text:
    Sol KAPLAN et al. v. UNIVERSITY LAKE CORP. et al. GUARANTY SAVINGS ASSURANCE COMPANY v. NATIONAL AMERICAN BANK OF NEW ORLEANS as Executor of the Succession of Seymour Weiss.
    Nos. 11934, 11935.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 5, 1981.

      Avant, Wall, Thomas, Riche & Falcon, Floyd J. Falcon, Jr., T. A., Baton Rouge, for Guaranty Savings Assurance Co., plaintiffs-appellants.
    Stewart & Preis, Ashton L. Stewart, Baton Rouge, Burke & Mayer, Charles Mayer, New Orleans, for National American Bank of New Orleans, As Executor of The Succession of Seymour Weiss, defendant-appel-lee.
    Before SAMUEL, GULOTTA and CHE-HARDY, JJ.
   GULOTTA, Judge.

In these consolidated suits, Guaranty Savings Assurance Company (G.S.A.) appeals from a judgment enjoining its execution of a Writ of Fieri Facias and a garnishment directed against the National American Bank of New Orleans as executor for the Succession of Seymour Weiss, and also from a judgment, in a separate proceeding, maintaining an exception of lis pendens dismissing G.S.A.'s separate suit for the proceeds of a judicial sale. We affirm the judgment granting the preliminary injunction in one of the two consolidated suits and reverse the judgment maintaining the exception of lis pendens.

BACKGROUND

University Lake Corporation borrowed funds from the American Bank for the purchase of 15.19 acres of land in East Baton Rouge Parish. The loan was evidenced by a $144,000.00 hand note and secured by a collateral mortgage note and mortgage. The note was apparently pledged to the bank. Thereafter, on June 24, 1966, Seymour Weiss purchased the hand note and collateral mortgage. G.S.A. then purchased the property from University Lake on June 15, 1971 and assumed the mortgages, judgments and liens extant against the property. Following default on the notes on November 15, 1974, suit was filed by Kaplan and the National American Bank (the Bank), as executors of the Succession of Seymour Weiss. A judgment was rendered in favor of the executor and against University Lake Corporation, International Speedways, Inc. and Guaranty Savings Assurance Company, in solido, in the sum of $132,000.00 and enforcement of the collateral mortgage bearing against the property was ordered. This judgment was rendered on June 6,1978. Only G.S.A. took a devolu-tive appeal from that judgment. Pending the appeal, in satisfaction of the judgment, the property owned by G.S.A. was seized and sold for the sum of $242,458.18.

The Louisiana Supreme Court in Kaplan v. University Lake Corp., 381 So.2d 385 (La.1979), reversing the trial court’s judgment, held that the collateral mortgage note bearing against G.S.A.’s property had prescribed and the mortgage was unenforceable. In the original Supreme Court opinion, the court had concluded that the hand note and the original obligation which G.S.A. assumed in its act of sale had “legal validity.” However, on rehearing, the Supreme Court set aside that part of its original holding that had made G.S.A. liable upon the hand note and exonerated G.S.A. from any liability. The effect of the Supreme Court decision, on rehearing, is that the mortgage is unenforceable and G.S.A. is not liable either under the mortgage or under the hand note. Unfortunately, however, at the time of the rendition of the Supreme Court judgment reversing the trial court’s judgment, G.S.A.’s property had been sold in execution of the trial court’s decree.

Following the Supreme Court judgment, G.S.A. in one of the two consolidated suits, now before us on appeal, petitioned the Civil District Court in New Orleans to make the Supreme Court judgment executory in Orleans Parish, and sought a fifa and garnishment of funds in possession of National American Bank belonging to the Succession of Weiss in an amount to satisfy payment to G.S.A. of the $242,458.18 realized from the seizure and sale of the property. At this point G.S.A. had not filed suit against the Weiss succession to recover the amount realized from the sale but sought to execute against the National American Bank as executor solely on the basis of the Supreme Court’s judgment annulling and setting aside the trial court’s judgment.

G.S.A.’s petition for garnishment against National American Bank as executor of the Weiss’ succession was met by a petition for injunctive relief filed by the Bank. The trial judge on May 7, 1980 enjoined G.S.A. and the sheriff for the Parish of Orleans from proceeding with the execution with a Writ of Fieri Facias and revoked the garnishment against the Bank. In written reasons for judgment the trial judge stated:

“Guaranty Savings Assurance Company must proceed to obtain a money judgment against National American Bank of New Orleans, as executor of the Succession of Seymour Weiss, for a specific amount before they can proceed by Writ of Fieri Facias and garnishment.”

G.S.A. devolutively appealed from that judgment. This appeal is one of the two consolidated appeals now before us.

Two days following the trial court’s judgment revoking the garnishment and enjoining the execution of the fifa, G.S.A., in a separate suit, apparently in response to the reasons for judgment assigned in the earlier suit, filed a petition against National American Bank as executor for the sum of $242,-458.18, the proceeds of the sheriff’s sale. A declinatory exception of Lis Pendens was maintained in the trial court and G.S.A.’s suit was dismissed. In written reasons the trial judge stated, in pertinent part,

“... Considering the facts and evolution of this matter, this court believes that Guaranty is entitled to recover these proceeds by virtue of the Supreme Court’s Judgment. A bond in an amount sufficient has been posted by the Executor in the garnishment proceedings to support the injunction. That matter is on appeal to the Fourth Circuit.
The pendency of that proceeding, and the existence of a sufficient bond, satisfied the Court that the Exception should be maintained in order to avoid a multiplicity of suits.”

G.S.A. has appealed from that judgment. This appeal is the second of the two consolidated appeals now before us.

Claiming the judgments rendered by two different trial judges are contradictory, G.S.A. seeks relief from either or both of those judgments.

APPEAL FROM JUDGMENT ENJOINING EXECUTION OF FIFA AND REVOKING GARNISHMENT

At the outset, we find merit in the Bank’s argument that G.S.A. is required to obtain a judgment against the Bank as executor in the amount of $242,458.18 before a Writ of Fieri Facias and garnishment can be issued. We do not interpret, as claimed by G.S.A., that the Supreme Court judgment can serve as the basis for the issuance of a fifa and garnishment without the filing of a separate suit and obtaining a judgment for the amount claimed. The Supreme Court decree did not adjudge G.S.A. as a creditor but merely opened the door for the filing of a suit by G.S.A. to obtain a judgment for the amounts claimed.

LSA-C.C.P. art. 2252 provides:

“A judgment creditor may proceed with the execution of a judgment only after the delay for a suspensive appeal therefrom has elapsed.”

Footnote “d” under this Codal provision states:

“Where property is sold under a writ of fieri facias and the judgment is subsequently reversed after a devolutive appeal, the validity of the sale is not affected by subsequent reversal of the judgment, and the defendant-appellant’s only remedy is to sue the original judgment creditor for the return of the price for which the property was sold. Bomarito v. Barnett Furniture Co., 177 La. 1010, 150 So. 2 (1933); State v. Mutual Inv. Co., 214 La. 356, 37 So.2d 817 (1948) (Emphasis added)

See also, Lisi Realty, Inc. v. Plaisance, 306 So.2d 920 (La.App. 1st Cir. 1974), writ denied, 310 So.2d 640 (1975) where our brothers on the First Circuit cited with approval sub-paragraph “d” of the official revision comments under LSA-C.C.P. art. 2252. See also, Jackson v. D’Aubin, 316 So.2d 476 (La.App. 1st Cir. 1975).

Based on the above, we conclude the trial judge properly enjoined G.S.A. from proceeding with the execution of the Writ of Fieri Facias and properly revoked the garnishment.

APPEAL FROM JUDGMENT MAINTAINING EXCEPTION OF LIS PENDENS

In support of the trial court’s judgment upholding the exception of lis pendens, the Bank argues that at the time G.S.A. filed its suit in Orleans Parish for the sale proceeds, two other suits by G.S.A. against the Bank on the same cause of action were pending in Louisiana courts. According to the Bank, the first suit was filed in East Baton Rouge Parish by G.S.A. against J. A1 Amiss (the parish sheriff), the Bank (as executor of Weiss’ estate) and John Doe, (the then unknown vendee of the property at the sheriff’s sale) for $1,323,000.00 in damages. The second-pending suit is that filed by G.S.A. in Orleans Parish and consolidated on this appeal to make the Supreme Court judgment in Kaplan v. University Lake, supra, executory and to enforce it by a Writ of Fifa. Because we find merit to G.S.A.’s argument that these two suits assert causes of action different from that in the third-filed suit for the sale proceeds, we conclude the exception of lis pendens should have been dismissed.

LSA-C.C.P. art. 531 provides:

“When two or more suits are pending in a Louisiana court or courts on the same cause of action, between the same parties in the same capacities, and having the same object, the defendant may have all but the first suit dismissed by excepting thereto as provided in Article 925. When the defendant does not so except, the plaintiff may continue the prosecution of any of the suits, but the first final judgment rendered shall be conclusive of all.”

An exception of lis pendens, therefore, is properly maintained where the suits are 1) between the same parties in the same capacities; 2) for the same object; and, 3) on the same cause of action. In the instant appeal, the cases involve the same parties in their same capacities but have different objects and involve different causes of action.

The first-filed suit by G.S.A. against Sheriff Amiss is on an entirely different cause of action from its suit against the Bank for the proceeds of the sale. Our examination of the petition in the Amiss suit, a copy of which is in the record before us, discloses that the Amiss action was filed prior to the judicial sale. Amiss is named as the principal defendant and the Bank is alleged to have acted in concert with him. The then unknown vendee of the property at the judicial sale is also made a party defendant. The allegations are that the judicial sale was improperly advertised and the property improperly appraised. The petition prays that the sale be declared a nullity or, alternatively, that $1,323,000.00 damages be paid by Amiss and the Bank, or, alternatively, that G.S.A. be awarded the sale proceeds as part of the damages.

In the second-filed suit, G.S.A. seeks to make the Supreme Court’s judgment in Kaplan v. University Lake, supra, executory and also seeks to execute on that judgment.

On the other hand, the third-filed suit (in which the lis pendens was maintained) for the sale proceeds in the amount of $242,-458.18 is not against Amiss or the vendee of the property but only against the Bank. It is a post-sale action based not on advertisement irregularities but on the illegal seizure and sale of the property by the Bank while G.S.A.’s devolutive appeal from the foreclosure was pending. It also does not seek execution of a judgment as does the second-filed suit.

