeal within thirty days.

On her own initiative Ms. Broussard appealed to the Commission in a letter received December 5, 1979. She did not deny her various absences or the exhaustion of her sick leave but provided explanations for the absences. She also alleged she had been wrongfully penalized by the deduction of 80 hours sick leave which she took when injured in a work-related accident in December 1978. She contended that had this time not been deducted she would not have exhausted her sick leave. She asked the commission to “look into the matter” for her.

The Department of Corrections filed a motion for summary disposition of the appeal as authorized by Rule 13.14 (a)(2), stating Ms. Broussard had admitted the charges which caused the termination and, therefore, there were no factual grounds of dispute for the Commission to hear. Ms. Broussard (through her counsel) filed a motion in opposition to the summary disposition. A hearing was held before the Commission on June 4,1980, and the motion for dismissal was granted. Ms. Broussard has appealed to this court.

We agree with the appointing authority that Ms. Broussard did not state any legal grounds for relief in her letter of appeal. She admitted to having been absent and that her sick leave was exhausted. Although she contended she had been wrongfully charged with 80 hours sick leave in December 1978, we note this claim would have prescribed 30 days after she received written notification of such action or 30 days from when she learned of such action. Rule 13.12 (a) (1) and (2).

Appellant contends the Commission erred in granting the motion for summary disposition in that she had several legal grounds on which to base her appeal. First, she argues her dismissal was invalid because she was not given the proper notice of her right to appeal, as required by Rule 12.3 (a) (2). Secondly, she argues her dismissal was invalid because she was not given proper reasons for her suspension, as required by 12.2 (a). Thirdly, she contends she was not given the proper notification of her suspension because she was so informed only when she reported back to work, citing Dickson v. Department of Highways, 234 La. 1082, 102 So.2d 464 (1958), rehearing denied 1958. Finally, she contends the dismissal was improper because there is no evidence in the record showing that her replacement was essential to the operation of the department, citing Rule 12.10 and Burton v. Department of Highways, 135 So.2d 588 (La. App. 1st Cir. 1961), cert. denied 1962.

Concerning the first issue, our Supreme Court recently considered a similar matter in Sanders v. Dept. of Health & Human Resources, 388 So.2d 768 (La.1980). In Sanders, the appellant contended her dismissal had been invalid because of the appointing authority’s failure to comply with Rule 12.3 (a) (3), which requires the appointing authority to furnish the Director a copy of the written reasons for dismissal. The court decided the Rule was directory rather than mandatory and concluded there had been no prejudice to the appellant because of the violation of the Rule. The court limited its holding to Rule 12.3 (a)(3) and stated that each rule must be classified separately after considering its importance to the Civil Service scheme and after considering any prejudice to the employee caused by the violation of the rule.

We admit the notification of the right to appeal is important to the Civil Service scheme. But under the facts of this case we hold the dismissal was valid in spite of the violation, because Ms. Broussard suffered no prejudice. Although not officially informed of her right to appeal she did timely file an appeal (in the form of a letter) and her appeal complied with the requirements of Chapter 13. Although the letter did not contain the various grounds for an appeal she is arguing here, we can consider those grounds for the first time in this court. Since Ms. Broussard was not prejudiced by the violation of Rule 12.3 we do not find the summary dismissal invalid for that reason.

Appellant’s second argument is that she was not properly informed of the reasons for her suspension as required by Rule 12.2 (a). We quote from the Rule as follows:

“An employee who is suspended without pay shall be so notified by his appointing authority on or before the effective date of the suspension. Each permanent or probationary employee so suspended shall be furnished detailed reasons therefore in writing within fifteen calendar days following the effective date of the suspension. A copy of such detailed reasons shall be furnished the Director.”

An examination of the letter written by the Secretary of Corrections, dated November 21, 1979, shows appellant’s argument to be without merit. The appointing authority complied with the above rule by informing Ms. Broussard of her suspension on the effective date of the suspension which was November 18,1979, the date she returned to work. The letter was written within the fifteen day period and provides adequately the reasons for her termination. The last line of the letter reads, “This will also confirm your verbal suspension of November 18, 1979.” We find it apparent that this reference to the verbal suspension indicated the reasons for the suspension were the same reasons as those given for the termination. Appellant is asking for a hyper-technical interpretation of the rule by asking us to say there were no reasons given for the suspension. A common sense reading of the letter leaves no doubt as to the reasons for the termination or for the suspension.

Appellant’s third argument is that she was not discharged properly because she was not informed of her suspension until she returned to work, ready and able to perform her duties. The above quoted statute makes it clear it is legitimate for the appointing authority to inform the employee of the suspension on the effective date of such suspension, which was done in this case. Appellant cites Dickson, supra, for the proposition that it is invalid to remove an employee from his or her position after the employee reports back to work. The facts of Dickson make it easily distinguishable from the present case. There the employee had been injured in a work-related accident and had been disabled and drawing workmen’s compensation for approximately a year and a half. When he reported back to work he was not allowed to resume his position but was given no reason for the appointing authority’s refusal until five months later. Certainly under the facts of Dickson the court was justified in saying that the termination must take place during the period of disability and that notice must be given in conformity with the law. But in the present case the verbal suspension was presented the day Ms. Broussard returned to work and the written reasons timely followed. Therefore, there is no merit to the argument that the suspension was not appropriately executed.

