text:
    Charlie GODFREY v. JOHN L. VACCARO AND ASSOCIATES, INC., and Rockwood Insurance Company.
    No. 14256.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.
    Ronald L. Causey, Baton Rouge, for plaintiff-appellee.
    Roger J. Breedlove, Alexandria, for defendants-appellants.

      Henry B. Bruser, III, Alexandria, for third party appellee Louisiana Southern Forest Products.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

This workmen’s compensation suit involves the determination of who is the plaintiff’s statutory employer and any rights the statutory employer may have against third parties. Plaintiff-appellee, Charlie Godfrey, sued only John L. Vaccaro and Associates and Rockwood Insurance Company, its workmen’s compensation insurer, for workmen’s compensation benefits contending that Vaccaro was his statutory employer. Both defendants third partied Louisiana Southern Forest Products, Inc. (Southern), its workmen’s compensation insurer, Southern Casualty Insurance Company, and Robert Willis d/b/a B & W Logging Company. The trial court awarded judgment in favor of the plaintiff and against Vaccaro and Rockwood for total and permanent disability, medical expenses, 12% penalties and attorney’s fees in the amount of $4,500. The court dismissed the defendants’ third party demands.

Plaintiff was an employee of Robert Willis d/b/a B & W Logging, a small logging firm, as a truck driver. The accident occurred on August 22, 1979, when a log fell off of a truck and struck him, rendering him a quadriplegic. There is no dispute that the plaintiff was in the course and scope of his employment with B & W, La. R.S. 23:1031, and that his injuries have rendered him totally and permanently disabled under the workmen’s compensation statute. La.R.S. 23:1221(3).

The dispute arises as to who is responsible for paying plaintiff's workmen's compensation benefits and medical expenses.

As mentioned above, plaintiff Godfrey was employed by B & W as a truck driver. B & W was under contract with Southern to cut and remove all timber from a tract of land referred to as the Delano Plantation in St. Landry Parish. Southern had a timber deed with the owners of Delano Plantation to cut and remove all timber. In effect, Southern had bought all of the timber on this tract and agreed to remove it.

Southern was described by its president and majority stockholder as a manufacturing wholesaler of lumber. It has a sawmill and only handled saw logs. It did not directly use pulpwood. In this particular instance, Southern had purchased both the pulpwood and saw logs. Southern had instructed B & W to enter the tract and cut all timber. B & W was also instructed by Southern to deliver all saw logs to Southern’s sawmill near Port Barre. As to the pulpwood, Southern had instructed B & W to deliver it to Georgia Pacific in accordance with an arrangement it had with Buffalo Wood, a broker for Georgia Pacific.

Georgia Pacific operated a chip mill for pulpwood near Simmsport, Louisiana, but did not buy pulpwood directly from producers or contractors but only from three or four brokers. All of the pulpwood harvested from the Delano Plantation was taken directly to this mill by B & W as per the instructions of Southern.

In midsummer, Georgia Pacific put a quota on the amount of pulpwood Buffalo Wood could deliver to it. Buffalo Wood, in turn, terminated buying pulpwood from Southern. Southern then contacted John Vaccaro of John Vaccaro and Associates, since this defendant was also a broker for Georgia Pacific.

Southern and Vaccaro entered into an oral agreement in which Southern would sell pulpwood through Vaccaro to Georgia Pacific. Southern initiated this agreement which had no effect on its prior contract with B & W. Vaccaro did nothing in regard to the operation of the cutting, the determining of what wood was pulpwood, the hauling or delivering of the pulpwood. Its name was only used to allow Southern to bring the pulpwood to Georgia Pacific. The agreement is in dispute here and relevant to the ultimate determination of this case.

The agreement was to the effect that Vaccaro would accept Southern’s pulpwood delivered to it by B & W. The price for such pulpwood was established as follows: the owner of the Plantation would receive $4.00 per cord for stumpage; the price paid to deliver the pulpwood was set by determining what zone the pulpwood came from; it was found that this pulpwood came from zone three, and; the producer (B & W) was thus entitled to the sum of $26.23 for delivering the pulpwood. In furtherance of the agreement, Vaccaro agreed that he would deduct $2.37 for workmen’s compensation premiums and pay Southern an additional dollar since B & W was Southern’s producer. Vaccaro would pay weekly to Southern the amount of $30.23 per cord delivered to Georgia Pacific plus an additional dollar per cord. Southern, in turn, would pay $4.00 to the stumpage owner and $26.23 to B & W.

Vaccaro stated at trial that he had numerous producers for whom he bought instance. If a producer did not have a Certificate of Insurance filed with Vaccaro, then Vaccaro would deduct an amount for insurance from the price per cord. Since no Certificate of Insurance was issued to him by B & W, he deducted $2.37 per cord for insurance on his payments to Southern.

Southern contends Vaccaro agreed to be liable for workmen’s compensation for the entire operation of cutting and hauling the pulpwood and Southern would be liable for the saw log operation. With this arrangement, a great deal of testimony at trial was devoted to whether the log that struck the plaintiff was a saw log or pulpwood. Plaintiff in a statement given a month after the accident stated that the log was a saw log. He changed his story in his deposition contending that it was pulpwood that struck him. In addition, the log was seen by the court and described by other witnesses as pulpwood. We find that the trial court was correct in finding the log was a pulpwood.

The trial court found that Vaccaro and Associates was the statutory employer of Godfrey since B & W and Southern were dealing exclusively with Vaccaro for puip-wood, citing Bellard v. Tri-State Insurance Company, 282 So.2d 453 (La.1973) and Woodard v. Southern Casualty Insurance Co., 305 So.2d 528 (La.1974). In addition, the court found that Vaccaro took out insurance by deducting a certain amount per cord and that such a factor can be used in determining whether an employment relationship exists, although it cannot be the sole factor. Kline v. Dawson, 230 La. 901, 89 So.2d 385 (1956).

On the third party demand, the trial court found that although a principal may have a right of indemnity against a subcontractor, this right may be negated. Andrews v. Spearsville Timber Co., Inc., 343 So.2d 1008 (La.1977). It found such a negation of the right in this case. It found that in the agreement between Southern and Vaccaro, Vaccaro was deducting a certain amount to buy insurance for any injury that might occur in the course of the pulpwood operation.

We affirm the judgment of the trial court finding Vaccaro the statutory employer of Charlie Godfrey. The basis for this affirmation is that we find Godfrey a statutory employee of Southern and that Southern had a vendor-vendee relationship with Vaccaro for the cutting and delivery of products which were part of the regular trade, business and occupation of Vaccaro.

Although never raised as a direct issue in this case, Southern cannot deny the fact that it was the statutory employer of God-frey since Southern contracted with B & W, Godfrey’s immediate employer, to cut and remove all timber from the Delano Plantation. This work was a part of the regular trade, business, or occupation of Southern. La.R.S. 23:1061.

Under the Supreme Court’s rationale in Bellard and Woodard supra, recovery is allowed to an injured employee when that injured employee’s employer sells pulpwood to a pulpwood broker. The courts have looked past the vendee-vendor relationship of the employer and broker and found liability. This is the case even though the broker had no ownership rights in the timber or control over the operation of the employer, but simply bought the pulpwood from the employer.

With this expansive reading of Section 1061, we hold that Vaccaro is liable for the injuries sustained by Godfrey. Godfrey is being considered a statutory employee of Southern with Southern having a vendor-vendee relationship with Vaccaro. Vaccaro is in the business of procuring pulpwood and has an exclusive relationship with Southern to handle all the pulpwood off of the Delano Plantation. (See also Welch v. Crown Zellerbach Corp., 393 So.2d 270 (La.App. 1st Cir. 1980), for a similar employee-employer relationship).

We also agree with the trial court’s dismissal of defendants’ third party demands against Southern since they have negated the right to indemnity and contribution by agreeing to be responsible for workmen’s compensation coverages as to the pulpwood operation.

For the reasons assigned, the judgment of the trial court is affirmed at appellants’ costs.

AFFIRMED.


source: Caselaw Access Project

author: COVINGTON, Judge.

license: Public Domain

text:
    Doris Snow COVINGTON, et al. v. Jerry L. HUGHES, et al. Harvey KING, et al. v. Jerry L. HUGHES, et al.
    Nos. 14257, 14258.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.

      Ernest Hartenstine, Denham Springs, for plaintiff Doris Snow Covington.
    Robert W. Morgan, Baton Rouge, for plaintiff Harvey King.
    Richard B. Nevils, Baton Rouge, for Gary Guerin & American Southern Insurance Co.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

These consolidated appeals are taken from judgments in two actions arising from the same three-vehicle collision.

Sherry Lynn Snow and Tonya King, both minors, were guest passengers in an automobile driven by Kelly B. Lavigne, also a minor. The Lavigne vehicle was struck head-on by an automobile driven by Jerry L. Hughes, an uninsured motorist. Thereafter, a pickup truck driven by Gary Guerin collided with the rear of the Lavigne vehicle.

Doris Snow Covington and Harvey King, parents of the guest passengers in the La-vigne vehicle, filed separate actions, both individually and on behalf of their minor children, against Warren Lavigne and Agnes Lavigne, the parents of Kelly La-vigne, Jerry Hughes, Gary (Carey) Guerin and various insurers. The two actions were consolidated for purposes of trial.

As the result of settlements, suit was dismissed prior to trial against all defendants except Hughes, Guerin and American Southern Insurance Company, the insurer of the Guerin truck. After trial on the merits, judgments were rendered in both cases in favor of plaintiffs and against the remaining defendants, in solido. Guerin and his insurer appealed. Hughes has not appealed, so the judgment is final as to him.

Appellants specify as error on appeal that the trial court erred in finding negligence on the part of Gary Guerin under the factual circumstances presented at the trial.