Clearly, the parties and the causes of action involved in these three suits are not the same. In Willswood Plantation, Inc. v. Foret, 314 So.2d 409 (La.App. 4th Cir. 1975), writ denied, 320 So.2d 553 (La.1975), we stated that mere identity of issues is not sufficient to support a plea of lis pendens. The causes of action and the object of the suits must be the same. Although some of the issues in our cases may be the same, nonetheless the objects and causes of actions are different. Accordingly, we cannot conclude that the exception of lis pendens was properly maintained.

In brief and in oral argument, the Bank contends that upholding the lis pen-dens exception was proper since none of G.S.A.’s three suits asserts a cause of action and all are “identical” in this respect. In support of this contention the Bank cites LSA-C.C.P. art. 3741 and argues that under the pact de non alienando of its mortgage it could foreclose against the mortgaged property in execution of its judgment against University Lake, the original debtor, “.. . as though it was still owned by the original debtor and in his possession.” The Bank contends that G.S.A. as a third party possessor has no cause of action arising from the judicial sale since the foreclosure and sale of the property were in execution of the Bank’s judgment against University Lake. The Bank further argues that Kaplan v. University Lake, supra, has no bearing on our case since the Kaplan decision only dealt with G.S.A.’s liability on the hand and mortgage notes and not with the Bank’s right to enforce the mortgage against University Lake. We disagree.

The Bank’s argument concerning the pact de non alienando presupposes that a valid mortgage existed. The Supreme Court in Kaplan v. University Lake, supra, on G.S. A.’s appeal from a judgment in favor of the Bank and against G.S.A., University Lake, and International Speedways, Inc., held that the mortgage was unenforceable because the collateral mortgage note had prescribed. As stated by the Supreme Court:

“We find and hold, therefore, that upon prescription of the collateral mortgage note, there remained no outstanding mortgage against subject property. Consequently, the mortgage herein sought to be enforced was not extant against the property on the date of G.S.A.’s purchase.” Kaplan v. University lake, supra, at page 391.

In view of this clear language, the Bank as executor of Weiss’ estate had no mortgage to enforce against either University Lake or G.S.A. when it foreclosed and brought about the judicial sale. Without a valid mortgage, LSA-C.C.P. art. 3741 does not apply. It is clear to us that G.S.A. is the owner of the property that has been illegally seized and sold by the Bank pursuant to a mortgage that was ultimately determined invalid by the Supreme Court.

We point out further that the Bank’s argument concerning the pact de non alien-ando really addresses itself to an exception of no cause of action rather than an exception of lis pendens. Nonetheless, because the Bank’s arguments were raised in connection with the exception of lis pendens, we have considered them as raised.

Although we reverse and set aside the judgment maintaining the exception of lis pendens, we note that the action of the trial court has had the beneficial effect of holding these matters in status quo until such time as this court could rule on these appeals.

DECREE

Having so concluded, we affirm in No. 11934 of the docket of this court, Sol Kaplan, et al. v. University Lake Corporation, et al., the judgment of the trial court that enjoins G.S.A. from proceeding with the execution of the Writ of Fieri Facias and revokes the garnishment against the National American Bank of New Orleans as executor of the Succession of Seymour Weiss. Costs to be paid in this matter by Guaranty Savings Assurance Company.

In No. 11935, Guaranty Savings Assurance Company v. National American Bank of New Orleans As Executor of The Succession of Seymour Weiss, we reverse and set aside the judgment of the trial court maintaining the exception of Lis Pendens and dismissing Guaranty Savings Assurance Company’s suit. We remand this matter to the trial court for further proceedings consistent herewith. Costs in this matter to be paid by the National American Bank of New Orleans as Executor of the Succession of Seymour Weiss. Costs incurred in future proceedings to await the outcome of litigation.

JUDGMENT ENJOINING EXECUTION AFFIRMED.

JUDGMENT MAINTAINING LIS PEN-DENS REVERSED.

REMANDED.

      . Sol Kaplan, one of the plaintiffs in this suit, also is an executor of the Succession of Seymour Weiss along with the National American Bank.

      . The transactions and property, as well as the earlier litigation involving these parties and referred to hereinabove, occurred in the Parish of East Baton Rouge.

      . An amended judgment signed by the trial judge on May 8, 1980 ordered the National American Bank as executor to post a bond in the amount of $243,000.00.

      . LSA-C.C.P. art. 3741 provides:
      “Art. 3741. Right of enforcement.
      A legal mortgage, after judgment on the original obligation has been obtained, a judicial mortgage, or a conventional mortgage may be enforced without reference to any alienation or transfer of the mortgaged property from the original debtor, and the creditor may cause the property to be seized and sold as though it were still owned by the original debtor and in his possession.”

      . The Bank, in supplemental brief, recognizes that its arguments raised in its original brief and oral argument are more properly supportive of an exception of no cause of action than an exception of lis pendens.


source: Caselaw Access Project

author: GULOTTA, Judge. SAMUEL, Judge,

license: Public Domain

text:
    Audrey RENFROE, Surviving Spouse of Anthony Polito, Individually and on Behalf of the Dependent Minors, Frank Joseph Polito and Samuel Wayne McLellan v. CITY OF NEW ORLEANS, General Motors Corporation and the Royal Globe Indemnity Insurance Company.
    No. 12002.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 5, 1981.
    Rehearing Denied March 16, 1981.

      Dalton, Gillen & Roniger, Gregory W. Roniger, Jefferson, for plaintiffs-appellees.
    Turner & Young, George P. Hebbler, Jr., New Orleans, for defendants-appellants.
    Before SAMUEL, GULOTTA and CHE-HARDY, JJ.
   GULOTTA, Judge.

Defendants, General Motors Corporation and its insurer, appealing from an award of death benefits under the Louisiana Workmen’s Compensation Act to the widow of Police Captain Anthony D. Polito, contend there was no proof of an employment relationship between General Motors and Poli-to. Alternatively, they argue that Polito’s fatal automobile accident did not arise out of and in the course and scope of his employment and that the trial judge erred in excluding certain evidence indicating Polito was on a personal mission rather than a job-related activity when he died. Defendants further contend that Polito’s intoxication at the time of the accident bars his widow from recovery under LSA-R.S. 23:1081.

Although we agree with the trial court that an employment relationship existed and that the accident arose out of and occurred in the course of Polito’s employment, we conclude that Polito’s intoxication was the proximate cause of his accident. Accordingly, we reverse the trial court’s judgment.

BACKGROUND

For five days prior to his death in the early morning hours of February 2, 1977, Captain Polito was in charge of a special detail of six police officers at the National Automobile Dealers Association convention in New Orleans. Although the officers were New Orleans policemen, they had been specially detailed to protect and escort Buick Motor Division executives during their stay in the city. Each officer, except Polito, was assigned as a chauffeur and bodyguard to a Buick executive or VIP. Polito had the responsibility of overseeing the detail. Each officer, including Polito, was provided with a new Buick automobile for use in carrying out his assignments. Polito and his men were on 24-hour call during the convention period. Often their work would occupy them from 7:30 or 9:00 a. m. until 2 or 3 a. m. the following day as they accompanied the executives at dinner and night spots in the city. Although Poli-to would coordinate assignments, the record indicates that he was also seen at restaurants with Buick executives during the convention.

At the conclusion of the convention and after the Buick executives had been returned to the airport on the morning of February 1,1977, Polito and his men met at the Fairmont Hotel during the early afternoon and each officer was paid his earnings. Also at that time, Polito informed them that there would be a dinner for them that evening at a local restaurant. Although some officers returned their loaned cars at that time, Polito exercised an option to return the vehicle on the following day.

The dinner lasted from approximately 6 to 9 p. m. and was attended by the officers in the detail and some Buick personnel. The record indicates that Polito had two glasses of wine with the meal and, after dinner, returned to the Fairmont where he consumed more drinks in the hotel lounge over a period of about an hour. He then went to the hotel night club. Polito was drinking heavily before leaving at approximately 11:30 p. m.

At some time between midnight and 1 a. m on February 2nd, Polito’s Buick, while traveling at a high rate of speed in a westerly direction on 1-610, hit the curbing and rolled over the guardrail in the vicinity of the 17th Street Canal and 1-10 in the city of New Orleans. Police officers arrived between 1:35 and 1:40 a. m. and found Polito dead at the accident scene, approximately six blocks from his home. A blood-alcohol test performed during his autopsy revealed an alcohol content of 0.23%.

EMPLOYMENT RELATIONSHIP

At the outset, we reject defendants’ contention that there has been a failure of proof of the employment relationship between Polito and General Motors. Although it is true that a workmen’s compensation claimant must prove by a preponderance of the evidence that he was an employee of defendant at the time of his injury, we hold that there was ample proof of the employment relationship in our case.

Robert J. Adams, manager of sales promotion and merchandising of the Buick Division of General Motors at the time of the 1977 convention, testified that he had contacted a former New Orleans police officer, Joe Vitare, to arrange for security for General Motors executives during their stay in New Orleans. Vitare contacted Polito who picked the officers for the detail. Each officer under Polito’s command was assigned a General Motors management member from the Buick division. During the convention Polito remained in contact with Adams and oversaw security of the Buick executives. A seven-page bill from Buick’s advertising agent to the Buick Motor Division, General Motors Corporation, shows payment in connection with the police detail, made to “Captain Anthony D. Polito.” Payment was made by General Motors to the officers for the services rendered by them. This is not a case where the officers were employed by the City of New Orleans or were assigned by the New Orleans Police Department. Under the circumstances, we conclude the evidence established an employment relationship between Polito and General Motors.

ACCIDENT “IN COURSE OF” EMPLOYMENT

In his written reasons for judgment, the trial judge concluded that Captain Polito was acting “within the course and scope of his employment at the time of his fatal accident.” The judge noted that Polito was on “24-hour call” on February 1,1977, even though the officers had been paid in the early afternoon. He further observed that for purposes of the workmen’s compensation action the detail extended beyond the time of payment and that Polito’s duties as commanding officer would have continued until the detail was completed by his return of the automobile to the Buick dealer on February 2, 1977, even though his duties to escort Buick representatives had ended on February 1. The court was of the opinion that where the employer furnishes an automobile to his employee who has an accident on the way to his home, compensation should be allowed, even though the employee may be diverted prior to returning home.