■ Finally, appellant argues the dismissal was in violation of Rule 12.10 (a) which requires the appointing authority to certify to the Director that the interests of the service require that the duties of the position be carried on without further interruption. She cites Burton v. Department of Highways, supra. The facts of Burton are quite different from the facts of the present case because in Burton a temporary employee had been hired to perform Mr. Burton’s duties while he was not able to work. The court found no evidence in the record showing that it was necessary to replace Mr. Burton with another permanent employee rather than allowing the temporary employee to continue until Mr. Burton was able to return. Certainly, in that situation it becomes crucial that the appointing authority show the termination is absolutely necessary.

However, in the present case there is no evidence of a temporary employee being hired to perform Ms. Broussard’s duties, therefore, we must assume her position was left vacant while she was out and her duties were left unperformed. The institution involved is a correctional school and Ms. Broussard served as a correctional officer. The facts speak for themselves. The continued and prolonged absence of a correctional officer at a correctional school will undoubtedly severely interfere with the smooth operation of the school. We find this fact to be self evident and in this case no additional evidence is required. Again, because there was no prejudice to the employee, we refuse to say the violation of this rule rendered her dismissal invalid. Sanders, supra. See Bradford v. Department of Hospitals, 255 La. 888, 233 So.2d 553 (1970).

For these reasons, the decision of the Commission is affirmed. Appellant is to pay all costs.

AFFIRMED.

      . Rule 12.10 reads as follows:
      “(a) An employee absent from duty because of a disability which prevents performance of the usual duties and responsibilities of his or her position and who has exhausted all sick leave, may be removed by the appointing authority upon certification to the Director by such appointing authority that the interests of the service require that the duties of the position be carried on without further interruption. Such removal shall not disqualify the former employee for non-competitive reemployment as provided in Rule 8.18.
      (b) Notice of such action shall be given pursuant to the provisions of Rule 12.3.”

      . This rule allows any interested party to file a motion for summary disposition on the grounds that the appellant has no legal right to appeal.

      . Rule 13.12 provides in part as follows:
      “(a) No appeal shall be effective unless a written notice complying with the requirements of Rule 13.11 is either (i) received in the office of the Director of the State Department of Civil Service at Baton Rouge, Louisiana, or (ii) is addressed to the Director of the State Department of Civil Service at Baton Rouge, Louisiana, with proper postage affixed, and is dated by the United States Post Office.
      1. Within thirty (30) calendar days after the date on which appellant received written notice of the action on which the appeal is based when written notice before or after the action is required by these Rules: or
      2. Within thirty (30) calendar days after the date when appellant learned or was aware that the action complained of had occurred when no written notice is required by these Rules, or, if required, was given tardily or not at all.”


author: WATKINS, Judge.

text:
    FLUKER COMMUNITY CHURCH v. F. B. HITCHENS, et al.
    No. 14340.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.
    Rehearing Denied Nov. 23, 1981.

      Lawrence Blake Jones, New Orleans, for plaintiff.
    Nelson Taylor, Baton Rouge, and Gilbert E. Stampley, New Orleans, for defendant, African Methodist Episcopal Church.
    Before COVINGTON, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is a suit for a permanent injunction to prevent the building of a church on land in Fluker, Tangipahoa Parish, which plaintiff, Fluker Community Church, an unincorporated association, contends that it owns. Made defendants are the African Methodist Episcopal Church (A.M.E.), a religious corporation organized under the laws of Pennsylvania, the Rev. Simon Hookfin, the local A.M.E. minister and B. F. Hitchens, the Presiding Elder of A.M.E., who resides in Orleans Parish. The trial on the granting of a permanent injunction was treated by the trial judge and all parties as a trial on a petitory action, involving title to two adjoining tracts of property in Fluker, which we will call for purposes of this decision Tract I and Tract II, respectively. The trial court found title to both Tracts was in Plaintiff, and granted the permanent injunction.

Tract I was donated by Fluker Farms, Inc. to Board of Trustees, Fluker Colored Community Church by act of donation dated October 10, 1952. The act of donation contained the following language, “[t]his donation is made to the Board of Trustees of the church now or to be hereafter located upon the property herein donated, regardless of its organizational affiliations, although at present same is affiliated with the African Methodist Episcopal Church. . . ."

Tract II was acquired by “Fluker Chapel A.M.E. Church” from Fluker Farms, Inc. by “credit deed” dated October 1, 1969.

The church building of the church congregation has stood on Tract I since shortly before or shortly after the execution of the 1952 act of donation.

The congregation was formed around 1900 by the black community in Fluker. Although it originally had no affiliation with any sect or denomination, it soon began receiving its ministers from A.M.E. Since it first received ministers, it has never received a minister from any other denomination. The congregation paid assessments to A.M.E. on a regular basis, and it styled itself both “Fluker Community Church” and “Fluker Chapel A.M.E. Church”, the names being used interchangeably. Its members attended meetings of the representatives of the A.M.E. Church.