The record reflects that the accident occurred on a straight segment of Louisiana Highway 16, a two-lane hard-surfaced roadway, at approximately 9:30 to 10:00 o’clock, p. m. The highway was wet and slippery from rain. The Lavigne automobile was traveling in a southerly direction, followed by the Guerin truck. Guerin testified that both vehicles were traveling about 50 miles per hour, and that he was about 75 feet behind the preceding automobile (Lavigne). Guerin first observed the Hughes automobile when it swerved into the southbound lane ahead of the Lavigne vehicle. He testified that after the impact of the two cars ahead of him, he turned his truck to the left, and applied his brakes; but his truck skidded into the rear of the Lavigne automobile, coming to rest in a ditch ahead (to the south) of that car.

The two impacts happened in quick succession. Officer John Futrel, the state trooper who investigated the accident, noted in his report that the Lavigne vehicle traveled ten feet after impact. He testified that the debris indicated that the length of a car (which he fixed at about 20 feet) separated the two areas of impact at the front and rear of the Lavigne vehicle.

In his findings or written reasons for judgment, the trial court stated that the second collision “was caused by the negligence of the defendant Gary Guerin in following plaintiff’s vehicle more closely than was reasonable and prudent under the circumstances that existed.” The trial court specifically noted that it was a dark night and that the highway pavement was wet.

LSA-R.S. 32:81(A) provides:

“The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent,- having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.”

It is well settled that a following motorist is presumed negligent if he collides with the rear of a leading motorist, and bears the burden of exculpating himself from the inference of negligence. Welch v. Thomas, 263 So.2d 427 (La.App. 1 Cir. 1972), writ denied, 262 La. 1132, 266 So.2d 434 (1972). To overcome this presumption, the following motorist must prove that he kept his vehicle under control, closely observed the forward vehicle, and followed at a safe distance under the circumstances. Eubanks v. Brasseal, 310 So.2d 550 (La. 1975). Following motorists have escaped liability for rear-end collisions by establishing that the forward vehicle, encountered in the dark, was stalled and unlighted, as in Vascoe v. State Farm Mutual Automobile Insurance Company, 260 So.2d 161 (La.App. 2 Cir. 1972), or that the unpredictable driving of the preceding motorist created a sudden emergency that the following motorist could not reasonably have anticipated, Baptiste v. Granada, 387 So.2d 1235 (La.App. 1 Cir. 1980). Hence, the appellants contend that without warning the Hughes vehicle crossed the center line and collided head-on with the Lavigne car so suddenly that Gue-rin was unable to avoid colliding with the rear of the forward vehicle. Thus, appellants argue they have overcome the presumption of negligence against Guerin as the following motorist.

We disagree. We find that the record establishes that Guerin failed to satisfy the standard of conduct of LSA-R.S. 32:81(A) in that, in the words of the trial judge, Guerin followed the Lavigne car “more closely than was reasonable and prudent under the circumstances that existed,” it being a dark night with the highway pavement wet and “real slick”, as Guerin admitted. We conclude that Guerin was operating his truck much too close to the forward car and was not maintaining his vehicle under proper control under the circumstances. His failure to operate his vehicle at a safe distance and in a proper manner constitutes, in our opinion, negligence on his part which was a cause in fact of the accident. Consequently, Guerin is responsible for the damages sustained by the plaintiffs as a result of his fault.

For the foregoing reasons, the judgments appealed are affirmed. Costs of the appeals are to be borne by appellants.

AFFIRMED.


author: LOTTINGER, Judge.

text:
    Ann WELCH, Wife of/and Michael Welch, d/b/a Servicemaster of St. Tammany Parish v. SOUTH CENTRAL BELL TELEPHONE COMPANY.
    No. 14259.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.
    Mark Alan Jolissaint, Slidell, for plaintiff-appellant.

      Gane K. Barranger, Covington, for defendant-appellee.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

Ann and Michael Welch, doing business as Servicemaster of St. Tammany Parish, filed this suit against South Central Bell Telephone Company, seeking $400,000.00 for loss of business earnings and mental anguish allegedly sustained as a result of defendant’s omission of plaintiffs’ advertisement in the yellow pages. Plaintiffs seek recovery for breach of contract and negligence. The defendant filed a motion for summary judgment contending that an exculpatory clause in an advertisement contract limited its liability to the amounts charged for publication. The district court agreed and granted the motion for summary judgment.

Plaintiffs appealed. They complain that the trial court erred in holding that the exculpatory clause applied to them under the circumstances of this case. They also contend that the advertisement contract is adhesive and, as such, is invalid because it violates public policy.

We need not address the substantive issues raised by the plaintiffs because, on the record before us on appeal, the defendant has not met the requirements for summary judgment. La.C.C.P. arts. 966, 967.

THE FACTS

In September, 1978, the plaintiffs entered into a contract with Directory Service for Yellow Pages (Directory Service), a division of Frank C. Nahser, Inc., for placement of an advertisement and two listings in the telephone book yellow pages. Directory Service, which is apparently an advertisement agency specializing in selling and designing ads for the yellow pages, designed the plaintiffs’ ad and then submitted it for publication to the defendant who, plaintiffs allege, was paid about $700.00 for the service. The plaintiffs state that Directory Service did everything required of it under the contract with the plaintiffs. However, they claim South Central Bell negligently failed to publish the ad and breached its contract with Directory Service. Plaintiffs claim Directory Service was acting on their behalf and that South Central Bell is therefore liable to them for breach of contract.

South Central Bell answered with a general denial. It then filed a motion for production of documents and, eight months later, a motion for summary judgment. The text of the latter motion mentions certain attachments to plaintiffs’ pleadings and a deposition of Michael Welch. None of these is in the record. However, attached to the motion is a copy of an order form/contract between Michael Welch and Directory Service. Also attached to the motion is a defense counsel memorandum making note of the exculpatory clause in the order form/contract between Welch and Directory Service and ostensibly contending that the exculpatory clause inures to the benefit of South Central Bell.

Some three months after the summary judgment motion was filed, an affidavit was filed in the record, apparently on behalf of the defendant. The affiant is Sandra A. Halpin of Chicago, Illinois, who states that she is associate director for Directory Services for Yellow Pages. She states that “she is familiar with the Ruben H. Donnelly Corporation agreement for National Yellow Pages Service . . . . ” She quotes from “Subsection Seven” of the “attached” agreement. However, the agreement is not attached and is not in the record. Subsection Seven, as quoted in the affidavit, purports to be an exculpatory clause limiting the liability of “RHD (Ruben H. Donnelly), the various publishers and their respective agents and employees” for failure to publish directory advertisements. Ms. Halpin states further that the quoted clause “is specifically required by the publisher, South Central Bell Telephone.”

Confused? So are we. Who is Ruben H. Donnelly and how did he and his corporate namesake get involved in this lawsuit? What connection does South Central Bell have with any of these parties? Who is under contract with whom for yellow page advertising and publication, and what contractual link is there between the plaintiffs and the defendant?

None of these questions is answered in the record before us. Many issues of fact and law remain open. The mover for summary judgment must prove by the pleadings, depositions, affidavits, and answers to interrogatories and admissions on file that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law. La.C.C.P. 966. South Central Bell failed to meet the test.

Therefore, for the above and foregoing reasons, the decision of the trial court is reversed at defendant’s costs.

REVERSED.

      . The following clauses appear in the contract between Welch and Directory Service:
      “The liability of the Directory Service for Yellow Pages in connection with any error or omission in publication of, or failure to publish, any item of advertising in any issue of any directory shall be limited to the charges for the publication in such issue of the item of advertising involved, excluding charges for cuts, engravings or electrotypes. In addition to charges for the publication of advertising, licensees will be charged and invoiced for state and local taxes as well as for engraving, electrotype, typesetting and other outside costs incurred by Directory Service for Yellow Pages.
      “This agreement is subject to the regulations of the Publishing Companies applicable to publication of the advertising in their directories, and to changes or modifications, including rates and charges, authorized or directed by any regulatory body having jurisdiction.”

      . The quoted clause in full reads:
      “With respect to any error or omission in the publication of or failure to publish any item of the advertising in any directory, the liability of RHD (Ruben H. Donnelly), the various publishers and their respective agents and employees in the performance of their re-sponsibiiityies [sic] under this agreement shall be limited to the charges for the publication in such directory of the item of the advertising involved. No adjustment shall be made in any advertising charges for reason of suspension or termination of telephone service.”


author: EDWARDS, Judge.

text:
    DEPARTMENT OF WILDLIFE AND FISHERIES v. Edward A. BARNES.
    No. 14260.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.

      Peter E. Duffy, Staff Atty., Dept, of Wildlife and Fisheries, Metairie, for appellant.
    Lawrence K. McCollum, Shreveport, for appellee.
    Laura Denson Holmes, Civil Service Legal Counsel, Dept, of State Civil Service, Baton Rouge, for George Hamner, Director of the Dept, of State Civil Service.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

This case is an appeal by the Louisiana Department of Wildlife and Fisheries from a decision of the Louisiana State Civil Service Commission modifying the disciplinary sanction the Department had assessed against one of its employees, Edward A. Barnes, appellee herein. By letter dated August 1, 1978, appellant demoted appellee from Wildlife Agent II to Wildlife Agent I and suspended him without pay for a period of thirty days. The reasons given in the letter for the demotion and suspension were that appellee had issued sixteen fraudulent Louisiana Wildlife Commission violation citations between May 25, 1973, and December 19, 1975; and that he had failed to report to a proper authority that his supervisor had directed him not to file charges with the District Attorney’s office against two particular persons, whom he had previously cited for violation. After hearing, the Civil Service Commission issued an opinion upholding appellee’s suspension, reversing the demotion, and ordering appellee reinstated to Wildlife Agent II with full back pay, except for the amount he would have earned during his suspension.

A careful review of the entire record convinces us that, based on the facts elicited, the Civil Service Commission’s decision was not manifestly erroneous.

For the foregoing reasons, the decision appealed from is affirmed. All costs, both before the Civil Service Commission and on appeal, are to be paid by the Department of Wildlife and Fisheries.

AFFIRMED.


author: LEAR, Judge.

text:
    Forrest W. SPEARS v. DEPARTMENT OF CORRECTIONS, Louisiana Correctional and Industrial School, DeQuincy.
    No. 14261.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.