Defendants contend that the fatal accident did not arise out of or occur in the course of Polito’s employment for General Motors. Since the special detail had ended during the afternoon of February 1, and Polito had requested that he be allowed to keep his vehicle until the next morning, the defendants argue that Polito at the time of the accident in the early morning of February 2 was not about his employer’s business but rather was returning from a “night on the town”. According to defendants, the necessities of the detail did not require him to be at the place of this accident at the time it occurred. They argue that the mere driving of the assigned Buick automobile by Polito at the time of the accident does not automatically prove he was in the course and scope of his employment.

LSA-R.S. 23:1031 provides that compensation shall be allowed for accidental injury “arising out of and in the course of” the claimant’s employment. Under the jurisprudence interpreting this statute, it has been held that the terms “arising out of” and “in the course of” are not synonymous but must be considered together. The former phrase suggests an inquiry into the character or origin of the risk, while the latter phrase brings into focus the time and place relationship between the risk and the employment. Lisonbee v. Chicago Mill and Lumber Company, 278 So.2d 5 (La.1973).

in determining whether an accident “arose out of employment”, at issue are whether the employee was then engaged about his employer’s business instead of merely pursuing his own business or pleasure and whether the necessities of that business reasonably required that the employee be at the place of the accident at the time it occurred. Kern v. Southport Mill, 174 La. 432, 141 So. 19 (1932); Whitney v. U.S. Fid. & Guar. Ins. Co., 373 So.2d 728 (La.App. 2nd Cir. 1979), writ denied, 376 So.2d 320 (La.1979); Blakeway v. Lefebure Corp., 393 So.2d 928 (La.App. 4th Cir. 1981). An accident occurs during the course of the employment when it occurs during the time of the employment and at a place contemplated by it. Lisonbee v. Chicago Mill and Lumber Company, supra; Whitney v. U.S. Fid. & Guar. Ins. Co., supra. A determination whether an employee was engaged in a purely personal endeavor or in the course of his employment depends upon the facts of the particular case. Whitney v. U.S. Fid. & Guar. Ins. Co., supra; Keller v. Wallace Industrial Constructors, 224 So.2d 31 (La. App. 1st Cir. 1969), writ refused, 254 La. 782, 226 So.2d 771.

We have no difficulty in concluding that Polito’s accident “arose out of” his employment. Driving the automobile was a responsibility contemplated and carried out in Polito’s employment. The risk of an automobile accident was of the character associated with his duties as chauffeur to the Buick executives. He had been entrusted with a Buick automobile for use in that assignment and was permitted to drive it home each night before returning it to the Buick dealer at the end of the detail. The risk of an accident while driving that vehicle was to be expected and we cannot say that the fatality in this case did not arise out of the employment.

A more difficult question, however, is whether the fatality occurred “in the course of” Polito’s work for General Motors.

Although it is clear that the officers in the detail were paid on the afternoon of February 1 and that they performed no further duties for the Buick Motor Division in connection with the convention, we conclude that the evening of February 1 at the local restaurant was connected with the detail. Even though Polito suggested having the dinner, Adams, the Buick representative, testified that it is “customary to have dinner with your friends when you get through doing something” and that he had no objections to the suggestion of dinner since “everybody had done a good job.” In light of this evidence, we hold that the dinner was part of Polito’s employment for purposes of the compensation statute. Indeed, General Motors paid the expenses for the dinner.

The direction of Polito’s vehicle at the time of the fatal crash and its proximity to his home indicate that the accident occurred while Polito was attempting to return home following the dinner and the social events at the hotel. Furthermore, Polito’s final employment function, i. e., the return of the automobile, would have been carried out on the following day, February 2. Polito at the time of his death was attempting to return home as a step toward returning the vehicle. We consider our case analogous to Boutte v. Mudd Separators, Inc., 236 So.2d 906 (La.App. 3rd Cir. 1970), cert. den., 256 La. 894, 240 So.2d 231 where an employee, subject to call 24 hours a day, was injured while driving his employer’s truck home after some personal socializing. That employee was using his employer’s vehicle to return home to have it available the following day for his employment. Our case is also similar to Keller v. Wallace Industrial Constructors, supra, in which the evidence indicated that the employee after leaving his employer to engage in his own business was killed while returning either to his home or the job site. The court noted that the employee's heading in the direction of home was “bringing him closer to the completion of his mission, and therefore, coincided with the business purpose.” Guided by these cases together with the realization that we are dealing with social legislation, we are led to conclude that the accident arose in the course of Polito’s employment.

INTOXICATION

LSA-R.S. 23:1081 denies compensation “for an injury caused ... by the injured employee’s intoxication at the time of the injury.” The trial judge in his reasons for judgment stated that the employer must show that the employee’s intoxication was the cause of the accident. The judge noted that other factors such as fatigue and stress from long hours could have equally contributed to Polito's death and that General Motors had failed to carry its burden of proof showing that the accident resulted from the employee’s intoxication. We do not agree with the legal conclusion that defendants failed to carry the burden of showing Polito’s intoxication.

The evidence is undisputed that Polito drank about two glasses of wine with the meal at the restaurant on the evening of the accident and continued to drink at the hotel following the dinner. Captain Richard Hunter, an officer serving on the General Motors detail, testified that Polito had “plenty” of champagne cocktails at the hotel lounge during a forty-five minute to one-and-one-half-hour period before moving on to the hotel nightclub, the Blue Room, and drinking heavily there. Hunter said that Polito’s speech was slurred and that he appeared very unsteady and tired at that time. He indicated that his intoxication was “real obvious.”

Terry Parta, another officer on the detail, testified that Polito was past the “feeling-good” stage when he went into the Blue Room. According to John Morse, also a fellow officer, Polito drank some alcohol at the restaurant and had maybe two or three drinks at the hotel lounge and several more at the Blue Room. Morse felt Polito was “on the way to being intoxicated” at about 10:30 p. m and appeared intoxicated around 11:15 or 11:30 p. m. when the Blue Room show ended. Morse described Polito’s speech as slurred. His actions also were impaired. Morse testified further that Poli-to had fallen asleep at the table during the nightclub show and appeared to be walking like an intoxicated person (not going from side to side but staggering) when he left the Blue Room. Morse indicated an effort was made to escort Polito to wherever he was going, but he refused it.

The investigating police officer who arrived on the accident scene between 1:35 and 1:40 a. m. smelled alcohol on Polito’s body. Dr. Paul McGarry, the pathologist who performed the autopsy, also smelled alcohol and requested a blood test, which showed a 0.23 alcohol content in Polito’s blood. Dr. McGarry testified that such a blood alcohol level is enough to influence behavior and is legally and medically evidence of intoxication.

Polito’s fatal accident was witnessed by Thomas K. Winingder, a motorist who was traveling on 1-10 in a westerly direction at the time of the crash. According to Win-ingder, Polito’s late model Buick was moving in a westerly direction on 1-610 at a high rate of speed. He saw it hit the curbing, roll over the guardrail and disappear out of sight. Jefferey Reilly, the police officer investigating the accident, found no swerve marks on the roadway or any indication that Polito may have taken an evasive action.

Dr. Monroe Samuels, the chief consulting pathologist for the New Orleans Coroner’s office, could not unequivocally say a hypothetical driver with an alcohol level of 0.23% would have an accident under circumstances similar to Polito’s as a result of intoxication. However, Samuels did testify that an individual with a 0.23 blood alcohol level is significantly impaired and “would have to be classified as an unsafe driver.” This toxicologist, who signed the report relating to Polito’s death, indicated that the impairment would be in perception, distance and reflexes. Dr. Samuels stated “he might see something, yet not appreciate exactly what it was that he saw.” An individual at a 0.23 concentration would be much more likely to have an accident of this particular nature than one who is sober. Although there was evidence in the record that Polito obtained only a few hours sleep per night during the days preceding his accident, Dr. Samuels indicated that fatigue and alcohol is “an awful mixture that is difficult to divide.” He observed that the depressant condition of alcohol may cause a fatigued person to fail to appreciate his inability to drive. Although Polito had suffered a heart attack long before his accident, and had experienced angina attacks, Dr. Samuels was of the opinion that the influence of alcohol would tend to dilate the coronary vessels and work against a coronary spasm as a cause of the accident.

The pathologist, Dr. Paul McGarry, believed that consumption of alcohol contributed to Polito’s death. He testified that it was “highly probable that his level of alcohol was instrumental in the occurrence of the accident.” Although he recognized that various factors such as fatigue and Polito’s heart condition may have been involved, he stated that “putting this case together with all the specifics makes other factors unlikely.” He did not expect an episode of angina to be responsible for the accident since such a pain syndrome does not cause such distraction or inattention to such a degree as to cause a driver to lose control of a car totally. Although he recognized that working twelve to fifteen hours a day would be excessive for a man with Polito’s heart condition, McGarry did not expect that fatigue alone, with no other factors involved, could have caused the accident, although he acknowledged that it was remotely possible.

Our reading of the undisputed lay and expert testimony in the record leads us to conclude that Polito's intoxication was the “cause” of his fatal accident, even though other factors may have played a part. We hold that the trial judge erred in refusing to recognize intoxication as a defense under these circumstances. The statute denies compensation for an accident “caused by the employee’s intoxication”; it does not speak of accidents “solely caused” by the employee’s intoxication.

In so holding, we distinguish Ray v. Superior Iron Works and Supply Co., Inc., 284 So.2d 140 (La.App. 3rd Cir. 1973), writ refused, 286 So.2d 365 (La.1973). In Ray the court allowed compensation to an employee with a blood content of 0.26% alcohol, who was injured in a one-car accident after his automobile left an asphalt highway in good weather on a gradual curve. In the cited case, unlike ours, three of plaintiff’s witnesses testified that the employee did not appear drunk before driving. Furthermore, the employee testified that as he was coming into the curve he became blinded by the lights of some on-coming cars, pulled off the highway to the right but lost control in trying to bring his car back onto the highway. The Ray opinion noted that the visible evidence at the accident scene did not warrant the conclusion that plaintiff could not have momentarily driven off the right shoulder upon meeting on-coming cars. In Ray it was more probable that the plaintiff had simply run off the road. For a discussion of the Ray case, see Malone, 14 La.Civil Law Treatise: Workers’ Compensation, Second Edition § 344.