Some years after 1969 the local members became dissatisfied with the A.M.E.’s failure to maintain and repair the local building and property. After the local church had submitted several complaints to A.M.E. through its Quarterly Conference and the •Bishop, a meeting was called to consider severing all ties with A.M.E. Notice of the meeting was given by posting and distributing handbills in the community. The handbills stated that the “Purpose of the meeting is to decide whether this church is to remain in the A.M.E. Association or whether it will withdraw from same and become an independent church.” The handbills further stated that voting at the meeting would be “limited to those persons domiciled within the Fluker Community geographical area and being 12 years of age or older.”

The meeting was held on September 23, 1979. Voting took place through physically standing and voting for or against withdrawing from A.M.E. and signing sheets of paper voting for or against that withdrawal. A majority in the standing vote voted to withdraw form A.M.E. On the sheets of paper, 61 signed in favor of withdrawing from A.M.E. and 3 voted against withdrawing.

The local congregation sent a letter to A.M.E. notifying it of its intention to be independent. The few members remaining loyal to A.M.E. continued to meet and receive the pastor appointed by A.M.E. In February of 1980, A.M.E. began the construction of the church on Tract II which precipitated the filing of the present suit.

Under the First Amendment to the United States Constitution granting religious freedom, we cannot decide in favor of one doctrine, belief, or ritual as opposed to another. Jones v. Wolf, 443 U.S. 595, 99 S.Ct. 3020, 61 L.Ed.2d 775 (1979). However, the present dispute involves solely administrative control, and does not involve doctrine, belief, or ritual, so far as we can determine from the record. In any event, the case will be decided solely on the question of title and administrative control, and we will abide by the Constitutional admonition not to concern ourselves with doctrine, faith, belief, ritual, or liturgy.

Under the most recent Louisiana landmark case on the question of control of a religious congregation, Katz v. Singerman, 127 So.2d 515, 241 La. 103 (1961), the rule is set forth, based on prior decisions of Louisiana courts, that in a religious denomination having independent religious congregation, the will of the majority shall control, while in a religious denomination having a central or hierarchical structure, the local congregation, regardless of the will of the local majority, shall be bound by the rules of the central hierarchical structure. So long as the courts do not enforce religious ritual or belief, the Katz analysis, which is also the analysis adopted in many other states, is still the law of this state, and we will apply this analysis to the facts presented by this case.

The A.M.E. is a hierarchical religious organization, having bishops and a central national, or international, structure. Its local congregations are not independent religious bodies, but are subject to rules of the general A.M.E., which are embodied in a set of documents collectively bound in a single volume known as The Book of Discipline. The Book of Discipline contains no provision permitting withdrawal of a local congregation from the central A.M.E., and we therefore assume that such withdrawal is not permitted under the rules of the A.M.E. In any event, the record is replete with implications that such a withdrawal is forbidden by A.M.E.

The local congregation attempted to withdraw from A.M.E. The local congregation, it is true, was originally independent. However, soon after its formation around 1900 it began to receive ministers from A.M.E., and has never received ministers from any other denomination. It styled itself alternately and interchangeably “Fluker Community Church” and “Fluker Chapel A.M.E. Church”. It paid assessments to A.M.E. It sent delegates to A.M.E. meetings. It is thus clear that it was an A.M.E. congregation. Indeed, the handbill and vote were couched in terms of “withdrawing” from A.M.E. It is thus apparent that a prior affiliation was admitted by the proponents of disaffiliation themselves.

The act of sale (“credit deed”) for Tract II was to “Fluker Chapel A.M.E. Church”. The terms of the deed itself thus indicate an affiliation with A.M.E. A.M.E. is a hierarchical religious body. As the act of sale indicates a desire on the part of the vendees that the congregation be and remain affiliated with A.M.E., and as the hierarchical organization, the A.M.E., did not permit withdrawal, the subsequent attempted withdrawal could not vest title in the withdrawing majority. The will of the hierarchical organization prevails under the Katz dichotomy regardless of the will of the congregational majority, where the congregations are not independent. The portion of the congregation remaining loyal to A.M.E., however small in number and however they may style themselves, must have title to Tract II. Thus, the trial court erred in enjoining the defendants from building a new church on Tract II, and in finding that plaintiffs owned Tract II.