      Mary E. Howell, Howell & Kellogg, New Orleans, for appellant.
    Annette R. Seng, Staff Atty., Dept, of Justice, Baton Rouge, for appellee.
    Laura D. Holmes, Civil Service Legal Counsel, Dept, of Civil Service, Baton Rouge, for George Hamner, Director of the Dept, of State Civil Service.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

This appeal was taken by plaintiff, Forrest W. Spears, from a ruling of the State Civil Service Commission dismissing his appeal as untimely.

Plaintiff was employed by the Department of Corrections as a security officer at Louisiana Correctional and Industrial School in DeQuincy, Louisiana. The appointing authority notified plaintiff, by letter dated June 22, 1978, that he was being suspended for five working days, commencing on June 30, 1978. The reasons for this suspension were stated in the authority’s letter. Plaintiff notified the commission of his desire to appeal, by letter which was dated and postmarked July 24, 1978, and in which letter plaintiff stated that he had received the above referred to written notice of his suspension on June 23,1978. The authority filed a motion for summary disposition on the ground that the appeal was untimely filed, and plaintiff responded by alleging inadequate notice and certain constitutional defects. A hearing on the issue of the timeliness of plaintiff’s appeal was held, and the commission, in its opinion dated July 18, 1980, granted the authority’s motion and dismissed plaintiff’s appeal. Plaintiff thereafter perfected an appeal to this court.

We find the record to be clear on the following points: (1) On June 23, 1978, plaintiff received the authority’s letter dated June 22, 1978, notifying him of the suspension; (2) the authority’s letter contained no notification that plaintiff had a right to appeal to the Civil Service Commission, nor that an appeal must be taken within thirty days of receipt of that notice; (3) the authority’s letter to plaintiff advised him that he could contest this action [his suspension] by replying by letter to the person writing the letter; and (4) plaintiff’s letter of appeal to the commission was dated and postmarked July 24, 1978.

Plaintiff testified that, at the time he received the authority’s letter and for “a good while after” he received the letter, he believed that the grievance he had filed with his union would automatically activate a civil service appeal and he was unaware that it was necessary for him to file an appeal with the Civil Service Commission itself. He further testified that he was then informed by a union official of the necessity of filing a civil service appeal within thirty days of notification, and on Friday, the 21st [of July, 1978], plaintiff wrote to his attorney concerning his appeal. Again, the record indicates that plaintiff’s appeal was dated and postmarked by his attorney on Monday, July 24, 1978.

In the recent case of Pailet v. Office of Health Services and Environmental Quality, Department of Health and Human Resources, 387 So.2d 1274 (La.App. 1st Cir., 1980), which also concerned the suspension of a permanent state civil service employee, we held that when an employee protected by civil service is suspended, the thirty day delay for appeal does not commence to run until notice sufficient to constitute notice under Civil Service Rule 12.3 is furnished him. However, because Pailet, supra, concerned the adequacy of the notice regarding the details of the alleged offense, rather than the remaining provisions of Rule 12.-3(a) relating to appeal rights and delays, we do not believe that the Pailet case is entirely dispositive of this instant case. In Pailet, supra, our holding was based on the requirements of due process. In this instant case, while it is unnecessary for us to determine whether due process requires a suspended employee to be informed of his appeal rights and delays, we do find that, where the Civil Service Rules require that protected employees who are removed, demoted or reduced in pay must be informed of their appeal rights, including delays, the equal protection provisions of both the federal and Louisiana constitutions require that similarly situated employees who are merely suspended be advised of these appeal rights and delays in the written detailed reasons required under Rule 12.2.

Under both the Fourteenth Amendment of the United States Constitution and Article 1, Section 3 of the Louisiana Constitution of 1974, no person can be denied the equal protection of the law. And, the right to equal protection applies to every kind of state action, whether by law or the action or rules of an administrative agency. Glicker v. Michigan Liquor Control Commission, 160 F.2d 96 (6 Cir. 1947).

In the recent case of Succession of Thompson, 367 So.2d 796 (La. 1979), our Supreme Court stated that:

“The equal protection guarantee of Article 1, § 3 requires state laws to affect alike all persons and interests similarly situated. However, persons or interests may be classified differently by the legislature [or an administrative agency] if a rational basis exists for the differentiation which is reasonably related to a valid governmental purpose.” [Bracketed portion supplied; citations omitted.]

Even allowing to the state in this case the lowest level of scrutiny, that of requiring only a rational basis for the distinction, which is reasonably related to a valid governmental purpose, we can find no justification for treating protected state civil service employees who are terminated, demoted or reduced in pay differently than those who are merely suspended, as concerns a statement of their appeal rights and delays. Certainly, both classes of employees are adversely affected by the respective disciplinary action taken against them, and both may suffer loss of wages, status and employment, either permanently or temporarily. The state argues that suspension is a lesser penalty than termination, demotion, or reduction in pay, in that such suspensions are usually for a period of no more than ten days. However, we find that the civil service regulations allow suspension, without pay, of a protected employee for up to ninety days without the prior approval of the commission. We cannot agree that this loss of employment, status and income for three months is not as severe, or in some cases more severe, than termination, demotion or reduction in pay. Even if we were to accept the state’s argument on this point, we do not believe that the mere fact that one penalty may be less severe than another justifies unequal treatment with regard to the type or details of notification as to the employee’s right of appeal.

The state also directs our attention to Pailet, supra, as in indication that the separate procedures provided by Rules 12.2 and 12.3 have been sanctioned by this court. On the contrary, however, in Pailet, supra, we held that employees who are suspended should not be treated differently from those who are terminated, demoted or reduced in pay, as relates to the amount of time the employee has to appeal. We also found in Pailet, supra, that the disparate treatment of protected employees could be sanctioned only as it relates to whether the disciplined employee must be informed in writing of the details of the alleged offense at or prior to being disciplined rather than within fifteen days following the effective date of the discipline (suspension). These arguments do not address themselves to the issue of notification of appeal rights and delays.

Both categories of protected employees may appeal disciplinary action taken against them to the Civil Service Commission within thirty days, and their appeals, in both cases, must conform to the provisions of Chapter 13 of the Civil Service Rules. It is a mere statement of these facts that the Civil Service Rules require to be given to an employee who is terminated, demoted or reduced in pay, and which statement is not required to be given to the same employee, or other employees similarly situated, who is merely suspended. We can find no rational basis for the requirement in one case and the lack of requirement in the other.

Based on the above, we find that, as a suspended employee, plaintiff should have been accorded the same quality of notice as that which is provided to other protected employees who are disciplined under Civil Service Rule 12.3. We, therefore, hold that, because the notice given to plaintiff was substantively different than that accorded to protected employees who are disciplined under Civil Service Rule 12.3, the authority’s letter of June 22, 1978, received by plaintiff on June 28, 1978, was insufficient to commence the running of plaintiff’s thirty day delay for appeal. Plaintiff’s appeal was, therefore, timely.

For the above reasons, the decision of the State Civil Service Commission, dismissing plaintiff’s appeal as untimely, is hereby reversed and this cause is hereby remanded to the commission for further action on plaintiff’s appeal of his suspension. Appellee is to pay costs in the amount of $25.00.

REVERSED AND REMANDED.


text:
    COPO FEDERAL CREDIT UNION v. Wanda F. HOLDEN, Co-Maker Melvin Holden and Leo J. Berggreen, Co-Maker.
    No. 14263.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.
    Writ Denied Sept. 28, 1981.

      John H. Fetzer, III, A. N. Eichelberger, III, Baton Rouge, for plaintiff-appellee, Copo Federal Credit Union.
    Ben F. Day, Marion Weimer, Baton Rouge, for defendants-appellants, Wanda F. Holden, Melvin Holden and Leo J. Berg-green.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is a suit on a promissory note. Defendants filed an answer and reconventional demand averring partial payment and usury, and seeking recovery of all interest paid on the note. From a trial court judgment in favor of plaintiff, defendants have appealed.

The promissory note in part reads:

JANUARY 9, 1975
“$3229.00
For value received, I/We, jointly and severally, promise to pay to the Copo Federal Credit Union, or order, the sum of THREE THOUSAND TWO HUNDRED TWENTY NINE and .00 Dollars plus interest on unpaid balances at the rate of 1 per cent per month, payable in SIXTY installments of SIXTY TWO and .43 Dollars, including interest; the first payment to be made on 1-14-75 and a like amount every SEMI MONTHLY thereafter until the full amount has been paid.”

The record points out that the true semimonthly payment was $62.427. This figure was rounded off in the note to $62.43. Defendants-appellants argue the payment of $62.43 in 60 semi-monthly installments amounts to 12.01 per cent interest per an-num, which is usurious. Credit unions, as of the date of the promissory note, were authorized to charge “interest, which shall not exceed one per cent a month computed on unpaid balance.” La.R.S. 6:654, Act 160 of the 1972 Regular Session.

Plaintiff argues that rounding off the semi-monthly payments to the nearest cent is customary and does not make the interest rate usurious because interest, according to the terms of the note, is charged at the rate of 1 per cent per month on the unpaid balance. If the payment schedule had been maintained, at the 60th installment, the defendants would have paid only what was then due and owing — the unpaid principal balance plus interest at the rate of 1 per cent per month.

In Louisiana, usury is determined from the face of the instrument. Grunewald v. Bartholomew, 269 So.2d 274 (La.App. 4th Cir. 1972). In Paulet v. Pirello, 353 So.2d 1307 (La. 1977), our Supreme Court held that even though the note is not usurious on its face, if subsequent payments in fact and by agreement of the parties constitute usurious interest, then the forfeiture rule applies. La.R.S. 9:3501.

The note in this case recites a principal amount of $3229.00 and an interest rate of 1 per cent per month on the unpaid balance. The interest rate is that allowed by La.R.S. 6:654; it is not usurious. We disagree with defendants-appellants that the payment schedule makes the interest usurious. The payment schedule in the note merely sets forth the minimum payment to be made. Regardless of the payment, interest is only charged on the unpaid balance.