In our case, however, several witnesses testified that Polito had appeared drunk upon leaving the Fairmont Hotel shortly before his accident. Moreover, the witness to the accident observed Polito’s vehicle traveling at a high rate of speed and leaving the roadway for no apparent reason.

Although sympathetic to the widow in this case, we feel compelled to reach the unfortunate conclusion that plaintiff is not entitled to workmen’s compensation since the employee’s fatal injuries were caused by his intoxication. The defense of intoxication in workmen’s compensation cases is indicative of the public policy against allowing recovery where injury has been caused by intoxication. Defendants successfully carried the burden of showing intoxication „ in this case.

Consistent with the foregoing, we reverse the judgment of the trial court. Accordingly, plaintiffs’ suit is dismissed. Costs to be paid by defendants.

REVERSED AND RENDERED.

SAMUEL, J., concurs and assigns reasons.

SAMUEL, Judge,

concurring.

I agree with the conclusion reached on the issue of intoxication and with the decree as a result of that conclusion. That issue alone requires the result reached even if the decedent was an employee acting within the course and scope of his employment. Accordingly, in my view, particularly as I am doubtful about the conclusion which properly should be reached on those other issues, I see no reason to consider them.

For the above reasons, I respectfully concur.

      . LSA-R.S. 23:1081 reads as follows (in pertinent part):
      “§ 1081. Deliberate or wilful injuries, etc.; defenses; burden of proof.
      No compensation shall be allowed for an injury caused ... (2) by the injured employee’s intoxication at the time of the injury ....
      In determining whether or not an employer shall be exempt from and relieved of paying compensation because of injury sustained by an employee for the causes and reasons set forth in this Section, the burden of proof shall be upon the employer.”

      . Thomas K. Winingder, a motorist traveling on I-10, witnessed the accident. Jefferey Reilly, a New Orleans police officer, arrived on the accident scene.

      . Geiger v. Larrieu, 246 So.2d 713 (La.App. 4th Cir. 1971); Tew v. Aetna Casualty And Surety Company, 174 So.2d 838 (La.App. 4th Cir. 1965).

      .By “stipulation of counsel for plaintiff,” the claim against the City of New Orleans, named as a defendant in the original petition, was dismissed.

      . We are aware, however, of jurisprudence holding that the intoxication must be the sole or proximate cause of the employee’s accident. See Conley v. Travelers Ins. Co., 53 So.2d 681 (La.App. 2nd Cir. 1951); Dollar v. Southern States Co., 18 La.App. 178, 135 So. 758 (La. App. 2nd Cir. 1931). Even if a sole cause standard is required, we conclude intoxication was the sole cause of the accident in this case.


author: BOUTALL, Judge.

text:
    Johnny K. LATHAM v. DEPARTMENT OF POLICE.
    No. 11583.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 5, 1981.

      Law Offices Bach & Wasserman, Sidney M. Bach, Gerald Wasserman, New Orleans, for appellant Johnny K. Latham.
    Michael A. Starks, Deputy City Atty., Salvador Anzelmo, City Atty., New Orleans, filed brief for Department of Police.
    Before BOUTALL, GARRISON and KLIEBERT, JJ.
   BOUTALL, Judge.

This is an appeal from a decision of the Civil Service Commission of the City of New Orleans upholding an order from the Superintendent of Police of New Orleans dismissing Johnny K. Latham from his employment as a police officer.

On April 28, 1979, Johnny K. Latham, a police officer of the New Orleans Police Department, was involved in an incident at Fat Harry’s bar in uptown New Orleans in the early morning hours. While off duty and in civilian clothing, Latham stopped at Fat Harry’s and sought admittance. He was barred from admittance by another off duty policeman employed by the owners upon the instructions of the operator. La-tham had previously been involved in an altercation on the premises in December, 1978 and as a result of that incident he had been suspended for 15 days and told by the Superintendent of Police not to return to that bar.

The letter of dismissal contained a number of charges which were not borne out by the evidence presented to the Civil Service Commission. However the record clearly shows that Latham did attempt to enter the bar and was only prevented by the presence of Police Officer Mayes who was working an authorized paid detail on the premises in uniform. After being refused admittance, Latham continued to stand in front of the premises until district police officers arrived and he was ordered to leave.

Generally, a public body has no authority to regulate or restrict its employee’s activities when off duty, and regulations that may attempt to do so must be reasonable and not oppressive. See for example City of Crowley Firemen v. City of Crowley, 280 So.2d 897 (La.1973); Lally v. Department of Police, 306 So.2d 65 (La.App. 4th Cir. 1974). In this case, the order was not one that applied to all policemen generally, but applied to this particular policeman as a result of his past activity. Thus it is dependent upon the particular facts in this case to determine whether the order was reasonable, and not oppressive, and whether the individual freedom of this employee may be subjected to limitations imposed upon him by the employing authority. We agree with the decision of the Civil Service Commission under the facts of this particular case.

Latham had already been in an altercation at Fat Harry’s and it was reasonable to believe that his return to the premises would result in a breach of the peace. The Superintendent’s order was directly related to the Police Department’s mission of keeping the peace and the probability that one of his own men would be involved in disturbing it. Where there is a reasonable expectation that if a police officer engages in certain conduct which may result in a probable breach of the peace, particularly when it is forseeable that the officer will come into conflict with other police officers, such an order forbidding that conduct is reasonable and permissible. Appellant’s failure to obey a valid order of his superior is grounds for dismissal.

The decision of the Civil Service Commission is affirmed.

AFFIRMED.


text:
    ROLL-UP SHUTTERS, INC. v. SOUTH CENTRAL BELL TELEPHONE CO.
    No. 11654.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 5, 1981.

      Murray, Murray, Ellis, Braden & Landry, Julian R. Murray, Jr., New Orleans, for Roll-Up Shutters, Inc., plaintiff-appellant.
    Raymond J. Salassi, Jr., Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for South Central Bell Tel. Co. and L. M. Berry and Co., defendants-ap-pellees.
    Before BOUTALL, GARRISON and KLIEBERT, JJ.
   BOUTALL, Judge.

This appeal arises from a judgment of the trial court limiting the amount of recovery by the plaintiffs from the defendants in accordance with the terms of the contract entered into between the parties.

On December 12, 1977, the plaintiff, Roll-Up Shutters, Inc. entered into a contract with South Central Bell Telephone Co. (hereinafter referred to as SCBT) for the purchase of advertising in the Yellow Pages issued by SCBT. L. M. Berry and Co. (hereinafter referred to as LMB) represented SCBT as its agent in procuring the sale of advertising space in the directory from the plaintiff. The advertisement purchased by the plaintiff was to include printed language as well as a drawing depicting the roll-up shutters to be sold by Roll-Up Shutters, Inc. When the Yellow Pages were published in April of 1978 a defect appeared in the drawing depicting the shutters sold by the plaintiff. Subsequently, Roll-Up Shutters, Inc. filed suit against LMB and SCBT seeking recovery for the alleged loss of business and revenues as well as damages to the reputation of the business as a result of the defect in the advertisement. Although the defendants answered denying any liability unto the plaintiff, they abandoned this to contend only that their liability should be limited in accordance with the terms of the contract to abatement of the charges for advertising.

Upon conclusion of the plaintiff’s case in the trial by jury, the lower court granted a directed verdict in favor of plaintiff but, however, limiting the defendants’ liability to $1,480.20 as per the terms of the contract with the plaintiff. From this judgment, the plaintiff has appealed devolutively.

The evidence before us reveals that Norris Babin, the President of Roll-Up Shutters, Inc. contacted SCBT in November of 1977 inquiring about purchasing an advertisement in the Yellow Pages. In response to this inquiry, Walters of LMB visited Ba-bin to discuss such a purchase. Thereafter, a contract was entered into between Babin on behalf of Roll-Up Shutters, Inc. and Walters on behalf of SCBT. This contract contained a provision which limited the liability of SCBT to the amount of charges for advertising and for any errors which may appear in the advertisements in its Yellow Pages Directory. The provision states:

“The Telephone Company’s liability on account of errors in or omissions of such advertising shall in no event exceed the amount of charges for the advertising which was omitted or in which the error occurred in the then current directory issue and such liability shall be discharged by an abatement of the charges for the particular listing or advertisement in which the omission or error occurred.”

In connection with this purchase, a sample copy of the advertisement was proposed containing printed language as well as space for drawings of the shutters as they would normally appear on a residence or business. Babin submitted two photographs of the shutters from which the drawings were to be made. Babin approved the sample ad but at that time the drawings of the shutters had not yet been made. Before Babin had the opportunity to view the advertisement in its final form, the Yellow Pages were published. The plaintiff in its published form contained a defect in the drawings in that the shutters were depicted as rolling up from the bottom of the window instead of from the top. In other words, the drawings were upside down. As a result of this defect, this litigation arose.

On appeal there are two basic issues presented for our consideration. They are as follows: 1.) whether the trial court committed error in limiting the liability of the defendants SCBT for the defective advertisement in accordance with the terms of the limitation of liability clause contained in the contract with Roll-Up Shutters, Inc. and 2.) whether the trial court acted properly in limiting the liability of the defendant LMB according to the limitation of liability provision when LMB was not a party to the contract.

-I-

La.C.C. Art. 1901 provides: “Agreements legally entered into have the effect of laws on those who have formed them. They cannot be revoked, unless by mutual consent of the parties, or for causes acknowledged by law.” The jurisprudence interpreting this article has espoused the general rule that a contract is the law between the parties, unless it is contrary to the law or public morals. Kogos v. Lemann, La.App., 285 So.2d 548 (4th Cir. 1973) writ refused La., 288 So.2d 648; Cagle Supply of Lafayette, Inc. v. Hinson, La.App., 155 So.2d 773 (3d Cir. 1963). With respect to the instant case, the question is whether the limitation of liability clause contained in the contract between Roll-Up Shutters and SCBT is contrary to the law on public morals.

The case before us is very similar to the one faced by the court in Wilson v. Southern Bell Telephone and Telegraph Service, Inc., La.App., 194 So.2d 739 (1st Cir. 1967). In that case the plaintiff-owner of a tax service entered into a contract with Southern Bell Telephone and Telegraph Service, Inc. for the purchase of an advertisement in the Yellow Pages directory. When the advertisement was published a defect appeared in the printed wording which described the plaintiff’s tax service as a “taxi” service. The contract entered into between these parties contained a limitation of liability clause almost identical to the one before us. The appellate court upheld the validity of the liability limitation provision thereby limiting the plaintiff’s recovery to the cost of the advertising. This decision upholding the validity of this provision was followed by the same court in Marino v. South Central Bell Tel. Co., La.App., 376 So.2d 1311 (1st Cir. 1979).