Tract I presents a different situation. The act of donation for Tract I provides that Fluker Community Church will own that tract “regardless of its organizational affiliations, although at present same is affiliated with the African Methodist Episcopal Church. . . . ” Thus, by the terms of title itself, the control of A.M.E. is negated. Under the Katz dichotomy, either the majority of the local congregation prevails or the will of the hierarchical organization controls. The act of donation forbids us to consider the will of A.M.E., the hierarchical organization, as the local congregation is to own the property under terms of the donation “regardless of its organizational affiliations”. We cannot violate the wishes of the donor corporation by diverting the title to Tract I to the minority faction loyal to A.M.E., when the majority voted in favor of withdrawal. It is true that the proceedings were extremely loose. The local church had no written articles of incorporation, constitution, by-laws, or rules. Everything was done verbally. The handbill, which is one of the few documents in writing, is extremely broad in its rules concerning voting. We especially note that The Book of Discipline promulgated by A.M.E. limits voting to those of over age 18, while those of age 12 or over were permitted to vote by the handbill. However, the overwhelming nature of the vote in favor of withdrawing overcomes all these absences of formality. The vote was 61 to 3. Of those over age 18 who entered their ages and signatures on the signature sheet, 35 voted to withdraw and 2 voted against withdrawing. We must, therefore, assume that the majority of those who voted regularly voted in favor of withdrawing from A.M.E. Indeed, the testimony on behalf of defendants appears to admit that the overwhelming majority favored severing all ties with A.M.E.

Under the Katz dichotomy, either the will of the majority or the will of the central organization must prevail. The deed prevents us from binding the title of Tract I by consideration of affiliation with A.M.E. The will of the majority, whether or not it is affiliated with A.M.E. determines what becomes of title to Tract I. The majority voted to disaffiliate themselves with A.M.E. As the majority is no longer affiliated with A.M.E., and as plaintiff organization, which styles itself “Fluker Community Church”, is composed of that majority, plaintiff owns Tract I.

We, therefore, amend the judgment of the trial court so that judgment is now rendered as follows:

(1) Title to Tract I, which has the following property description, is awarded to plaintiff:

“Two (2) acres of land situated in Headright 55, T 3 S R 7 E., more fully described as follows, to-wit:
Commence at a point 6.78 chains East of the Southwest corner of Section 4, T 3 S R 7 E., being Clara Ruffin’s Southeast corner, thence East 3.30 chains to school lot, thence North 0 degrees 15 minutes East 6.06 chains, thence North 89 degrees 42 minutes West 3.30 chains, thence South 0 degrees 15 minutes East 6.08 chains to South line of Section 55, and the point of beginning. Being the same property designated as Church Lot on plat of survey of O. C. Hollister, registered surveyor, dated April 19, 1951, being subdivision of Sections 4 and 5 and Headright 55, T 3 S R 7 E., which plat is recorded herewith.”

(2) Title to Tract II, which has the following property description, is awarded to that faction of the local congregation loyal to A.M.E.:

“3.67 acres of land more or less situated in Parish of Tangipahoa, State of Louisiana, commencing at a point on the So. line of Sec. 55, T 3 S R 7 E at 500 feet E. of the S. W. corner of said section, thence North 0 ° 15 min. E. 400 feet, thence E. 400 feet, thence S. 0 0 15 min. W. along the center line of old Hwy., 400 feet to the So. line of said section 55, thence W. 400 feet to the point of beginning. Less and except 30 feet by 50 feet deeded to Fluker Chapel Water Works, Inc., by Fluker Farms, Inc. which deed with the description and measurements of the 30 X 50 feet is recorded in conveyance records of Tangipahoa Parish, Louisiana, acquired in COB 190, page 81.”

(3) The permanent injunction sought and granted is hereby vacated and denied.

All costs shall be borne equally by the parties.

AMENDED AND AFFIRMED.


text:
    Michael J. JEFFERS v. AMOCO PRODUCTION COMPANY, INC., et al. Sally Ann BOURQUE v. AMOCO PRODUCTION COMPANY, INC., et al. Cindy Farmer LEBLANC v. AMOCO PRODUCTION COMPANY, INC., et al. Barbara M. QUELLE v. AMOCO PRODUCTION COMPANY, INC., et al. Gayle LEWIS v. POWER RIG DRILLING COMPANY, et al.
    Nos. 14344-14348.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.

      Clement Story, III, Lafayette, for plaintiff-appellant Michael J. Jeffers.
    James E. Diaz, Herman E. Garner, Lafayette, for defendant-appellee Cameron Iron Works, Inc.
    John R. Tharp, Baton Rouge, for defendant-appellant Amoco Production Co.
    Edward J. Brandao, New Orleans, for defendant-appellee Hydril Co., Inc.
    Jesse R. Adams, Jr., Mark B. Meyers, New Orleans, for defendant-appellee International Mud Co. (IMCO), Emsco, Inc., a subsidiary of Imco, & Halliburton Co.
    James J. Davidson, Edward 0. Taulbee, Lafayette, for intervenor/defendant-appel-lant Power Rig Drilling.
    John J. McCann, New Orleans, for defendant-appellee Crowley Consultant Corp.
    David W. Robinson, Warren E. Byrd, II, Paul H. Dué, Steve M. Marks, Baton Rouge, for plaintiff-appellee Sally Ann Bourque.
    Kenneth W. DeJean, Lafayette, for plaintiff-appellee Cindy Farmer Leblanc, Indiv., & as Admin, and/or Natural Tutrix of her Minor Children, Heather Monique Leblanc & Edgar Leblanc, Jr.
    Larry A. Roach, Lake Charles, for plaintiff-appellant Barbara M. Quelle, Indiv., & as Administrator and/or Natural Tutrix of her Minor Child, Bradley D. Quelle & Don H. Quelle, Ind.
    Michael J. Samanie, Robert L. Barrios, Houma, for plaintiff-appellant Gayle Lewis.
    Before COVINGTON, COLE and WATKINS, JJ.
   WATKINS, Judge.