Defendants-appellants also argue that certain late payments were assessed and constituted usurious delinquency charges. The burden of proof is on the person claiming usury. Defendants have failed to meet their proof.

Lastly, defendants-appellants allege that $125.00 of a $500.00 payment was erroneously charged as attorney fees. At the time of the $500.00 payment, the contracted payment schedule had not run its course, nor had plaintiff given notice of exercise of its option to accelerate the payments because of delinquency. Thus, attorney fees could not be charged. Chapman v. Capri Construction Company, 248 So.2d 101 (La.App. 4th Cir. 1971). The trial court judgment is amended to apply the $125.00 as a credit against the balance due.

Therefore, for the above and foregoing reasons, the judgment of the trial court is amended to allow a credit of $125.00 against the principal balance due and owing, and as amended it is affirmed at defendants-appellants costs.

AMENDED AND AFFIRMED.


author: CHIASSON, Judge.

text:
    EVANGELINE MEDICAL & X-RAY DISTRIBUTORS CORPORATION v. COLEMAN OLDSMOBILE, INC., et al.
    No. 14264.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.

      Gerard E. Kiefer, Baton Rouge, for plaintiff-appellee Evangeline Medical and X-Ray Distributors Corp.
    Carey J. Guglielmo, Baton Rouge, for defendant-appellee Chrysler Motors, Inc.
    Robert L. Kleinpeter, Baton Rouge, for defendant-appellant Coleman Oldsmobile Inc.
    Terrance C. McRea, Baton Rouge, for defendant-appellant Georgie Boy Manufacturing, Inc.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

Plaintiff-appellee, Evangeline Medical & X-Ray Distributors Corporation, was successful in this redhibition suit in which it sought a rescission of a sale of a motor home sold to it by the defendant-appellant, Coleman Oldsmobile, Inc., and manufactured by the defendant-appellant, Georgie Boy Manufacturing, Inc., on a Dodge chassis, manufactured by defendant-appellee, Chrysler Corporation. The trial court rescinded the sale returning the purchase price plus an award of attorney’s fees to the plaintiff and against the defendants, Coleman and Georgie Boy. The court allowed the seller, Coleman, full indemnification from the manufacturer, Georgie Boy, plus an award for its attorney’s fees. All claims against Chrysler were dismissed. From this ruling Coleman and Georgie Boy have appealed.

The plaintiff, through its president, John C. Bonfiglio, purchased the thirty-two foot motor home on March 14, 1979 from Coleman Oldsmobile, a dealership in Baton Rouge. This was the first such vehicle bought by the company although they had rented similar vehicles in the past. Mr. Bonfiglio had purchased a number of passenger vehicles from Coleman and was familiar with its operation.

The motor home was a 1979 Swinger motor home manufactured by Georgie Boy on a Dodge chassis. The plaintiff intended using the vehicle for business purposes which included traveling through Louisiana and Mississippi installing and servicing X-ray equipment. In addition, it was to be used by Mr. Bonfiglio and his family for recreational purposes.

Three personal trips were made by Mr. Bonfiglio and his family before returning the vehicle, seeking a rescission of the sale based on the numerous problems encountered on their trips. The first trip was a weekend venture to LaPuma Beach near Independence, Louisiana, a drive of about fifty miles from Baton Rouge. Experiencing a number of problems, he returned the vehicle the following Monday to Coleman for repairs. A work order filed into evidence and dated March 19,1979, revealed 15 complaints. Fourteen of the complaints were worked on by Coleman and repaired. The vehicle was returned to the plaintiff following the work.

The second trip was to Gulfport, Mississippi, and again Bonfiglio and his family experienced problems with the motor home. He returned the vehicle on April 2, 1979 and the work order reflected thirteen complaints. Twelve of the thirteen complaints were noted as being repaired. Of these complaints only two were connected with earlier complaints.

The motor home was returned to the plaintiff but it was brought back to Coleman on April 16, 1979 with eleven complaints listed. Four of the complaints were related to the other work orders and only five of the items were noted as being repaired. Finally, after traveling to New Orleans, Mr. Bonfiglio experienced similar problems and had an employee of his return it to Coleman advising Coleman that he no longer wanted the vehicle and was going to sue for rescission of the sale. A letter from plaintiff’s attorney, dated April 26, 1979, was sent to Coleman tendering the vehicle.

The trial court found that the defects existed at the time of the sale. It concluded Coleman, as the seller, was in bad faith since it should have discovered ten defects in its check-out procedure. In addition, Georgie Boy, as manufacturer of the vehicle, was presumed to know of the defects in the motor home. It concluded that the evidence was sufficient for a rescission of the sale. The sale price of the vehicle was $29,983.00 and was ordered to be returned, along with $1,841.48 which represented the expenses incurred for the title, license, taxes and fees. The court also awarded plaintiff attorney’s fees in the amount of $2,000.00. Judgment was rendered against Coleman and Georgie Boy with Chrysler being dismissed of all claims. The court allowed Coleman indemnification from its manufacturer, Georgie Boy, plus $1,500.00 for attorney’s fees.

Georgie Boy argues on appeal that the trial court erred in finding the motor home redhibitorily defective and in granting a rescission where the alleged defects were repaired prior to tender of the vehicle and institution of suit. It also avers that the court erred in granting Coleman indemnity from Georgie Boy since it found Coleman a seller not in good faith and that it should have been granted indemnity from Chrysler for the problems with the chassis. Finally, Georgie Boy argues that the court erred in granting the rescission and in failing to order the return of the motor home to it. Coleman appeals and requests that the status quo of the case be maintained.

For a purchaser to be successful in a redhibitory suit to rescind the sale of a motor home, he must prove: (1) that the motor home had a nonapparent defect which existed at the time of the sale and was not known to the purchaser; (2) that this defect renders useless the motor home for the purpose for which it was bought or that its use was so inconvenient that it must be supposed he would not have made the purchase had he known of the defects; and (3) that the seller was given a fair opportunity to repair the defects and seller could not or would not correct the defects. La.C.C. arts. 2520, 2530 and 2531. Cutrer v. Kentwood Motors, Inc., 351 So.2d 817 (La.App. 1st Cir. 1977) and Purvis v. Statewide Trailer Sales, Inc., 339 So.2d 403 (La.App. 1st Cir. 1976).

The plaintiff listed 20 items in its petition which it contends are redhibitory in nature. The complaints are as follows:

“1. Unit purchased 3/14/79 but delivered on 3/24/79;
2. On first trip from Baton Rouge to LaPuma Beach, Tangipahoa Parish, Louisiana, approximately 50 miles, the gas tank began leaking and petitioner lost approximately 30 gallons of gasoline;
3. Left front wheel makes a grinding noise;
4. Interior heater did not work, requiring occupants to sleep in a motel;
5. Ice maker did not work properly and leaked water onto carpet;
6. Refrigerator door would not close;
7. Cruise control failed to operate properly;
8. Front grill was loose or broken and made a banging sound;
9. Brake lights did not work properly;
10. Counter glass broken;
11. Vacuum cleaner not working; •
12. Refrigerator operated improperly, food spoiled;
13. Screen door came apart and would not close properly;
14. Sink drained improperly and leaked onto carpet;
15. Bathroom mirrors fell out of mounting and broke;
16. Panel trim fell off;
17. Air-conditioner did not work;
18. Vehicle will not hold road at speed in excess of 40 miles per hour;
19. Front end shakes when vehicle is driven;
20. Defective suspension system and/or shock absorbers bus ‘bottomed out’ upon slightest bump.”

It is to be noted that some of these problems reoccurred on the three occasions that the motor home was taken out on trips. The vehicle was purchased on March 13, 1979, and returned to Coleman in mid April. During this period of time it had been in the shop for repairs on three occasions and it had been driven about 500 miles.

This court has held that “multiple defects can collectively form the basis of a redhibi-tory action even though many of the defects are minor or have been repaired.” Davidson v. New Roads Motor Co., Inc., 385 So.2d 319 (La.App. 1st Cir. 1980) and Cobb v. Coleman Oldsmobile, Inc., 393 So.2d 402 (La.App. 1st Cir. 1980).

The defendants contend that of the twenty complaints listed in plaintiff’s petition, only five remain to be repaired — three of the five because parts are on order, and the other two they contend do not constitute a redhibitory defect. They aver that since all of the other problems were repaired, there is no defect existing now and therefore plaintiff is not entitled to a rescission of the sale citing Reiners v. Stran-Steel Corporation, 317 So.2d 657 (La.App. 3rd Cir. 1975). With the finding of the trial court that some defects still remain, we believe that our holdings in the Cobb and Davidson cases, supra, cover this argument and are controlling in this matter.

The trial court’s finding that the defects were sufficient for a total rescission of the sale is a question of fact and will not be disturbed unless manifestly erroneous. Newman v. Dixie Sales and Service, 387 So.2d 1333 (La.App. 1st Cir. 1980). We do not find any error in the trial court’s finding of a redhibitory defect. On the first trip the Bonfiglios had to sleep in a motel because of the heater problem. On the second trip they lost all of the food because the refrigerator did not work. The testimony and the service orders prepared by Coleman reflect that the furnace, dash air-conditioner and cruise control were items constantly in need of repairs. When the motor home was returned to Coleman for the last time, the air-conditioner was still not working. The motor home had to be returned to Coleman for repairs after each trip. The defects were very inconvenient to Mr. Bon-figlio on each trip he took with the motor home.

The multiplicity of defects and the constant reoccurrence of some of these defects rendered the use of the motor home so inconvenient that it must be supposed plaintiff would not have made the purchase had it known of the defects. The unreliability of the vehicle is well established by the record.

Further, the seller was afforded a fair opportunity to repair the defect. Three opportunities to repair the reoccurring defects are certainly sufficient under the facts of this case.