The question of the validity of this type of limitation of liability provision has been considered by various decisions in other jurisdictions. The large majority of these decisions have upheld it thereby limiting the telephone company’s liability for defective advertisements in its Yellow Pages to the amount of the advertising charges. See: Davidian v. Pacific Tel. & Tel. Co., 94 Cal.Rptr. 337, 16 Cal.App.3d 750; Woodburn v. Northwestern Bell Tel. Co., Iowa, 275 N.W.2d 403; Smith v. Southern Bell Tel. and Tel. Co., 364 S.W.2d 952, 51 Tenn.App. 146. However, we note that some courts have limited the application of such a provision to acts of ordinary negligence or carelessness. Such a limitation provision will not be applicable to gross negligence or willful or wanton misconduct; Robinson Ins. and Real Estate, Inc. v. Southwestern Bell Telephone Co., D.C., 366 F.Supp. 307; Holman v. Southwestern Bell Tel. Co., D.C., 358 F.Supp. 727.

The plaintiff contends that the liability limitation clause is adhesionary and therefore, unenforceable. However, no primary authority is offered to support such a contention nor are we able to find any Louisiana jurisprudence applying such a concept. We see no reason to contravene the overwhelming majority viewpoint upholding the validity of this provision. Therefore, we find that such a provision is not contrary to the law or public morals.

Regarding the instant matter, we find that the trial court did not commit an error in applying the limitation of liability provision to the evidence presented. As previously indicated, the defect in the advertisement was in connection with the drawings depicting the shutters themselves. The balance of the advertisement was free or error. Such a defect can hardly be described as anything but carelessness. There was no evidence presented as to gross negligence or willful or wanton misconduct which could have taken the matter outside of the limitation of liability provision.

This case is clearly distinguishable from Bunch v. South Central Bell Tel. Co., La. App., 356 So.2d 104 (1st Cir. 1978) because that case involved a contract that had been fulfilled plus negligence not arising from the contract.

-II-

Plaintiff contends that LMB is liable for its negligence in connection with the preparation of the defective advertisement and its appearance in the Yellow Pages. LMB contends that its liability is limited to that of its principal, and that the limitation of liability contract similarly applies to it. LMB is not mentioned specifically in any place in the contract, which was prepared as a contract between South Central Bell Telephone Company and the prospective customer. The contract provision is quoted above.

It is basic law under Civil Code Article 3013 that the mandatary is responsible to those with whom he contracts, only when he has bound himself personally, or when he has exceeded his authority without having exhibited his powers. None of these exceptions apply in this case and the uncontested facts show that LMB is an agent of SCBT thus, for those matters coming within the province of the contract itself there is no obligation or duty owed plaintiff.

Plaintiff contends however that LMB is guilty of negligence in the preparation of the advertisement and that it is responsible in part. We have recently pointed out this distinction in the case of Richardson v. Darby, 352 So.2d 725 (La.App. 4th Cir. 1977). In this case, the duty to do the work connected with the correct publication, that is, execution of the contract between the parties, is mainly owed by the agent towards its principal which employs it rather than directly to the advertiser. Nevertheless, assuming, but not deciding, that LMB may be liable for any tortious acts committed against plaintiff, a review of the record indicates no evidence of any negligence or other tortious activity committed by LMB. The trial judge in his reasons for judgment expressly so found, and we agree.

Under these circumstances, we see no liability on the part of LMB, but we note that the directed verdict cast LMB along with SCBT under the limitation provisions. Because LMB has not appealed or answered the appeal, there is no issue raised before us on that.

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

AFFIRMED.


author: BOUTALL, Judge. SCHOTT, Judge,

text:
    Sharon Lynn Shannon BISHOP v. Joseph F. BISHOP, Jr. Joseph F. BISHOP, Jr. v. Sharon L. Shannon BISHOP.
    Nos. 11442, 11443.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 5, 1981.

      A. D. Freeman of Satterlee, Mestayer & Freeman, New Orleans, for Joseph F. Bishop, Jr., defendant and appellant.
    Bruce G. Reed, Reed & Reed, Floyd J. Reed, New Orleans, for Sharon Lynn Shannon Bishop, plaintiff-appellee.
    Before BOUTALL, SCHOTT and CHE-HARDY, JJ.
   BOUTALL, Judge.

This appeal is concerned with the amount of an award of child support, the amount of an award of attorney’s fees, and the refusal to continue permanent alimony after divorce.

In these consolidated cases, Sharon Lynn Shannon Bishop and Joseph F. Bishop, Jr. obtained judgments of separation and subsequent divorce, with custody of their minor child Christopher awarded to Mrs. Bishop. In both of those judgments there was an award of alimony to Mrs. Bishop and child support for Christopher as agreed upon between the parties. The parties have filed post-divorce motions to increase and decrease the amounts of the alimony and child support, and a rule for contempt alleging past due amounts owing, together with attorney’s fees. The trial court rendered judgment terminating alimony for Mrs. Bishop, increasing child support to the sum of $850.00 per month, ordering payment of $450.00 in tuition owed by Mr. Bishop, together with $350.00 attorney’s fees. Mr. Bishop has appealed and Mrs. Bishop has answered the appeal.

The primary issue in Mr. Bishop’s appeal is the amount of the award of child support, which he contends is excessive. He asserts error in the trial judge’s finding “that Mr. Bishop is capable of earning plenty of money beyond the maximum he is talking about” and the judge’s apparent reliance upon the case of Champagne v. Champagne, cited as Gray v. Champagne, 367 So.2d 1309 (La.App. 4th Circuit 1979). We find the principles of the Champagne case to be applicable to this case, and indeed, we find that the record in this case shows more evidence than does the Champagne case that justifies a conclusion that Mr. Bishop is capable of earning more than he contends in argument.

First, we consider the composition of the increased child support. In the divorce judgment the child support was agreed upon by the parties at $300 per month with cost of living increases measured by the consumer price index, together with providing hospitalization and health insurance, the cost of tuition at Sam Barthe School or its equivalent, and all medical and dental expenses not covered by the hospitalization policy. Alimony for Mrs. Bishop was set (relating back to the separation judgment) at $500 per month with similar cost of living increase, cost of insurance premiums on her home and automobile, hospitalization and health insurance and all expenses not covered thereby, and the cost and expenses of maintenance and repairs to the home and automobile. We recite this for two reasons. Primarily, the child support judgment does not constitute simply a raise from $300 on March 10, 1978 to $850 on June 6,1979, but was based in pertinent part on the inclusion of those items in the lump sum rather than as separate items which were causing conflicts over payment between the parties. Secondly, we cite the agreed upon payment for the wife because there is some relevancy under the facts of this case in showing that the spouse had agreed to pay despite a fluctuating income, a sum which Mrs. Bishop computes at $1220 a month and Mr. Bishop had computed at $1,046.87 per month. We point out that this is only a minor consideration in looking at the overall financial picture of these parties.

The basic issue, and one of the controlling issues on this appeal is the income of Mr. Bishop at the time of the trial. We would readily admit that there is sufficient justification for Mr. Bishop’s fluctuation and at times reduction of income because he has changed positions in his law business. At the same time, the record also supports the trial judge’s position that Mr. Bishop is capable of earning more money than he has disclosed. We cite for example Mr. Bishop’s testimony that between the period September 1, 1978 to the last day of April, 1979 on a monthly basis he had been averaging a take-home before taxes of $2,300.32. Depending where one starts for computations, one arrives at different figures. We note for example that his testimony for the period January 1, 1979 forward is as follows:

January, gross fees $9,959, net take home $5,673.84.
February, gross fees $11,437.87, take home $9,426.24.
March, gross $6,826.36, take home $4,220.68.
April, gross $400, net—deficit $1,556.54. May, gross $2,895.90, take home $1,503.79.

During this period it is readily perceived that Mr. Bishop’s net earnings were nearly $4,000 per month. Additionally, there is evidence in the record to show Mr. Bishop received some benefits from a trust arrangement resulting from his prior legal practice, the extent of which we are unable to ascertain. Under these facts, we find ample basis to support the findings of the trial judge. Accordingly, even though we may conclude that his finding of need for the child is perhaps generous, the amount awarded falls within his discretion, and we find no basis to disturb it.

The second issue on Mr. Bishop’s appeal is the award of attorney’s fees in the amount of $350 under R.S. 9:305. Although the judge only found Mr. Bishop in arrears in the amount of $400, the record shows that an additional amount of alimony was owing and past due, but paid prior to trial and that the prior alimony payments had been paid late on nearly every occasion. There is ample justification for the award.

The last issue before the court is that raised by Mrs. Bishop on her answer to the appeal, that the court erred in terminating her alimony because Civil Code Article 160 was unconstitutional. The hearing was just prior to the effective date of the 1979 amendment, and the issue is not seriously pursued on appeal. The case of Lovell v. Lovell, 378 So.2d 418 (La.1979) rendered some time later is determinative of that issue and the judgment is affirmed.

For the reasons above recited, the judgment appealed from is affirmed.

AFFIRMED

SCHOTT, Judge,

dissenting in part:

I respectfully dissent from that part of the majority opinion which affirms the judgment in favor of Mrs. Bishop for $850 per month for the support of a ten year old boy.

Mr. Bishop was admitted to practice as an attorney in 1969. His income tax return for 1978 shows an income from his law practice in the amount of $18,808, and for 1977, $19,271. He testified at the trial in June, 1979, that between January and May, 1979, he had a gross income from his law practice of $31,519, with a net income before taxes of $19,269. I note parenthetically that it does not seem unusual for his professional expenses as a sole practitioner to be approximately 39% of his gross. In any event, his average monthly net income for these five months was $3,854 before taxes.

According to Mr. Bishop, he is paying $160 per month for the support of his child by a previous marriage, he is now married for a third time providing a household for his new wife and her three year old child by a previous marriage and although the father of that child pays $100 per month child support, Mr. Bishop incurs some expenses for this child over and above the $100. It appears to me that $850 for this ten year old child is excessive on the face of these figures considering that allowances must be made for income taxes and social security.