These are consolidated cases brought by victims and survivors of deceased victims which arise from an oil rig blow-out in East Baton Rouge Parish. Made co-defendants are Amoco Production Company, Inc., Hy-dril Company, Halliburton Company, Crowley Consultants, International Mud Company, Emsco, Cameron Iron Works, Inc., and Power Rig Drilling Company. Cameron Iron Works applied for summary judgment dismissing it as a party defendant. Summary judgment was granted as sought. Plaintiffs and defendants Amoco and Power Rig appealed. Amoco and Power Rig later moved in this court to dismiss their appeal, and the motion was granted. Accordingly, we are only considering the appeal of the plaintiffs. Only one plaintiff, Barbara M. Quelle, has filed a brief.

The fire or blow-out occurred at approximately 8:30 a. m. on July 7, 1979. All of the injuries sued upon resulted from this fire. Approximately an hour and a half later, an explosion occurred which totally destroyed the rig. No further personal injuries were sustained in the second fire or explosion.

Cameron’s motion for summary judgment was supported by a deposition of Matthews Cormier, who was drilling foreman for Amoco. The well was being drilled by a drilling contractor, Power Rig, for Amoco. Plaintiffs’ basis for possible liability on the part of Cameron was that Cameron manufactured a blow-out preventer which had been installed on the well but which failed to function, thus contributing to the flash fire and injuries sued upon.

Cormier’s clear and unequivocal testimony is that Cameron’s blow-out preventer was never activated. The Kelly was at that time in the hole, according to Cormier’s testimony, and the Cameron blow-out pre-venter could not be activated when the Kelly was in the hole.

Plaintiff Quelle (whose brief as stated is the only plaintiff’s brief filed) contends that counsel for plaintiffs attempted to introduce the depositions of Emile Durr, Jr. and Stephen Barnard, which would have shown that the Kelly was not in the hole. Hence, the inference is that, if standard oil field procedure had been followed, the Cameron blow-out preventer would have been activated at the time of the flash fire. The trial court, according to Quelle’s brief, improperly refused to admit the depositions of Durr and Barnard.

After taking the matter under advisement, the trial court granted summary judgment, as we have indicated.

If the blow-out preventer had not been activated before the flash fire occurred, as Cormier’s testimony unequivocally states, clearly Cameron could not be liable, as the sole basis of contended liability on the part of Cameron was the alleged malfunction of the Cameron blow-out pre-venter. Although plaintiff Quelle contends the depositions of Durr and Barnard were improperly ruled inadmissible, plaintiff did not make an effort to proffer the excluded depositions. There is thus no genuine issue as to a material fact, as the sole testimony available in the record before this court indicates that the Cameron blow-out pre-venter was not activated before the flash fire occurred.

We are not favored with a transcript of the hearing on motion for summary judgment containing the argument of counsel in which the two depositions were held inadmissible. Moreover, the record presented before us does not contain these depositions as a proffer. A proffer could have been made under LSA-C.C.P. art. 1636. No proffer was apparently made. It is incumbent upon counsel who contends his evidence was improperly excluded to make a proffer (an offer of proof), and if he fails to do so, he cannot contend such exclusion was error. Greene v. Wright, 365 So.2d 551 (La.App. 1st Cir.1978).

Thus, under the record before us, summary judgment was proper.

Hence, the judgment of the trial court is affirmed, at appellants’ cost.

AFFIRMED.


text:
    DUB JOHNSON PAVING CONTRACTOR, INC. v. CUSTOM PIPE COATING OF LOUISIANA, INC.
    No. 14351.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.
    Warren L. Mengis, Baton Rouge, for plaintiff-appellee.
    Joseph W. Cole, Jr., Port Allen, for defendant-appellant.
    Before COVINGTON, COLE and WATKINS, JJ.
   WATKINS, Judge.

The issue presented in this suit on a contract is whether or not the trial court erred in the quantum awarded plaintiff-appellee. Because we find no manifest error in the trial court’s action, we affirm.

Dub Johnson Paving Contractor, Inc. (herein referred to as Johnson Paving) entered into a contract on June 5, 1978, with Custom Pipe Coating of Louisiana, Inc. (Custom Pipe) whereby Johnson Paving was to prepare a site for Custom Pipe in Addis, Louisiana. Johnson Paving was to grade, drain and pave various portions of the site in preparation for another contractor to construct a pipe fabrication plant. The contract set forth two phases in which the work was to be done, phase A and phase B. It is only phase B that concerns us here.

The total amount due Johnson Paving under phase B was $169,130.77. On November 13, 1978, Edward E. Evans & Associates, Inc., the engineering firm hired by Custom Pipe, issued a certificate which approved the final payment less the ten percent retainage, indicating all work had been done, approved and payment recommended. Problems developed between the two parties and Custom Pipe informed Johnson Paving that certain areas of the site were retaining water and were causing the heavy equipment to become bogged down.