Appellant also contends that the trial court erred in not finding Coleman a seller in good faith thus disallowing plaintiff attorney’s fees from Coleman. The trial court found Coleman not a seller in good faith since it failed to discover certain defects that became apparent after delivery of the motor home. In Wade v. McInnis-Peterson Chevrolet, Inc., 307 So.2d 798 (La.App. 1st Cir. 1975), this court stated:

“To recover attorney’s fees the buyer must prove knowledge of the defect by the seller. He need not prove wilful misrepresentation. It is sufficient for the buyer to prove actual or constructive knowledge by the seller. Thus, if the seller knew or should have known of the defect and failed to declare it to the buyer, the seller is liable additionally for reasonable attorney’s fees.” See also La. C.C. art. 2545 and Rey v. Cuccia, 298 So.2d 840 (La.1974).

The trial court’s award to plaintiff for attorney’s fees is correct since it determined that Coleman should have known of the defects in its check-out procedure before delivery.

Georgie Boy contends since Coleman was found not to be a seller in good faith, it should not have a right of indemnification from it under Civil Article 2531. Article 2531 provides:

“The seller who knew not the vices of the thing is only bound to repair, remedy or correct the vices as provided in Article 2521, or if he be unable or fails to repair, remedy or correct the vice, then he must restore the purchase price, and reimburse the reasonable expenses occasioned by the sale, as well as those incurred for the preservation of the thing, subject to credit for the value of any fruits or use which the purchaser has drawn from it.
“In any case in which the seller is held liable because of redhibitory defects in the thing sold, the seller shall have a corresponding and similar right of action against the manufacturer of the thing for any losses sustained by the seller, and further provided that any provision of any franchise or manufacturer-seller contract or agreement attempting to limit, diminish or prevent such recoupment by the seller shall not be given any force or effect.”

Paragraph one refers to a seller in good faith, but the right of indemnification from the manufacturer is not as restrictive. The paragraph - begins, “In any case in which the seller is held liable... ”, we construe this to mean where the seller is not at fault in creating the defects, he is entitled to indemnity. The cases cited by the appellant refer to the defects that were attributable to the seller because of refusal to repair. Perrin v. Read Imports, Inc., 359 So.2d 738 (La.App. 4th Cir. 1978) and Bagwell v. Coleman Oldsmobile, Inc., 391 So.2d 1260 (La.App. 1st Cir. 1980). This is not the case here. Coleman repaired the complaints that were reported to it and no bad faith is shown on its part in refusing to repair. The record establishes that after repairs, the unit would simply fail again for causes unassociated with the repairs previously performed. Therefore, the trial court was also correct in allowing Coleman indemnification from Georgie Boy. See the Davidson case, supra.

Finally, Georgie Boy argues that the trial court erred in failing to grant it indemnification from Chrysler. As to this argument, the record is void of any evidence to support its claim. The dismissal of Chrysler from all claims was correct.

For the reasons assigned, the judgment of the trial court is affirmed. Costs are assessed against Georgie Boy Manufacturing, Inc.

AFFIRMED.


author: PONDER, Judge.

text:
    CARGILL, INCORPORATED v. The CEMENTATION COMPANY OF AMERICA, INC., et al.
    No. 14265.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.
    Writs Denied Sept. 28, 1981.
    H. Lee Leonard, Voorhies & Labbé, Lafayette, for plaintiff.
    Thomas J. Wyllie, Adams & Reese, New Orleans, for Commerce & Industry Ins. Co. of Canada, defendant and third-party plaintiffs.
    Patrick A. Juneau, Voorhies & Labbé, Lafayette, for Hartford Ins. Co., Hartford Acc. & Indem. Co., Twin City Fire Ins. Co. and New York Underwriters Co., defendants.
    J. Winston Fontenot, Fontenot, Andrus & Preis, Lafayette, for G. Waycraft Milton, Ind. and as representative of Lloyds of London, defendant and George Milton, third-party plaintiff.
    Gerald M. Dillon, Dillon, Cambre & Marshall, New Orleans, for Midland Ins. Co., defendant.
    P. A. Bienvenu, Bienvenu, Foster, Ryan & O’Bannon, New Orleans, and John E. Conery, Conery & Breaux, Franklin, for Cementation Co. of America, Inc., Roy Ins. Co. and Canadian Indem. Co., defendants.
    Dermot McGlinchey, McGlinchey, Stafford, Mintz & Hoffman, New Orleans, for Gerling Global Gen. Ins. Co., defendant and third-party plaintiff.
    Gerald Walter, Kan trow, Spaht, Weaver & Walter, Baton Rouge, for CNA Assur. Co., defendant.
    Ellen J. Kerschner, Peterson, Ross, Schloerb & Seidel, Chicago, Ill., for third-party plaintiff, George Waycraft Milton Co.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Plaintiff appealed from a partial summary judgment dismissing plaintiff’s claim for lost profits.

The sole issue is the effect of a contractual provision.

We reverse and remand.

Plaintiff, operator of a salt mine, contracted with defendant, The Cementation Company of America (Cementation), for the construction of a salt mine shaft. The contract contained the following clause:

“14. If within one (1) year after acceptance or after termination of this Agreement the Company notifies the Contractor of any defects or inadequacies in the design, workmanship or materials which were within the control of the Contractor or were attributable to negligence in the supervision of the performance of the work by the Contractor or, if within two (2) years after acceptance or after termination of this Agreement, the Company notifies the Contractor that the watertight integrity of the shaft has ceased to exist, which can be proved to be due to defects or inadequacies in the design, workmanship or materials or negligence in the supervision or performance of the work by the Contractor, the Contractor shall promptly repair or replace, at its own expense, any such defects or inadequacies (including the cost of materials and workmanship necessarily removed or destroyed in connection with such repair or replacement).”

Following the collapse of the mine shaft, plaintiff sued defendant Cementation and its insurers seeking damages in both contract and tort for the cost of clean up and replacement of the shaft and damages for lost income, or profits or both. The trial court granted defendants’ motion for a partial summary judgment, interpreting the clause as limiting plaintiff’s damages to the repair and replacement of the shaft.

We believe that plaintiff’s claim that the court erred in interpreting the warranty clause as a waiver of its other statutory rights has merit. The court based its decision on C.C. Art. 1934(5). Although there is little jurisprudence interpreting this Article in relation to construction contracts, we hold that, at a minimum, a waiver of other statutory rights must be express and explicit. Cf. Wilda, Inc. v. Devall Diesal, Inc., 343 So.2d 754 (3rd Cir. La.App. 1977); Catalina Pools v. Sellers, 322 So.2d 812 (4th Cir. La.App.1975). We think it inconceivable that the parties intended defendants’ liability to be so limited in a construction project of this magnitude without an explicit and express waiver.

Plaintiff next contends the court erred in failing to recognize its claim in tort. Plaintiff’s claim is premature. The partial summary judgment addresses only the question of damages under the contract.

For the above reasons, the judgment is reversed and the case is remanded for further proceedings not inconsistent with these reasons. The cost of this appeal is cast equally between the appellant and the ap-pellees. All other costs are deferred pending the outcome.

REVERSED AND REMANDED.

      . C.C. Art. 1934(5):
      “Where the object of the contract is any thing but the payment of money, the damages due the creditor for its breach are the amount of the loss he has sustained, and the profit of which he has been deprived, under the following exceptions and modifications:
      ******
      “5. Where the parties, by their contract, have determined the sum that shall be paid as damages for its breach, the creditor must recover that sum, but is not entitled to more. But when the contract is executed in part, the damages agreed on by the parties may be reduced to the loss really suffered, and the gain of which the party has been deprived, unless there has been an express agreement that the sum fixed by the contract shall be paid, even on a partial breach of the agreement.”


author: COLE, Judge.

text:
    BILL NOLAN LIVESTOCK, INC. v. Joseph SIMPSON.
    No. 14268.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.
    Writ Denied Sept. 28, 1981.

      Michael R. Connelly and Jack Rogers, Baton Rouge, for plaintiff-appellant.
    Joseph H. Simpson and Charles M. Reid, Amite, for defendant.
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

The issue presented is whether a nonresident defendant suing his court appointed attorney for malpractice has a cause of action in contract or whether he is limited to a cause of action in tort. The facts giving rise to this litigation are as follows:

Bill Nolan Livestock, Inc. (hereinafter referred to as Nolan Livestock) is a livestock exportation business domiciled in Wisconsin. In 1972 and 1973 Nolan Livestock advertised its stock in several Louisiana journals. In March of 1973 Frank M. Edwards, Jr. of Tangipahoa Parish purchased 60 head of dairy calves from Nolan Livestock. The calves were delivered, the price paid and Nolan Livestock heard nothing more from Edwards. On November 17, 1973, in response to an order placed by a third party, another shipment of calves from Nolan Livestock arrived in Tangipahoa Parish. As they were being delivered sheriff’s deputies, pursuant to a writ of attachment obtained by Edwards, seized the calves and the truck in which they were being transported.

Bill Nolan, the president and principal stockholder of the plaintiff corporation, contacted Edwards and was informed some of the calves previously purchased by Edwards had died. Nolan sought representation from several attorneys in Tangipahoa Parish, including defendant, Joseph H. Simpson, but all declined to represent him. He then retained a New Orleans attorney, Mr. George Reese.

To seek legal redress for his claim against Nolan Livestock, Edwards filed two suits. His first petition (docket number 43,213) was filed November 8, 1973. In this action Edwards sought only a money judgment and directed that service be made on Nolan Livestock through the Secretary of State. Such service was effected on November 12, 1973 and on January 11, 1974 a default judgment for $6,121 was rendered. Although Edwards had not sought to attach any property (nor had a writ of attachment issued or counsel been appointed to represent defendant), the judgment also ordered “that the writ of attachment be maintained” and that “the said property be sold.”