In arriving at the $850 figure the trial judge made the following observation:

“... The court is of the opinion that Mr. Bishop is capable of earning plenty of money beyond the maximum he is talking about. Attorneys make more money than that. Mr. Bishop has always been successful in this business and it is hard for me to believe he is making it on what he is talking about.”

With all deference to and respect for the trial judge, it seems to me that this constitutes speculation on his part. Nothing in this record, or in my own experience, convinces me that Mr. Bishop or any attorney with nine years in the practice is necessarily capable of earning more than he presented to the court. I am not aware that attorneys with his experience generally make more money than he claimed he was making, and there is no evidence in the record to support such a conclusion.

In addition, if Mr. Bishop’s capability of earning more than he presented in his figures was a proper consideration, the same reasoning would require that Mrs. Bishop assume more of the burden of her son’s needs. She testified that she had been operating an antique business for a year and a half and has never made any money on the operation. She obviously has the time and the ability to hold a job in which she could earn a reasonable income.

Gray v. Champagne, 367 So.2d 1309 (La. App. 4th Cir. 1979) is distinguishable. There, the court was not impressed with Dr. Champagne’s testimony on his income because he did not produce his most current tax return, his business records or his C.P.A. Furthermore, he admitted that he could have earned more by the simple expedient of working 5 instead of 4‘A days a week. Finally, there was some evidence that he was earning over $4,000 per month rather than $2,500 as he testified. Based on these facts which are in sharp contrast with the facts of the instant case the court ordered Dr. Champagne to pay $1,200 per month for the support of his three children.

Accordingly, I would reduce the child support award, but I concur with the majority in all other respects.


text:
    George W. DAVIS et al. v. HOOKER CHEMICAL & PLASTIC CORPORATION and Employers Casualty Co., and Occidental Chemical Co. and National Union Fire Insurance Co.
    Nos. 11338, 11339.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 5, 1981.

      Robert E. Lee, Gretna, for movers, George W. Davis, et al.
    René A. Curry, Jr., New Orleans, for defendants, Hooker Chemical & Plastic Corp. and Occidental Chemical Co.
    Montgomery, Barnett, Brown & Read, Charles A. Boggs, Terry J. Freiberger, New Orleans, for appellees, Newtron, Inc., and Aetna Insurance Co.
    Before BOUTALL, BARRY and SAR-TAIN.
   BOUTALL, Judge.

These two consolidated cases come before us on motions to dismiss the appeal and the merits of the appeal.

George W. Davis was a pipe fitter and welder by trade who contracted lung cancer and became disabled. He and his wife filed suits, one against Hooker Chemical & Plastic Corporation and Occidental Chemical Company in tort, contending that they negligently exposed him to various chemicals and asbestos which caused his condition, and the other suit in Workman’s Compensation against his employers Newtron, Inc. and Dravo Corporation, alleging that he was forced to inhale and be exposed to these noxious substances during the course and scope of his employment on the premises of Hooker and Occidental. Davis subsequently died, and his surviving spouse Betty Davis, individually and as tutrix of their six children, was substituted as plaintiff. A subsequent amendment added the children.

After numerous procedural issues of preliminary nature were disposed of, the matter came on for jury trial on the merits.

On the first day of trial, the jury was selected and a number of witnesses were called by plaintiff and the trial continued until the next morning. On that day some additional witnesses were called by plaintiff, however Dr. Martin Brown, plaintiff’s expert medical witness, did not appear for court although subpoenaed. After a recess was held and there was discussion amongst the parties, a settlement was agreed upon including all of the plaintiffs and all of the defendants in these cases, and upon the court resuming sitting, the parties stipulated that they had discussed the matter and would stipulate that the settlement of all claims of all of the plaintiffs will be entered and that both the tort suit, which was then at trial, and the workman’s compensation suit will be dismissed in connection with the settlement. It was further noted that the settlement could not be completed at that time because of the minority of the children. The trial judge subsequently signed a judgment in accordance with the stipulation, and no issue is made that the items contained therein are incorrect.

Instead this appeal comes about as follows: Several hours after the parties had concluded the stipulation and the jury was dismissed, Dr. Brown appeared at court looking for the trial in which he was to testify. Upon being notified of this fact, the attorney for plaintiffs, who relates that one of the main reasons causing him to settle was Dr. Brown’s absence, felt that his client’s interest would be better served by setting aside the agreement to settle, filed a motion to strike the agreement from the record and to re-open the trial to admit medical expert testimony, and/or a motion for a new trial. This motion was filed several days later on November 2, 1979 and denied by the trial judge on that date. On November 12, the plaintiff’s attorney filed a motion for appeal “from the judgment rendered in the Motion for a New Trial, et al.” The trial judge granted a devolutive appeal on November 15. It should be noted that also on November 12, the trial judge signed the judgment of dismissal in accordance with the compromise and settlement.

In this court, a motion to dismiss the appeal was filed based on the fact that there was no appeal available from a motion for a new trial and also that the motion for appeal had been filed prior to the rendition of judgment on the merits. In response to this motion to dismiss, counsel for plaintiff then filed a new motion for appeal from the judgment on the merits of November 12, as well as denial of the motion for a new trial. This was filed on March 3, 1980 and signed by the judge on March 4. In response, the appellee has filed a new motion to dismiss that appeal, as coming too late, being more than 100 days from date of signing judgment. Because we felt that these motions were deeply involved with the merits of appeal which had been docketed for hearing by that time, we referred the motions to the merits to be considered along with argument on the merits.

In considering these motions, we note that on the face of the record, the second appeal appears to come too late. The first appeal, however, is more than simply an appeal from a motion for a new trial. That motion is directed to the validity of the compromise agreement and seeks to have it set aside. We refer to Code of Civil Procedure Article 2085 which provides certain limitations on appeal: “An appeal cannot be taken by a party who confessed to judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him.”

Therefore, unless plaintiff is able to show some reason why the stipulation should not be considered as a confession of judgment and binding on the parties, he is foreclosed from appealing and he has no other right of recovery. The motion filed constitutes a direct attack upon the validity of the stipulation, and in that sense could validly be considered either as a final judgment, or an interlocutory judgment which causes irreparable harm, i. e., loss of appellate rights as well as any other right of recovery. Accordingly, we consider the matter to be inextricably bound with the merits of the validity of the confession of judgment.

The only reason afforded us for the invalidity of that confession of judgment is that the attorney would not have settled had he known that Dr. Brown would appear to testify. While we concede that the attorney was faced with a difficult choice, we do not consider this sufficient reason to negate the requirement of voluntarily and unconditionally acquiescing in the judgment rendered. Indeed, considering the evidence that had been produced up to that time, we conjecture that the settlement, which was undoubtedly entered into for the benefit of plaintiffs, may very well have been the best choice under the circumstances.

We conclude that this case is controlled by the principles announced in the case of Martin v. Holzer Sheet Metal Works, Inc., 376 So.2d 500 (La.1979). We quote from page 502:

“[1,2] A confession of judgment precluding an appeal need not be in writing or in a particular form. It must, however, consist of an admission by a party in the proceedings in the trial court of the validity of his opponent’s claim in such a way as to leave no issue to be tried. La.C.C.P. art. 2085, Comments (b) and (c). Quaid v. Cyclone Fence Co., 226 La. 398, 76 So.2d 409 (1954). An in-court confession of judgment precludes an appeal under the code because it is made under the eye of the court and therefore without force or pressure. An extrajudicial confession, on the other hand, does not have this effect because it is not made under the court’s protection. La.C.C.P. art. 2085, Comment (b).”

In accordance with those principles, we hold that the agreement then stipulated constitutes a confession of judgment under La.C.C.P. art. 2085 and accordingly the appeal should be dismissed. See Singleton v. Bunge Corporation, 364 So.2d 1321 (La.App. 4th Cir. 1978).

For the reasons above assigned, the appeal is dismissed in both of these consolidated matters.

APPEAL DISMISSED.


author: SCHOTT, Judge.

text:
    Terrell J. CARMOUCHE v. Paul OUBRE and the State of Louisiana.
    No. 11590.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 5, 1981.

      Stephen J. Caire, Asst. Atty. Gen., William Guste, Jr., Atty. Gen., Warren E. Mou-ledoux, 1st Asst. Atty. Gen., New Orleans, for defendant-appellee State.
    Daniel E. Becnel, Jr., C. William Bradley, Jr., Barry J. Landry, Law Offices, Reserve, for plaintiff-appellant.
    Steven F. Griffith, Sr., Steven F. Griffith, Destrehan, for defendants-appellees.
    Before REDMANN and SCHOTT, JJ., and EDWIN R. HUGHES, Assigned Judge.
   SCHOTT, Judge.

Plaintiff has appealed from a dismissal of his suit against defendants, Paul Oubre and the State of Louisiana, on exceptions of no cause of action filed by them.

In considering the exceptions of no cause of action, the correctness of the allegations of fact is conceded and every reasonable interpretation must be accorded the language of the petition in favor of maintaining its sufficiency and affording plaintiff the opportunity of presenting his evidence. Hero Lands Co. v. Texaco, Inc., 310 So.2d 93 (La.1975).

Plaintiff alleged as follows: After his employee had an accident while driving plaintiff’s truck plaintiff proceeded to the scene of the accident. Upon discovering that the employee was injured he sent him to the hospital for treatment. Defendant Oubre, a deputy sheriff, arrived on the scene and despite plaintiff’s cooperating with defendant in the investigation plaintiff was arrested for resisting an officer and taken to jail by defendant. Plaintiff was falsely arrested, detained and imprisoned by defendant who had no probable cause to arrest him or initiate criminal proceedings against him. Oubre maliciously arrested him and instituted criminal proceedings against him for the purpose of harassment, embarrassment, and other ulterior motives. Oubre had “a long standing hatred of plaintiff, and had an ulterior motive and purpose in willfully using process improper in the regular administrative handling and prosecution of a routine, single-vehicle traffic violation proceeding.” In a subsequent trial plaintiff was acquitted. Defendants Oubre and the State are guilty of abuse of process, and the State is likewise liable for the acts of Oubre committed by him within the course and scope of his employment.

As to defendant Oubre the essential elements of malicious prosecution as set forth in Junot v. Lee, 372 So.2d 707 (La. App. 4th Cir. 1979), are alleged with sufficiency under the standards laid down by Hero Lands Company case. The same liberal treatment of allegations of the petition leads to the conclusion that a cause of action is stated for abuse of process as discussed in Succession of Cutrer v. Curtis, 341 So.2d 1209 (La.App. 1st Cir. 1976), writs refused, 343 So.2d 201.