On January 30, 1979, Johnson Paving filed in the mortgage records of West Baton Rouge Parish a lien affidavit stating the affiant had completed all the work called for by the contract but that the re-tainage (on both phases) had not yet been paid. The retainage for phase A was later paid, and Johnson Paving filed suit for the $16,913.08 retainage due on phase B.

Custom Pipe answered the suit and reconvened, contending Johnson Paving’s work had been defective and incomplete and had caused an added expense of $105,-077.89. Custom Pipe prayed for judgment in the amount of $88,164.81, which is the difference between the amount it allegedly expended and the amount claimed by Johnson Paving.

After a lengthy trial the court rendered judgment on the main demand in favor of Johnson Paving and against Custom Pipe, in the amount of $14,413.08. The court found Johnson Paving had “substantially completed” the project but accepted testimony from an expert witness, Mr. John Graves, (a civil engineer) that it would cost Custom Pipe approximately $2,500.00 to complete the small amount of work left unfinished by Johnson Paving. The court therefore deducted this amount from the retainage due. On the reconventional demand the court rendered judgment against plaintiff-in-reconvention Custom Pipe and in favor of defendant-in-reconvention Johnson Paving, finding Custom Pipe had failed to put Johnson Paving in default and was therefore not entitled to recover.

Custom Pipe filed an appeal and Johnson Paving answered. Because the appellant failed to appear or file a brief prior to the time the ease was submitted, this court dismissed Custom Pipe’s appeal in accordance with Rule VII, Section 5(b) of the Uniform Rules of the Courts of Appeal. 403 So.2d 127. Johnson Paving’s rights were not affected by the dismissal. Therefore, we consider here only that single issue raised by Johnson Paving in their answer to the appeal: the issue of quantum.

The area of controversy in this matter is the northeast corner of the site, an area between the main railroad track and a railroad spur. The plans show this area was to be graded to allow proper drainage. Mr. Wilbur Johnson and his son, Wilbur Johnson, Jr., both testified they were instructed by Mike Bridges (an engineer associated with the engineering firm hired by Custom Pipe) not to grade this particular area because any necessary work would be done by those responsible for laying the railroad spur. Therefore, they allege they did all of the work required of them under the contract and should be paid the full ten percent retainage. John Graves testified that the grading of this area was never deleted from the plans and therefore Johnson Paving was responsible for completing the work as specified by the plans. Both Mr. Johnson and his son admitted there was no written order authorizing them to ignore the grading of this area. '

We agree with the trial court that although there is conflicting testimony as to what was to be done to this portion of the site, there is no written evidence showing Johnson Paving was relieved of their duty to grade this area. Therefore, it is equitable that appellee be penalized $2,500.00, the amount required to finish the work they left undone. As an appellate court we must give great weight to the conclusions of the trier of fact and we will not disturb this reasonable evaluation of credibility and reasonable inference of fact, even though other evaluations and inferences are as reasonable. Aleman v. Lionel F. Favret Co., Inc., 349 So.2d 262 (La.1977), rehearing denied 1977.

For the foregoing reasons, the judgment of the trial court is affirmed. Appellant Custom Pipe is to pay all costs.

AFFIRMED.

      . Since Custom Pipe appealed first they are referred to as the appellant and Johnson Paving as the appellee.

      . The record shows an attempt was made to subpoena Mr. Bridges but was unsuccessful, therefore he did not testify.


author: LEAR, Judge.

text:
    Jane Pierce D’ARMOND v. Stanley Adrian D’ARMOND.
    No. 14353.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.
    Henry D. Salassi, Jr., Baton Rouge, for plaintiff-appellant Jane Pierce D’Armond (now Bradford).
    James D. Thomas, II, Baton Rouge, for defendant-appellee Stanley Adrian D’Ar-mond.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   LEAR, Judge.

This suit was brought by Stanley Adrian D’Armond, defendant and plaintiff-in-rule, as a rule to set specific visitation. In a prior judgment of divorce, Jane Pierce D’Armond (now Bradford), plaintiff and defendant-in-rule, had been awarded the permanent legal custody of the parties’ minor children, Stanley Adrian D’Armond III and Jennifer D’Armond, subject to reasonable visitation rights on the part of Mr. D’Ar-mond. For some time thereafter, by mutual agreement of the parties, Mr. D’Armond enjoyed liberal and extensive visitation with the minor children, whose present ages are thirteen and ten respectively. An agreed upon schedule of visitation was reduced to writing in April, 1980, in a letter sent on behalf of Mrs. Bradford to Mr. D’Armond’s attorney, and Mr. D’Armond exercised visitation according to this schedule for approximately six months. In October, 1980, however, certain problems developed between Mr. D’Armond and Mrs. Bradford concerning visitation, at which time Mr. D’Armond filed this rule to set specific visitation. The visitation rule was heard on November 13, 1980, and judgment was rendered in favor of Mr. D’Armond granting him certain visitation. Thereafter, Mrs. Bradford filed a motion for a new trial alleging that the court’s judgment was contrary to the law and the evidence. Mrs. Bradford’s motion for a new trial was heard on December 4, 1980, at which time the court denied the motion for a new trial, except to slightly amend the judgment previously rendered on November 13, 1980. Mrs. Bradford appeals the amended judgment; however, only provisions numbers 1, 2 and 3 of the judgment hereinafter reproduced are put at issue in her brief to this court.