The second suit filed by Edwards (docket number 43,226) was entitled “Petition for Writ of Attachment.” It is in this suit, filed November 12, 1973, that the instant defendant, Joseph H. Simpson, was appointed to represent Nolan Livestock. Edwards’ petition prayed for 1) the appointment of an attorney to represent the absent defendant, 2) for a writ of attachment, 3) for a money judgment and, 4) for maintenance of the writ and sale of the property attached. Although the citation in this action was addressed to Nolan Livestock, through the duly appointed attorney ad hoc, Joseph H. Simpson, the record of this proceeding shows personal service of a certified copy of the citation and of the petition was made on November 17, 1973 upon one Robert Smith. The record also shows a certified copy of the notice of seizure and notice to appoint an appraiser, listing the calves and the truck, was served upon Robert Smith, identified as being from Leopolis, Wisconsin and the truck driver for Nolan Farm. In addition, a notation found in the record, from which the official return apparently was prepared, completely identifies Robert Smith, gives the name and address of the person accompanying him, and notes the items attached.

George Reese, in furtherance of his representation of Nolan Livestock, proceeded to make the necessary contacts in Tangipahoa Parish. On December 20, 1973 counsel for Edwards wrote to Reese advising it did not appear they could settle the problem and asked Reese to file an answer. Reese did not file an answer but on February 1, 1974 a general denial was filed by Simpson in Edwards’ second suit, the one in which Simpson had been appointed. On the same day a hearing was held, with Simpson appearing as attorney ad hoc for the defendant, and judgment was rendered decreeing the writ of attachment be maintained and plaintiff’s lien and privilege resulting from judgment in the prior suit (docket number 43,213) be recognized and enforced. No money judgment - was rendered in this second action.

Pursuant to the rather confusing litigation above outlined, Edwards executed on his judgments by having the calves sold at Sheriff’s sale. A week later, on March 13, 1974, he entered into a “Release of Judgment” agreement with Nolan Livestock wherein the parties settled all their differences. This agreement apparently effected the release of the truck and, strangely, released George Reese from any negligence or damages “as a result of his handling of a defense of Bill Nolan Livestock, Inc.”

In September 1980, Nolan Livestock filed suit against Joseph Simpson alleging he had committed malpractice by breaching his professional and contractual duties. Simpson had allegedly failed to take any steps to contact Nolan Livestock in order to inform them of the suit in which he had been appointed attorney ad hoc and to inquire about potential defenses. Nolan Livestock stated it learned in October 1979 that Mr. Simpson had been appointed to represent it.

Defendant Simpson filed the peremptory exception urging the objection of prescription, as authorized by La.Code Civ.P. art. 927. A hearing was held on the matter, involving testimony relating more to the merits of the case than to the issue of prescription. Judgment was rendered sustaining the exception and the suit was dismissed. Nolan Livestock has appealed.

In oral reasons for judgment the trial court stated it was aware that in the usual situation in which a client retains an attorney the client has a cause of action in both tort and contract against the attorney for malpractice. Jackson v. Zito, 314 So.2d 401 (La.App. 1st Cir. 1975), writ refused 1975. Johnson v. Daye, 363 So.2d 940 (La.App. 3d Cir. 1978). The trial court refused to extend the contractual cause of action to the situation at hand, where the relationship was based not upon the mutual consent of the attorney and the client but only upon the court ordering the attorney to represent the nonresident client.

We agree with the trial court and therefore affirm. We are aware the attorney appointed by the court to defend a nonresident has the same general obligations toward the client as does a retained counsel. La.Code Civ.P. art. 5095. However, we do not interpret this article to mean the relationship between the attorney and the client is contractual in nature.

“Contract” is defined by Black’s Law Dictionary, Revised Fourth Edition (1968), as “A promissory agreement between two or more persons that creates, modifies, or destroys a legal relation.” The La.Civ.Code art. 1761 defines contract as follows: “A contract is an agreement, by which one person obligates himself to another, to give, to do or permit, or not to do something, expressed or implied by such agreement.” It is clear the essential ingredient of a contract is an agreement. When the court appoints an attorney to defend a nonresident there is no agreement between the attorney and the client. We feel it would be an aberration of the word “contract” to characterize such a relationship as being contractual.

We distinguish the situation in the present case from the typical attorney-client relationship where the attorney and client come together voluntarily and there is a meeting of the minds as to the purpose of the relationship. It is entirely logical that courts, as they did in Jackson, supra, and Johnson, supra, would afford a client a contractual remedy for certainly the relationship is one of contract.

If the allegations of the petition are true, the defendant may be responsible under a general tort theory. But there is no contractual liability because there was no contractual relationship. Just as a landowner owes a certain duty to all who come on the premises, a court appointed attorney owes a certain duty to the nonresident client he has been appointed to represent. But this duty arises strictly from the relationship of the parties rather than from any agreement on their behalf.

As an alternative argument Nolan Livestock contends even if the matter is not considered contractual, the doctrine of “contra non valentem agere nulla currit praes-cripto” should apply to prevent prescription from running during the period in which the corporation was unaware Mr. Simpson had been appointed to represent it. It is well settled this doctrine is not applicable simply because the plaintiff was ignorant of his rights. Martin v. Mud Supply Company, 239 La. 616, 119 So.2d 484 (1959), on rehearing 1960; Jackson, supra. These cases have made it clear the plaintiff must show the defendant has used concealment or fraudulent practices which lulled the plaintiff into a course of inaction to the prejudice of his rights. Nor may a plaintiff employ this doctrine when the ignorance of the facts has been caused by his own neglect. Henson v. St. Paul Fire and Marine Ins. Co., 363 So.2d 711 (La.1978), rehearing denied 1978.

The facts before us indicate Mr. Simpson may have failed to make a reasonable effort to contact Nolan Livestock about the suit. This omission, however, is not colored with deceit or fraud. However, the record also shows he talked to Mr. Nolan on the phone (when Nolan called seeking representation), refused to represent him, and failed to inform Mr. Nolan he had in fact already been appointed by the court as attorney ad hoc for Nolan Livestock. Such behavior may have given plaintiff the false impression there was no court appointment involved when Simpson knew there was such an arrangement.

However, we decline to allow plaintiff to use the doctrine because but for plaintiff’s own neglect, it would have learned immediately of Simpson’s court appointment. The citation served upon plaintiff’s truck driver, Robert Smith, stated clearly that Joseph H, Simpson of Amite, Louisiana was the court appointed attorney. The plaintiff corporation, through Bill Nolan, knew or should have known about this document. If Nolan did not discuss with Robert Smith the documents which had been served at the time the calves and truck were seized or did not ask that they be forwarded to him for review, he was indeed careless. Certainly, he needed to know everything possible about the court action which resulted in the drastic seizure of his livestock and truck. Also, after retaining George Reese, Nolan could have requested that he be informed of all aspects of the legal situation in Tangiphoa Parish. This undoubtedly would have resulted in the disclosure of Simpson’s appointment. Instead, Nolan chose not to rely entirely upon counsel but proceeded to negotiate directly with Edwards. Reese’s testimony makes this clear. We cannot escape the conclusion plaintiff’s own carelessness caused its ignorance of the facts.

Also, considering plaintiff’s early representation by George Reese, and assuming for the sake of argument defendant has used concealment or fraudulent practices which lulled plaintiff into a course of inaction, we cannot say defendant’s rights were thereby prejudiced. Several weeks before any judgment was rendered against plaintiff, Mr. Reese was actively involved and had been requested to file an answer on behalf of plaintiff. With retained counsel plaintiff was in a position to protect its rights, regardless of inaction on the part of Simpson or his failure to notify plaintiff of the pending suit. It is also significant that Simpson owed no duty to plaintiff in the first suit that had been filed, the suit in which the money judgment was rendered and which later served as the basis for execution against the seized livestock. For this additional reason, the doctrine of “contra non valentem” is inapplicable.

Since this matter is strictly tortious and the tort occurred in 1973, prescription had clearly run by the time suit was filed in 1980. La.Civ.Code art. 3536. The judgment of the trial court is affirmed. Plaintiff-appellant is to pay all costs.

AFFIRMED.

      . Resolution of this issue is determinative of the applicable prescriptive period.

      . For some unexplained reason, counsel for Edwards had already taken a default judgment (on January 25, 1974) which apparently was ignored or was set aside by the court. There is no explanation contained in the record.

      . No prescription runs against a person unable to bring an action.


text:
    Angelina AUTIN, et al. v. ALLSTATE INSURANCE COMPANY.
    No. 14269.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.
    Velma O’Neal and Robert J. Mack, Hammond, for plaintiffs-appellants.
    Joseph Keogh, Baton Rouge, for defendant.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Plaintiffs appealed from the judgment awarding damages for injuries sustained in an automobile collision.

The sole issues are quantum and the alleged failure to award expenses to the husband.

We affirm.

Mrs. Angelina Autin was the driver of the car. Her daughter, Mrs. Margaret Cos-ta, and the latter’s daughter were guest passengers. Mrs. Autin sued for her damages. Joseph Autin, her husband, sought reimbursement of expenses. Mrs. Costa sought damages and expenses for herself and her daughter. Defendant, Allstate Insurance Company, was the insurer of the offending vehicle.

In the afternoon, hours after the accident, Mrs. Autin, Mrs. Costa, and Margaret sought medical treatment at the Seventh Ward Hospital Emergency Room, but were refused admission to the hospital and referred to their family physician. The family physician was out of town, and Dr. Daley examined them.

Mrs. Costa and Mrs. Autin testified that Dr. Daley, who did not testify, said that the plaintiffs were “all shooken up” and prescribed muscle relaxants for the two adults. There was no indication of any treatment for injuries to the child.

The next day, plaintiffs consulted Dr. Alexander Feder, who diagnosed Mrs. Autin as suffering from an acute sprain of the cervical neck and a sprain of the lumbo-sacral back. Mrs. Costa was diagnosed as having incurred a mild cervical sprain and an acute lumbosacral sprain. Muscle relaxants and tranquilizers and a treatment of physiotherapy and ultra-sound were prescribed. Dr. Feder found no objective signs of injury in the child and discharged her on the second visit, stating that he “didn’t feel justified in treating the child.”

Mrs. Autin and Mrs. Costa were finally discharged without any permanent damage or residual effects.