In this court defendant Oubre argues that the petition is vague and that because various paragraphs of the petition do not incorporate other paragraphs by reference plaintiff somehow fails to state a cause of action when each specific complaint, such as battery, malicious prosecution and abuse of process is isolated. As to his first point, defendant’s remedy was to file the dilatory exception of vagueness under C.C.P. Art. 926 and his failure to do so constitutes a waiver. To agree with defendant’s other argument concerning the technical structure of the petition would be contrary to C.C.P. Art. 865’s requirement that every pleading shall be so construed as to do substantial justice.

Plaintiff’s allegation that the wrongful acts of Oubre were committed in the course and scope of his employment is sufficient to state a cause of action for vicarious liability against the State. In Foster v. Hampton, 352 So.2d 197 (La.1977), after remand, 381 So.2d 789 (La.1980) the court held that a deputy sheriff is an employee of the state and the state is vicariously liable under C.C. Art. 2320 for damages occasioned by the deputy sheriff in the exercise of the functions in which he is employed. The State’s reliance on LSA-R.S. 42:1441 A is misplaced because that statute immunizes the state from liability for damages caused by various officers including the sheriff and his employees. Under the Foster case the deputy sheriff is not an employee of the sheriff so that the statute has no application.

Accordingly, the judgment appealed from is reversed and set aside and there is judgment in favor of plaintiff, Harold J. Car-mouche, and against defendants, Paul Ou-bre and the State of Louisiana, overruling their exceptions of no cause of action. The case is remanded to the district court for further proceedings. All costs of this appeal are assessed against defendants with the balance of the cost to await the outcome of the case.

REVERSED AND REMANDED.


text:
    Wallace J. CARTER v. David L. POINDEXTER, Robert Gerstenkorn, John McGee, and Continental Casualty Insurance Co., Inc.
    No. 11606.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 5, 1981.

      Janine Syll Dingleman, Hartzell, Montero & Lamothe, New Orleans, for plaintiff-appellant.
    Robert E. Kerrigan, Jr., Deutsch, Kerri-gan & Stiles, New Orleans, for defendants-appellees.
    Before REDMANN and SCHOTT, JJ., and EDWIN R. HUGHES, Assigned, Judge.
   SCHOTT, Judge.

This executive officer suit by plaintiff, Wallace J. Carter, against David L. Poin-dexter, John McKee, and Robert Gersten-korn, arises out of plaintiff’s contracting silicosis from working with and around dia-tomaceous earth during his employment in the earth-regenerating plant at the American Sugar Refinery in Arabi, Louisiana, from 1960 to 1971. The case was tried before a commissioner of the Civil District Court who recommended dismissal of plaintiff’s suit. Plaintiff has appealed from a judgment denying his exceptions to the report and dismissing his suit. In this court, plaintiff takes issue with the commissioner’s finding that Poindexter was not negligent and the trial court’s application of the principles set forth in Canter v. Koehring, 263 La. 233, 267 So.2d 726 (La.1973) relative to executive officer liability.

Diatomaceous earth is a powdery substance used in the process of filtering sugar. In his capacity as a “fireman” plaintiff had the duty of adding sacks of fresh diatoma-ceous earth to a filtration system and retrieving, recycling, sometimes resacking and redepositing into the system the used diatomaceous earth. This material has a high silica content and because it was in the form of powder a considerable quantity of the material would enter the atmosphere and affect the environment wherever it was used. As a result plaintiff was, over this long period of time, exposed to this silica dust which finally caused his silicosis. He was supplied with masks which were supposed to protect him from inhaling the substance but the quality of the masks, the availability of them to plaintiff during all of his working time, and the extent to which plaintiff was warned about the necessity for using the masks were placed at issue by the plaintiff.

The company purchased the diatomaceous earth from three different suppliers over these years. Printed on the bags in which the material came to plaintiff are the following messages from each of the suppliers:

“CAUTION
This product consists of amorphous diato-maceous silica plus varying percentages of inverted microcrystalline silica. Inhalation of diatomaceous earth dust may be harmful. Avoid breathing this dust. Dust should be kept to a minimum by proper controls. Respirators or dust masks approved by the U. S. Bureau of Mines for silica dust are recommended.”
“CAUTION
‘Dicalite’ material consists of an almost pure amorphous diatomaceous silica plus varying percentages of crystalline silica. Inhalation of silica dust over long periods may be harmful. This material should be used so as not to create dust or — if this is not possible — employees should be equipped with adequate protective devices.”
“CAUTION
This product consists of amorphous diato-maceous earth plus varying percentages of crystalline silica. Inhalation of such dust over long periods of time may be harmful. If dust is created during use, adequate protection devices are recommended.”

Plaintiff was aware of these warnings on the bags and he used the face masks when dusty conditions were apparent to him but he did not wear the masks at other times. The masks provided to plaintiff were not of the type approved by the United States Bureau of Mines because the approved masks are to be held on by two bands around the head rather than the one band on the masks which plaintiff used. However, the material of which the mask is made and the general configuration was the same. The commissioner concluded from the evidence that it “negated any suggestion that, as regularly used, the mask did not fit the face properly.” He based this conclusion on the plaintiff’s testimony that when he wore a mask it occasionally became necessary for him to obtain a fresh mask when his breathing became difficult due to the accumulation of dust and perspiration on the mask.

Plaintiff produced an expert witness who testified that the close fit of the mask was essential, thereby raising the inference that plaintiff might not have contracted silicosis had he been using the approved two band mask instead of the one band mask over these years, but this testimony was to some extent speculative and not sufficiently compelling for us to conclude that the commissioner’s finding in this regard was manifestly erroneous. Arceneaux v. Dominique, 365 So.2d 1330 (La.1978).

Poindexter was not familiar with the warnings on the bags or that inhalation of diatomaceous earth might cause silicosis. The commissioner concluded that the link between the substance and the disease was not known to Poindexter and based his conclusion in part on the fact that company history did not show that any other employee had ever contracted silicosis during the long period while the material was being used.

Plaintiff takes issue with this finding and argues that danger of diatomaceous earth dust was well known by 1960. He bases this argument on the testimony of his expert, Mr. Goddard, but the record shows that when asked whether there was a body of information indicating the hazards of diatomaceous earth to the individual he made the following vague reference:

“.... There is an article in literature ... if I recollect, in 1934 by a group in California ... [and] another study by a couple of gentlemen .... in either ’54 or ’57. There was some work done in ’46, I believe, that was published.”

We fail to see how this testimony of a man who has made a specialized study of problems in the environment affecting the respiratory system can serve to prove that this was generally known, or should have been known to Poindexter and others similarly situated. We find no manifest error in the commissioner’s conclusion in this regard or in the following statement by the commissioner:

“Consequently, the court cannot find that the use of this material, together with the face masks provided, gave rise to a situation which would constitute a known unsafe place to work.”

In any event, the principal weakness of plaintiff’s case is his attempt to hold Poin-dexter liable for his injury. In the Canter case it was held that personal liability cannot be imposed upon an executive officer simply because of his general administrative responsibility for performance of some function of employment:

“.... He must have a personal duty toward the injured plaintiff, breach of which specifically has caused the plaintiff’s damages. If the defendant’s general responsibility has been delegated with due care to some responsible subordinate or subordinates, he is not himself personally at fault and liable for the negligent performance of this responsibility unless he personally knows or personally should know of its non-performance or mal-per-formance and his nevertheless failure to cure the risk of harm.”

Poindexter was the general manager of the sugar refinery which was a sprawling complex on 77 acres of land and consisted of a number of buildings providing 77 acres of floor space. The number of employees ranged between 800 in 1960 and 540 in 1970. Between him in his capacity of refinery manager were layers of management and supervisory personnel in the chain of command leading down to plaintiff who was in a crew of 15 employees under the supervision of a foreman. Poindexter delegated safety and sanitation to his manager of administrative services who in turn delegated this responsibility to a manager of safety, sanitation and services as distinguished from industrial engineering and personnel departments. The record shows that Poindexter’s subordinates to whom he made these delegations were experienced and educated employees. Plaintiff argues that Poindexter was negligent if not in reading the cautions on the bags of diato-maceous earth than in failing to know that his subordinates were not reading those cautions. He contends that the negligence of Poindexter’s subordinates in not being aware of the danger of the environment in which plaintiff was working, not being aware of the inadequacy of the masks provided, not seeing to it that plaintiff wore his mask at all times, and not being aware of the warnings printed on the bags of the substance, is somehow imputable to Poin-dexter. The commissioner found, and we agree that this situation is precisely what the Canter case was referring to when it spoke of the delegation of a general responsibility to a responsible subordinate. This is what Poindexter did and because there was no evidence that he personally knew or personally should have known that someone down the line was not discharging his responsibility Poindexter is not liable to plaintiff.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

      . The thrust of plaintiff’s appeal is against Poindexter alone.
      The evidence did not tie the other defendants in with plaintiffs work for the time in question.

      . See also Downey v. Callery, 338 So.2d 937 (La.App. 4th Cir. 1976) writs refused, 340 So.2d 1390 (La.).


text:
    NANNY'S SHOE STORE INC. v. BEDER & COMPANY.
    No. 11621.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 5, 1981.

      D. Allen Mandlebaum, Metairie, for plaintiff-appellant.
    Huey Beder, pro. per.
    Before REDMANN and SCHOTT, JJ., and EDWIN R. HUGHES, Assigned, Judge.
   SCHOTT, Judge.

Plaintiff has appealed from a dismissal of its suit for damages for defendant’s alleged breach of a contract to install a sign in front of plaintiff’s business. Plaintiff seeks recovery of $126 given as a deposit to defendant when the contract was signed, $2,000 loss of income allegedly resulting from defendant’s failure to perform the contract, and attorney fees.

The parties entered into a contract on July 30, 1979, under which defendant was to construct a double faced sign on a pole in front of plaintiff’s business. After defendant had erected the pole and installed a blank sign he was notified by the power company that the Federal Occupational Safety and Health Act prohibited him from completing the sign because it was within ten feet of power lines.

The prohibition against the completion of the sign was “a fortuitous event or irresistible force” which hindered defendant from doing what he contracted to do so that plaintiff is not entitled to damages for the inexecution of his contract, LSA C.C. Art. 1933(2).