As amended, the judgment granting Mr. D’Armond specific visitation, from which Mrs. Bradford has appealed provides as follows:

1. Week-end visitation from Friday at 3:00 p.m. to Sunday at 8:00 a.m. beginning on the first Friday of each month and on the third Friday of each month;
2. On the Saturday that falls between the above week-ends from 9:00 a.m. until 6:00 p.m.;
3. Visitation on each Wednesday from 3:00 p.m. until 7:00 p.m.;
4. Visitation on the following major holidays:
Labor Day, Halloween, Memorial Day, Father’s Day, New Year’s Eve and New Year’s Day, from 6:00 p.m. to 9:00 p.m. on school days and from 9:00 a.m. to 9:00 p.m. on days that school is closed.
5. Christmas visitation from Christmas Day, December 25, at 3:00 p.m. through 3:00 p.m. on the day before school resumes;
6. Summer visitation — two weeks either consecutively or separately provided plaintiff-in-rule [Mr. D’Armond] notifies defendant-in-rule of the dates of summer visitation on or before April 15 of each year;
7. Birthday visitation — from 6:00 p.m. through 9:00 p.m. Monday through Thursday. Should the child’s birthday occur on Friday through Sunday, either the day before or the day after the birthday from 9:00 a.m. until 6:00 p.m.;
8. Such other visitation as the parties may agree upon amicably.

The principles governing visitation by a noncustodial parent with his minor children are well stated in the case of Pate v. Pate, 348 So.2d 1338 (La.App. 3rd Cir., 1977), in which the court stated that:

“When the parents of the minor child are separated or divorced and the custody of the child has been awarded to one parent, the other has the right to see and visit with the child at reasonable times, unless that right has been forfeited by the parent who claims it, or unless the exercise of that privilege would injuriously affect the child. The paramount consideration in determining the specific visitation privileges which should be granted in any case is the welfare of the child. Generally, the best interest of the child is served by placing him in the custody of one parent and not alternatively in the custody of each. The award of visitation privileges, therefore, should not be extended to the point where it becomes divided custody of or a division of authority over the child. Much discretion is vested in the trial court in determining the times when and the conditions under which a parent may have access to his child, and the decision of the trial judge as to the visitation privileges will not be disturbed unless there has been an abuse of discretion. [Citations omitted].”

Under the parties’ prior agreement, Mr. D’Armond had exercised visitation with the children on the second and fourth weekends from Friday at 5:00 p.m. to Sunday at 6:00 p.m. Mrs. Bradford testified that the Sunday aspect of this arrangement had become a problem, in that it was causing some disruption of the children’s church activities. From her testimony, it appears that her main concern was to eliminate this Sunday visitation. The trial court did eliminate this Sunday visitation, however, in an effort to compensate both the children and Mr. D’Armond for the lost Sunday visitations, it granted an additional Saturday visitation and a weekly Wednesday afternoon visitation.

There is no evidence in the record suggesting that Mr. D’Armond’s liberal visitation has caused or would cause the children any emotional problems or was in any way detrimental to them, except for some slight disruption of their Sunday schedule. On the contrary, we find that the record indicates that Mr. A’Armond is a thoughtful, concerned and dedicated father to his minor children, and that the schedule of visitation was, in fact, beneficial to the children.

The amount of visitation granted by the present judgment is not substantially greater than that enjoyed by Mr. D’Armond under the previous agreement of the parties. There is no indication in the record that the previous amount of visitation was of such duration or frequency as to be detrimental to the children, nor do we find that the duration or frequency of visitation presently ordered would be detrimental to the children.

Further, we find that the schedule of visitation ordered by the trial court is reasonable under the circumstances and does not amount to a split or divided custody. The trial judge, having the parties testify before him, and in fact examining the parties to a limited extent himself, and having the best interests and welfare of the children in mind, has determined the present schedule of visitation. We find no error in the proceedings below and no evidence in the record which would support a reversal of the trial court.

For the above reasons, the judgment of the trial court is hereby affirmed. Defendant in rule-appellant, Jane Pierce D’Ar-mond Bradford, to pay all costs.

AFFIRMED.


author: CHIASSON, Judge.

text:
    Peggy Ann MITCHELL v. DAIRYLAND INSURANCE COMPANY, et al.
    No. 14354.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.

      Roy Maughan, Maughan, Atkinson & Martin, Ltd., Baton Rouge, for plaintiff.
    L. Albert Forrest, Roy & Forrest, New Iberia, for defendants.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   CHIASSON, Judge.

Plaintiff-appellant, Peggy Ann Mitchell, appeals the judgment of the trial court sustaining defendants-appellees’, State Farm Mutual Automobile Insurance Company and Oscar Garcia, Jr., exception of prescription and dismissing her suit against these defendants.