The trial jury returned a verdict in favor of both Mrs. Autin and Mrs. Costa, each in the sum of “$1,000.00 plus doctor expenses and out of pocket expenses.” There was a finding of no injury and no award was made with respect to the child. No award was made to Mr. Joseph Autin for his medical expenses.

Plaintiffs sought a new trial, complaining of: (1) the amount of the general damage awards to Mrs. Autin and Mrs. Costa; (2) the failure of the jury to award any damages to the child; and (3) the absence of any award to Mr. Autin for medical expenses incurred by him.

In Reck v. Stevens, 373 So.2d 498 (La.1979), the Supreme Court stated:

“[T]he initial inquiry must always be directed at whether the trier court’s award for the particular injuries and their effects upon this particular injured person is, a clear abuse of the trier of fact’s ‘much discretion,’ La.Civ.C. art. 1934(3) in the award of damages. It is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review, for articulated reason, be considered either excessive, Carollo v. Wilson, 353 So.2d 249 (La.1977); Schexnayder v. Carpenter, 346 So.2d 196 (La.1977), or insufficient, Olds. v. Ashley, 250 La. 935, 200 So.2d 1 (1967).” [Footnote omitted.]

The evidence indicates slight injury, some stiffness, and some pain in both Mrs. Autin and Mrs. Costa. We believe, considering Dr. Feder’s testimony and the lack of other evidence substantiating severe injury, that the jury’s finding was reasonable. Hence, we do not reach a review of awards in other cases. There was no abuse of discretion on this point. Reck v. Stevens, supra; Paine v. Checker Cab Co., Inc., 343 So.2d 380 (La.App. 4th Cir. 1977); Engolia v. Cumis Ins. Co., Inc., 383 So.2d 1055 (La.App. 1st Cir. 1980).

The same reasoning applies to the absence of an award for the child. The doctor’s testimony that he found no injury and discharged the child saying he did not feel “justified in treating the child” formed a sufficient basis for the jury’s finding of no injury.

The appellant’s assignment of error that no award was made to Mr. Autin for losses to the community is unavailing. The court on September 15, 1980, clarified the jury’s award by allocating $1,000.00 to Mrs. Autin and $810.99 to Mr. Autin. The appellant’s assertion that the jury’s omission of an award to Mr. Autin showed it did not understand its duties is also without merit. The jury clearly indicated that it intended the losses be paid. The court has corrected the inappropriate method of making the award.

For the above and foregoing reasons, we find that the trial judge did not abuse his discretion in refusing to grant a new trial. Hardy v. Kidder, 292 So.2d 575 (La.1974); Leon McQueen Lbr. Co., Inc. v. Baer, 391 So.2d 1198 (La.App. 1st Cir. 1980).

Therefore, for the reasons hereinabove set forth, we affirm the judgment. Plaintiffs are to pay all costs of this appeal.

AFFIRMED.


author: ELLIS, Judge.

text:
    Lowell OUBRE and Evelyn Oubre v. FIREMAN’S FUND AMERICAN INSURANCE COMPANY, et al.
    No. 14276.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.

      Victor L. Marcello, Talbot, Sotile, Car-mouche, Waguespack & Marchand, Donald-sonville, for plaintiff and appellee.
    Robert W. Smith, Seale, Smith & Phelps, Baton Rouge, for defendants and appellants.
    Robert D. Hornstein, Breaux & Horn-stein, St. Gabriel, for defendant and appel-lee.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge.

This is a quantum case. Defendant Kelly J. Breaux, Jr., complains that the award to plaintiff of $12,000.00 for pain and suffering is excessive. The record shows that plaintiff Evelyn Oubre was injured in an automobile accident on March 31, 1978. The accident happened about 4:15 p.m. and by 6:00 o’clock that evening Mrs. Oubre was suffering pain in her back, neck and head. She was unable to turn her head.

The next morning she saw Dr. Folse in the emergency room at East Ascension General Hospital. Dr. Folse took x-rays of her head and neck, prescribed muscle relaxants and gave plaintiff a cervical collar, which she wore continuously for five weeks. On April 5, 1978, plaintiff saw Dr. Wade H. Sigmon, Jr., a family practitioner, complaining of pain in her neck and shoulder, through her lower back. He found tenderness in the muscles of her neck and moderate tenderness in the muscles of the low left lumbar area. His diagnosis was multiple muscle strain of all of the above areas. Dr. Sigmon prescribed moist heat and muscle relaxants.

Dr. Sigmon continued to see plaintiff at intervals for several months, during which time her condition slowly improved. Through August 25, 1978, Dr. Sigmon’s notes show complaints of pain in the neck area, but no mention of back problems. On September 19, plaintiff complained of intermittent pain in her lumbar area. Plaintiff testified at the trial that her back pain continued throughout that time.

On October 23, 1978, plaintiff was seen again, after having taken physical therapy for a week, complaining only of tightness in the neck when turning her head to the left. Dr. Sigmon did not see her again until March 7,1979, when she complained of lumbar backache, radiating down her right leg. Dr. Sigmon felt there was a possibility of nerve root irritation, which he felt would be “most probably” related to the accident. He saw her again in July, 1979, and August, 1979, on both occasions complaining of back and hip pain. He prescribed muscle relaxants, traction and heat.

She was seen again on March 23, 1980, with back and right leg pain. She said that the therapy given her in August had relieved most of her complaints for about three months, but that they had recurred. Dr. Sigmon felt she was suffering from a chronic lumbosacral strain.

Plaintiff also saw Dr. Allan Jackson, an orthopedist, on September 15, 1978, at Dr. Sigmon’s request. He felt that, at that time, she had residuals of neck and back sprain, which Dr. Jackson did not consider to be disabling. He prescribed a course of physical therapy.

Plaintiff returned to Dr. Jackson in March, 1979, complaining of an acute recurrence of her back problems, with pain radiating down the right leg to her ankle. He felt this to be indicative of nerve root irritation. He once again prescribed a course of physical therapy. Mrs. Oubre returned on April 16, 1979, improved but still complaining of occasional disabling back pain. She was given a muscle relaxant, and told to perform certain exercises.

Dr. Jackson last saw plaintiff on May 7, 1979, much improved, with no signs of nerve root irritation. He told her to continue the muscle relaxants, and felt no immediate follow up was required. He felt that the recurrence of her back problem was “probably related to the automobile accident.” Dr. Jackson was of the opinion that Mrs. Oubre was suffering from a chronic neck and back sprain, but that her prognosis for a complete recovery was favorable.

After the accident, Mrs. Oubre stayed off work completely until August, when she worked one day. Prior to the accident, Mrs. Oubre had worked part time as a licensed practical nurse, averaging about seven days per month. She returned to this employment in the middle of September, 1978. She testified that she has suffered from intermittent neck and back pain since that time, up until the time of the trial, in June,

1980.

The trial judge found that Mrs. Oubre had suffered a moderate lumbar and cervical strain of fairly long-standing duration, and that her suffering therefrom was of sufficient severity to justify an award of $12,000.00. In this court, defendant argues that the award is excessive, and suggests that $7,500.00 would be appropriate.

After consideration of the record, and the authorities cited by both parties, we find that the award of $12,000.00 is within the discretion afforded the trial judge in fixing quantum.

The judgment appealed from is therefore affirmed, at defendant’s cost.

AFFIRMED.


text:
    Mrs. Lollie Mae MARCUM v. INTER-OCEAN INSURANCE COMPANY.
    No. 14521.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.
    Robert J. Mack, Hammond, for plaintiff.
    Alton Lewis and Tom Matheny, Hammond, for defendant-appellant.

      Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This matter is before this court on a motion by plaintiff-appellee to dismiss the appeal of Inter-Ocean Insurance Company on the ground that the record was not timely filed.

From the record and briefs we glean the following facts. Judgment was rendered on June 16, 1980 and signed on October 31, 1980. Defendant timely perfected a sus-pensive appeal on December 1, 1980. The appeal was made returnable to this court on February 27, 1981. On February 20, 1981, the clerk of the trial court requested an extension of the return date because the costs had not been paid. This request was denied by the trial court. Costs were paid on April 16, 1981, and on April 21, 1981, the record was lodged with this court.

Plaintiff-appellee relies on La.C.C.P. art. 2161, Bennett v. Johnston, 333 So.2d 693 (La.App. 4th Cir. 1976) and Bensel v. Goitia, 329 So.2d 233 (La.App. 4th Cir. 1976).

However, we need look no further than La.C.C.P. art. 2126. This Article sets out in detail the scenario of the estimation of costs by the clerk of the trial court, the payment by appellant, the right to question the ex-cessiveness of the estimated costs and the penalties which may be imposed by the trial court when costs are not paid timely. In the last unnumbered paragraph thereof, we find:

“If the appellant pays the costs required by this Article, the appeal may not be dismissed because of the passage of the return day without an extension being obtained or because of an untimely lodging of the record on appeal.” (Emphasis supplied).

Therefore, it is clear that since the costs have been paid, this appeal cannot be dismissed.

We observe that under La.C.C.P. art. 2088(9) the trial court retains jurisdiction to “impose the penalties provided by Article 2126, or dismiss the appeal, when the appellant fails to timely pay the estimated costs or the difference between the estimated cost and the actual cost of the appeal.” We question seriously whether the clerk of the trial court would send up a record on appeal without the cost being paid. The proper remedy for the appellee is to proceed in the trial court in seeking the dismissal of an appeal for the failure to pay cost.

Therefore, for the above and foregoing reasons, motion to dismiss the appeal is denied at plaintiff-appellee’s costs.

MOTION DENIED.


text:
    STATE of Louisiana In the Interest of Wendy Shannon STORM, Cindy Lynn Storm, Jamie Christine Storm and Peter Andrew Storm.
    No. 14544.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.

      Fannie E. Burch, Amite, for respondent-appellee-mover.
    Curtis M. Baham, Jr., Hammond, for appellant.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Mover, Sandra Chatham Storm, seeks to dismiss an unlodged appeal taken by James Christopher Storm. Mover alleges that the appeal is from a juvenile court judgment in which the court did not have subject matter jurisdiction.