Additionally, when this contract was signed between the parties they must have supposed that nothing prohibited the erection of the sign and, surely, defendant would not have obligated himself to perform something which was beyond his ability. It would be inequitable to penalize defendant for his inexecution of the contract under these circumstances which were unknown to either party when the contract was signed. C.C. Arts. 1964 and 1965.

However, plaintiff deposited its $126 with defendant in the good faith belief that the sign could and would be erected. No considerations of law or equity should compel plaintiff to suffer this loss as compared to defendant who was the professional supposedly having knowledge of sign erection problems. Thus, plaintiff is entitled to a judgment for the amount of its deposit.

Plaintiff is not entitled to attorney fees because there is no provision for recovery of the same in the contract or by law.

Accordingly, the judgment appealed from is reversed and set aside and there is judgment in favor of plaintiff, Nanny’s Shoe Store, Inc., and against defendant, Beder & Company, in the sum of $126 with legal interest from date of judicial demand until paid and for all costs of these proceedings.

REVERSED AND RENDERED.


author: CHEHARDY, Judge. SAMUEL, Judge,

text:
    Charles CHANDLER, Sr. v. DEPARTMENT OF STREETS.
    No. 11596.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 5, 1981.
    John E. Ruiz, Jr., New Orleans, for plaintiff-appellee.
    Salvador Anzelmo, City Atty., Michael A. Starks, Deputy City Atty., New Orleans, for defendant-appellant.
    Before SAMUEL, GULOTTA and CHE-HARDY, JJ.
   CHEHARDY, Judge.

The defendant, Department of Streets, City of New Orleans, appeals a decision of the Civil Service Commission, City of New Orleans, reducing the defendant’s disciplinary action against the plaintiff, Charles Chandler, Sr., from a dismissal to a 30-day suspension. The Commission also ordered Chandler reinstated to his former position and recited he was also entitled to all back pay and other emoluments of his office since the expiration of the 30-day suspension, less any amount of wages he earned during that period.

The record reflects that the plaintiff, a Street Maintenance Foreman I, had been continuously employed by the City of New Orleans for more than 13 years and that during that period he had received five promotions.

On October 5, 1979, a letter was sent to Chandler from the Director of Streets, which stated in part:

“This letter will serve to officially notify you that you are dismissed from the Department of Streets-Maintenance Division effective at close of business Friday, October 5, 1979.
“This action is being taken due to your continued violations of Department of Streets rules, despite your receiving repeated warnings from your supervisors.
“On March 22, 1978 you were sent a certified letter notifying you of a five day suspension which you subsequently served on April 4, 5, 6, 18, 19, 1978. In the final paragraph of that letter I specifically warned you that future infraction of the rules would lead to dismissal; the direct quotation follows:
‘You are additionally advised that a future incident of this category, sleeping on the job and/or not supervising your crew, will result in your dismissal from employment.’
“Since the March, 1978 incident, leading to your suspension, you have violated the rules and were warned of possible severe disciplinary action by your supervisors on the following occasions:
July 18, 1978 — you and three members of your crew were caught returning to the job late from lunch.
September 12,1978 — you and four other employees left the job site one-half hour prior to your scheduled noon to 1:00 P.M. lunch period.
July 18, 1979 — your supervisor Calvin Alexander found that you had left the job before your assigned quitting time of 4:00 P.M. At 3:34 P.M. he discovered you missing and you did not return for the remaining work day.
August 27,1979 — you again left the job one-half hour early for lunch.
October 2, 1979 — Mr. Alexander again found that you left the job before quitting time. This time you and another employee were found not on the job fifty-five minutes prior to the 4:00 P.M. quitting time.
“The above-listed incidents manifest an unwillingness on your part to correct your job behavior. Your failure to observe working hours, in the face of repeated warnings of possible disciplinary action, by your supervisors, is certainly a violation of the above-quoted sentence contained in your March 22,1978 notification of suspension, specifically your failure to properly supervise your crew. Unauthorized absence from the job site is certainly adverse to your supervision of a streets maintenance crew and sets a bad example for employees under your authority. Moreover, an inefficient crew working on city streets creates a bad public image for the Department of Streets.”

In its order reducing the Department of Streets’ disciplinary action to a suspension, the Commissioner stated:

“In March, 1978 Appellant was disciplined and advised that a future incident of not supervising his crew would result in his dismissal. Appellant’s letter of dismissal in October, 1979 set forth five incidents where Appellant allegedly did not observe working hours and concluded that this was a failure to properly supervise his crew. The incidents cited range from July, 1978 to October, 1979, a period of 15 months and involve time spans of twenty-six to fifty-five minutes. The first two incidents in 1978 are too remote to be considered in dismissing the Appellant in late 1979. Thus we are dealing with three incidents involving a total time of approximately two hours. No single incident is sufficient to justify Appellant’s dismissal; but taken together as a unit they may display a lack of concern. However, Appellant is a long time employee, with a good record. The manner in which the charges were allowed to accumulate and lead to dismissal does not seem equitable. Under the circumstances we feel dismissal too harsh an action.
******
“Appellant is hereby warned that the rules currently in effect at the Department of Streets must be strictly followed. Further violations of work schedule may support more serious disciplinary action.”

In the case of Branighan v. Department of Police, 362 So.2d 1221 (La.App. 4th Cir. 1978), this court said at pages 1222-1223:

“The legal basis for any change in a disciplinary action can only be that sufficient cause for the action was not shown by the appointing authority. The protection of civil service employees is only against firing (or other discipline) without cause. This protection arises from La.Const. art. 10 § 8(A):
No person who has gained permanent status in the classified state or city service shall be subjected to disciplinary action except for cause expressed in writing.
“Cause justifying a one-day suspension might not justify a dismissal, and therefore — in that sense — the Civil Service Commission’s authority ‘to hear and decide’ disciplinary cases, Const, art. 10 § 12, includes authority to modify (reduce) as well as to reverse or affirm a penalty. See Brickman v. New Orleans Aviation Bd., 1958, 236 La. 143, 107 So.2d 422; Bernard v. Louisiana H. & H. R. A., La.App. 1 Cir. 1976, 336 So.2d 55. * * * The Commission does not have the authority to reduce a penalty except upon a determination that there is insufficient cause for the greater penalty.”

Although the court in Branighan, supra, held the appointing authority, in that case the superintendent of police, had sufficient cause to fire the officer in question and, therefore, it reversed the Commission’s decision to reduce the penalty to suspension, in the present case we can find no basis for such a reversal.

Similarly, this court addressed itself to the law articulated in Branighan, supra, in Joseph v. Department of Health, 389 So.2d 739 (La.App. 4th Cir. 1980). In Joseph the court observed at page 741:

“The legal basis for any change in a disciplinary action can only be that sufficient cause was not shown by the appointing authority. The protection of civil service employees is only against firing or other discipline without cause. This protection arises from La.Const. Art. 10, § 8(A), which reads:
‘No person who has gained permanent status in the classified state or city service shall be subjected to disciplinary action except for cause expressed in writing. A classified employee subjected to such disciplinary action shall have the right of appeal to the appropriate commission. The burden of proof on appeal, as to the facts, shall be on the appointing authority.’ (Emphasis ours).
“To paraphrase what this court said in Branighan v. Department of Police: The appointing authority (here the Director of the Department of Health) is charged with the operation of her department. She is the one who must run the department, an obviously necessary part of which is dismissing or disciplining employees. While she may not do so without case, she may, and indeed must, within the exercise of sound discretion, dismiss or discipline an employee for sufficient cause. The Commission is not charged with such operation or such disciplining.”

We agree with this interpretation of the law. However, although in Joseph, it was concluded that the appointing authority had shown sufficient cause for dismissing the plaintiff, a licensed practical nurse, and the decision of the Civil Service Commission was, therefore, reversed, we find Joseph clearly distinguishable on the facts in that it involved much more serious offenses on the plaintiff’s part (including violent physical altercations with co-workers during working hours), which clearly demonstrated that her dismissal had been within the sound discretion of the appointing authority. Contrarily, in the present case, a review of the evidence presented at the Civil Service Commission hearing reveals no such sufficient cause for Chandler’s dismissal.

At the hearing on the merits of the case, Chandler testified that on the October 2, 1979 occasion, when he was cited for leaving the job 55 minutes earlier than the established quitting time of 4 o’clock, he and the remainder of his crew were still in the immediate vicinity of the work area at the time the site was visited by his supervisor, Calvin Alexander. The plaintiff added that they were not working because the crew’s truck driver had left the job site with all of the tools and that he had no authority to stop the driver from leaving.

It was also the testimony of Joseph L. Goodman, Alexander’s supervisor, that shortly after he came into the district in July of 1979 he called meetings to stop the practice of crews quitting work early in order to allow the truck driver to return to the yard before the 4 o’clock “knock off” time; however, he was obviously aware that this was customarily done by the work crews up until that time.

Alexander testified he was unaware of the number of years Chandler had worked for the City at the time he recommended the dismissal and did not know that Civil Service regulations allowed suspensions of up to 120 days in one year. Goodman also said he was not consulted about Chandler’s dismissal by the City.

Regarding the charge that he left the job site before the scheduled lunch hour had begun, Chandler explained the truck had once again left the work area, with all the materials aboard, in order to have a flat tire repaired.

At the hearing Chandler also stated that Alexander had told he was going to “get” his job because he had “too many cookies in the jar,” meaning accumulated sick leave and annual leave time, although this was subsequently denied by Alexander.

In view of the above, we hold the Commission had ample evidence to decide that there was insufficient cause for the Department of Streets’ termination of the plaintiff in this case and to reduce his penalty to a suspension.

Accordingly, the holding of the commission is affirmed in all respects.

AFFIRMED.

SAMUEL, J., concurs with written reasons.

SAMUEL, Judge,

concurring.

The appointing authority’s reason for dismissing the plaintiff from his position was, allegedly on occasions so frequent as to establish a continuing pattern, he left work too early, i. e., before the end of the work day, or arrived too late, i. e., after the work day had begun. As this charge necessarily includes a considerable period of time, evidence of the first two incidents should have been admitted. Nonetheless, I am satisfied that such evidence, when added to the present record, would not suffice to justify a reversal.

I feel it necessary to avoid being a part of the majority opinion solely because to do so might give the impression I approve of the ruling which excluded evidence of the first two incidents.

Accordingly, I respectfully concur.