On October 21, 1978, a collision occurred between a pickup owned by Eugene Delmar Nichols, the insured of defendant Dairyland Insurance Company, and a vehicle driven by Oscar Garcia, Jr., the insured of defendant State Farm. As a result of the collision, the pickup’s passenger door was jammed and could not be opened until March 28, 1979, at which time it suddenly popped open causing plaintiff, a passenger in the pickup, to fall to the street. Plaintiff filed suit on October 28,1979, for damages she sustained in the fall.

Defendants herein filed an exception of prescription on the basis that the suit by plaintiff was filed more than one year after the collision of October 21, 1978.

Defendants contend the proximate cause of the door’s malfunction occurred six months before plaintiff’s injury and that plaintiff is charged with notice of this prior negligent conduct. The exception of prescription was sustained by the trial court apparently on this basis. No written reasons for judgment were assigned nor was any evidence presented at the hearing on the exception.

Louisiana Civil Code Article 3537 provides that the prescriptive period of one year for offenses and quasi offenses in La. C.C. art. 3536 begins to run when the damage is sustained.

Plaintiff filed her petition seven months after the day on which she allegedly received her injuries, well within the applicable prescriptive period. Under La.C.C. art. 3537, the crucial date is the day the damage was sustained, not the day upon which the allegedly negligent conduct occurred. Coon v. Blaney, 311 So.2d 622 (La.App. 3rd Cir. 1975). Defendants’ exception of prescription should have been overruled.

For these reasons, the judgment of the trial court dismissing plaintiff’s action against defendants herein is reversed and this case is remanded to the trial court for further proceedings. The costs of this appeal are assessed against defendants-appel-lees.

REVERSED AND REMANDED.


author: EDWARDS, Judge.

text:
    Leo JOHNSON v. BERRY BROTHERS GENERAL CONTRACTORS, INC. et al.
    No. 14355.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.

      Gordon Hackman, Boutte, for plaintiff.
    Arthur I. Robison, Allen, Gooch & Bourgeois, Lafayette, for defendant.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   EDWARDS, Judge.

Plaintiff, Leo Johnson, brought suit against Berry Brothers General Contractors, Inc. for personal injuries he sustained while working for Berry Brothers. Johnson sought recovery in workmen’s compensation as well as in tort.

Berry Brothers filed a motion for summary judgment on both the tort claim and the workmen’s compensation claim. The trial court granted summary judgment on the tort claim. The court based its conclusion that there was no material issue of fact on the “pleadings, depositions, affidavits, and argument of counsel.” The trial judge denied the motion for summary judgment on the workmen’s compensation claim. Plaintiff appeals the summary judgment in favor of Berry Brothers on the claim in tort. We affirm.

Counsel for appellant contends that the trial court erred in failing to give plaintiff time to amend his petition after summary judgment was granted. Appellant relies on LSA-C.C.P. Art. 934, which provides as follows:

“When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection cannot be so removed, or if plaintiff fails to comply with the order to amend, the action shall be dismissed.”

Appellant’s reliance on this statute is misplaced. A simple reading of the statute reveals that it is applicable where the trial court has sustained a peremptory exception. In this instance, the trial court did not sustain a peremptory exception; it granted a. motion for summary judgement. The statute cited by counsel for appellant is inapplicable here.

Next, the appellant contends that the trial court erred in granting defendant’s motion for summary judgement while Bazley v. Tortorich, 397 So.2d 475 (La.1981), was pending before the Louisiana Supreme Court. In Bazley, the Supreme Court clarified the nature of the intentional act exception to the tort immunity provided employers and fellow employees by LSA-R.S. 23:1032. Bazley made clear that an employee has an action against his employer or a fellow employee when the defendant desired to bring about the physical results of his act or believed they were substantially certain to follow from his actions. Appellant maintains that the trial court should not have granted the motion for summary judgement while Bazley was pending before the Supreme Court.

Assuming, arguendo, that the trial court should have withheld judgement until Bazley was decided, Johnson has failed to demonstrate that he suffered any prejudice from the trial court’s action. The record on appeal does not contain the depositions and affidavits relied on by the trial court. Judgements of a trial court are presumed correct and items of evidence or transcripts missing from the record are presumed to support the judgement of the trial court. DeLaneuville v. Duplessis, 385 So.2d 385 (La.App. 1st Cir. 1980); United Pentecostal Church v. Interstate Surplus, 368 So.2d 1104 (La.Appl. 2nd Cir. 1979).

Nothing in the record before this court alleges sufficient intentional acts on the part of Berry Brothers to fall within the Bazley rule. The record does not show that Berry Brothers desired that plaintiff be injured or that defendant believed that Johnson’s injuries were substantially certain to result from its acts. Appellant has failed to demonstrate that a different result would have been required on the motion for summary judgment had the trial court waited for the rendition of the Supreme Court’s decision in Bazley. In light of the absence of any evidence in the record to show that a different result would have been required, appellant has failed to demonstrate that he sustained any injury from the trial court’s action.

For the foregoing reasons, the judgment of the trial court is affirmed. Appellant, Leo Johnson, is cast with all costs of this appeal.

AFFIRMED.