Because no record has as yet been lodged in this court, we have no way of knowing whether mover’s allegations have any merit. Therefore the motion to dismiss is denied, reserving to mover the right to refile when and if the record is lodged. All costs of this motion are to be paid by Sandra Chatham Storm.

MOTION DENIED.


text:
    Henry COLLINS, et ux. v. CAPITAL VALVE AND FITTING, INC., et al.
    No. 14560.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.
    Writ Granted Sept. 28, 1981.
    Joseph A. Gladney and Associates, Joseph A. Gladney, James W. Murray, Baton Rouge, for plaintiffs.
    James B. Doyle, Baton Rouge, for defendants-appellants.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

This is a suit in tort for damages resulting from an automobile accident. From a judgment of the trial court overruling a plea of prescription, defendants applied for writs of Prohibition, Certiorari, and Mandamus. We issued an Alternative Writ. The trial court elected the alternative, maintaining its ruling is correct.

The sole issue is interruption of prescription. We make the writ peremptory.

Plaintiff, Clara Collins, was injured in an automobile accident October 3, 1979. In December, 1979, defendants’ insuror issued a draft in the name of both Henry and Clara Collins in payment for property damage to the automobile. Plaintiffs filed suit for Mrs. Collins’ medical expenses, lost wages and personal injuries on October 23, 1980. The trial court first sustained a plea of prescription but then overruled it on rehearing. Relying on the rationale of Flowers v. United States Fidelity and Guaranty Company, 381 So.2d 378 (La. 1980) and Richardson v. Louisiana Farm Bureau Mutual Insurance Company, et al, 393 So.2d 200 (1st Cir. 1981), the court held that payment jointly to the husband and wife for property damage to the automobile was a tacit acknowledgment of all claims by both plaintiffs.

Defendants argue the trial court erred in interpreting Flowers and Richardson too broadly. We find defendants’ claim has merit. The court in Flowers held that payment to the husband of part of the medical expenses acknowledged the indebtedness only for the remainder of medical expenses, but did not interrupt prescription of the wife’s claim for personal injuries.

We decline to further extend the narrow holding of Flowers. The payment to Mr. and Mrs. Collins was acknowledgment of the community’s claim for property damage.

For the above reasons, it is ordered that the writ be made peremptory. The lower court is ordered to sustain defendants’ plea of prescription and dismiss plaintiffs’ suit at their costs.

WRIT MADE PEREMPTORY.

      . “Accordingly, the claims adjuster's acknowledgment of Mr. Flowers’ right to reimbursement for medical expenses did not interrupt prescription of his wife’s separate right to damages for her personal injuries.” Flowers v. U. S. Fidelity Guaranty Co., supra at page 383.


text:
    SOUTHERN MOSAIC TILE, INC. v. Marion J. ALESSI d/b/a Alessi.
    No. 14579.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.

      William D. Beck, Jr., Baton Rouge, for plaintiff-appellee Southern Mosaic Tile, Inc.
    Patrick F. McGrew, Baton Rouge, for defendant-appellant Marion J. Alessi d/b/a Alessi.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

Southern Mosaic Tile, Inc., plaintiff-ap-pellee, has moved to dismiss the suspensive appeal on the ground that no timely appeal bond was filed by the defendant-appellant, Marion J. Alessi d/b/a Alessi. Appellant has answered the motion asking that the appeal be maintained as devolutive.

Judgment was rendered by the trial court and notice was issued on March 11, 1981. The order of appeal and the notice of appeal were signed and issued on April 9, 1981.

Appellant did not apply for a new trial and the delay expired on March 20, 1981. La.C.C.P. Art. 1974. The delay for obtaining a suspensive appeal and furnishing security expired on April 20, 1981. La.C.C.P. Art. 2123. The appeal bond was not furnished until April 23, 1981.

The timeliness of the signing of the order of appeal and the filing of the appeal bond is jurisdictional. An appellate court does not acquire jurisdiction of a suspensive appeal unless the order is obtained and the bond is filed within the prescribed time. La.C.C.P. Art. 2088.

Since the appellant did not timely perfect the suspensive appeal by the timely filing of security, the suspensive appeal must be dismissed. Cox v. Southern Colonial Inv., Inc., 393 So.2d 146 (La.App. 1st Cir. 1980).

Nevertheless, since appeal bonds are no longer required for devolutive appeals under La.C.C.P. Art. 2124, and appellant has fulfilled all the requirements for a de-volutive appeal, we will maintain this appeal as devolutive. Cox, supra.

For these reasons, the motion to dismiss the suspensive appeal is granted at appellant’s costs, but we retain jurisdiction to review this matter as a devolutive appeal. Appellant is entitled to the return of the security furnished.

MOTION TO DISMISS SUSPENSIVE APPEAL GRANTED.

DEVOLUTIVE APPEAL MAINTAINED.


text:
    Clifton E. KINSEY v. TRAVELERS INSURANCE COMPANY, INC.
    No. 14591.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.

      D. Douglas Howard, Jr., T.A., New Orleans, for Clifton E. Kinsey.
    France W. Watts, III, Franklinton, for Travelers Insurance Co.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

A writ of certiorari was issued herein to review the correctness of the trial court’s judgment denying plaintiff Clifton E. Kinsey’s rule to show cause why defendant workmen’s compensation insurer, Travelers Insurance Company, Inc., should not provide a letter of financial responsibility to plaintiff’s doctor.

Plaintiff was injured on November 21, 1978, and received compensation payments to July 1, 1980. Suit for total and permanent disability was filed on October 23, 1980. Thereafter, according to plaintiff’s brief, compensation payments were resumed by the defendant insurer. The controversy arose because defendant did not want to pay plaintiff’s choice of doctor for treatment. Plaintiff filed a rule for defendant to be responsible for medical expenses to be incurred with the doctor of his choice. Defendant in brief states it is willing to pay for treatment by any one of eight other named doctors.

At the hearing on the rule to show cause the minutes of the trial court reflect the following stipulation:

“Workmen’s compensation patient is in pain and should see Dr. Llewellyn and condition is that Travelers Insurance will not give him a blank check for all medical, but will back up bills for Dr. Llewellyn’s examination.”

The trial court’s discussion stated that the insurer need not provide a letter of financial responsibility prior to a determination of disability on the merits citing Hartsell v. Hooker Chemical Corporation, 266 So.2d 480 (La.App. 4th Cir. 1972).

Louisiana Revised Statute Title 23, Section 1203, provides in pertinent part:

“In every case coming under this Chapter, the employer shall furnish all necessary medical, surgical and hospital services, and medicines, or any nonmedical treatment recognized by the laws of this state as legal.”

Under this statute the injured employee is entitled not only to all necessary medical and nonmedical treatment which will serve to cure his disability, but he is also entitled to all such treatment as is necessary to relieve the pain which he suffers as a result of his disability. Gourdon v. Rockwood Ins. Co., 368 So.2d 1156 (La.App. 3rd Cir. 1979).

As per the stipulation, plaintiff still suffers pain from his injury and defendant is not contesting the necessity for further medical treatment. The question then is, who has the right to choose the treating physician — the employer or the employee? The workmen’s compensation act is silent on this question. As stated above, the defendant stipulated that the plaintiff is in pain and it is willing to be financially responsible for any one of eight other physicians but not for the physician plaintiff has selected to treat him. As defendant puts it, “He is a plaintiff’s doctor.”

The only case on this issue was pointed out in Malone and Johnson’s treatise of Worker’s Compensation. 13 Civ.L.Tre. § 287, p. 672. In Boss v. Marquette Casualty Company, 150 So.2d 67 (La.App. 3rd Cir. 1963) cert. denied 244 La. 220, 151 So.2d 692, the court did not directly decide this issue but did allow recovery for expenses incurred for treatment by a doctor the employer had instructed claimant not to see. The court stated:

“There is no contention made here that the employer has a primary right to choose the physician who will treat the employee for his injuries. The sole contention of defendant, as regards medical services, is that the employer is not liable for services rendered the employee by a certain named physician, when the employer has informed the employee, in advance of treatment furnished by this physician, that the employee can go to any doctor he chooses, except the named physician.
“The present record shows that the employee went to three other physicians without obtaining relief before he reported to Dr. DeBlanc, who is also his own family physician, and that he thereafter obtained satisfaction under Dr. DeBlanc’s treatment. There is no contention that the fees of Dr. DeBlanc were unreasonable or the treatment unnecessary.”

In their treatise, Malone and Johnson adopt the view that the employee should have the right to choose the physician of his choice for treatment and justify their view in the following manner:

“In view of the fact that the success of treatment may depend upon the patient’s confidence in the physician chosen, it is suggested that the primary right of choice should rest with the patient, unless his choice is shown to be unreasonable, or solely for the purpose of tactical advantage at trial. The right of primary choice may be an important one in view of the fact that on trial the opinion of the treating physician is frequently preferred over that of other experts.”

Malone and Johnson, supra, p. 672.

In view of the above case and statement, we hold the rule to be that the injured employee is entitled to choose the physician for treatment of his disabling injury. The trust and confidence needed in a patient-doctor relationship is important to successful treatment which can be best obtained if the injured employee has the choice of physician for treatment purposes.

In this instance, the plaintiff is entitled to seek treatment for the pain he is experiencing in his right arm and wrist from Dr. Llewellyn. In addition, defendant should furnish a letter of financial responsibility to Dr. Llewellyn, since this is an essential requirement for furnishing all necessary medical services. Wilson v. Ebasco Services, Inc., 393 So.2d 1248 (La. 1981).

For these reasons, a writ of mandamus is issued herein ordering the trial court to recall and vacate its previous judgment and to order the defendant, Travelers Insurance Company, to issue a letter of financial responsibility to Dr. Llewellyn for treatment of plaintiff. Costs of this writ are to be borne by the defendant.

WRIT OF MANDAMUS ISSUED.