text:
    Calvin Eugene IRVINE and Annie Jane Hill Irvine v. SENTRY INSURANCE COMPANY.
    No. 14812.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.

      John N. Gallaspy, Bogalusa, for plaintiffs.
    Edward L. Levert, Jr., New Orleans, for defendant.
    Before COVINGTON, COLE and WATKINS, JJ.
   COLE, Judge.

The basic issue presented here is whether or not the trial court was clearly wrong in finding plaintiff to be partially disabled as the result of an accident which occurred during the course and scope of her employment.

The facts are as follows. Plaintiff, Annie Irvine, was employed as a bookkeeper at G. E. Thomas Auto Parts in Bogalusa, Louisiana. On October 30, 1979, she stumbled and twisted her ankle while entering the building via a concrete ramp. There were no witnesses to the accident. Plaintiff consulted her family physician, Dr. John Newman, that same day. He found no evidence of fracture from x-rays taken and ordered her to stay off her foot and to keep it elevated. She did so for several days but the swelling and pain persisted. She attempted to return to work about a week later but was so uncomfortable she went home at noon. Dr. Newman referred her to an orthopedic specialist, Dr. Daniel Sinclair, who put her foot in a cast. This brought no relief and was removed about a week later. Depositions introduced at trial show she was seen by two other orthopedic specialists, Dr. Luis Matta and Dr. Ray Haddad, whose testimony will be examined below.

After the employer’s workmen’s compensation carrier (Sentry Insurance Company) refused to pay benefits, Mrs. Irvine and her husband filed suit on March 24, 1980. The trial court determined Mrs. Irvine was permanently partially disabled and rendered judgment accordingly. Sentry Insurance Company (Sentry) appealed. Plaintiffs answered the appeal seeking to have the $2,500 attorney’s fees increased to $5,000.

In deciding this appeal there are four subsidiary issues to be determined. One, did Mrs. Irvine’s alleged injury occur within the course and scope of her employment? Two, was she in fact partially disabled under La.R.S. 23:1221(3)? Three, was Sentry arbitrary and capricious in their refusal to pay the compensation benefits so as to entitle Mrs. Irvine to receive penalties and attorney’s fees? Finally, should the amount of attorney’s fees be increased?

We have no doubt Mrs. Irvine’s alleged accident occurred within the scope and course of her employment. Even though the accident occurred outside the building and prior to the time she began her bookkeeping duties, it has been held employees injured while on the job site and while preparing for work are injured within the course and scope of their employment. Sanders v. Kirby, 171 So.2d 281 (La.App. 1st Cir. 1965).

Defendant contends the employee’s testimony alone is not enough to establish the accident actually occurred within the scope and course of the employment, as opposed to having occurred elsewhere and cites Wright v. Red Ball Motor Freight, Inc., 315 So.2d 344 (La.App. 1st Cir. 1975). We have examined the cited case and note it holds an employee’s testimony can be sufficient to establish the accident occurred within the scope and course of the employment when such testimony is corroborated by other credible evidence. Mrs. Irvine’s testimony concerning the accident was corroborated by the following evidence.

Her husband, Calvin Irvine, testified she had called him the morning of the accident and asked him to come to her place of work to examine her foot. He stated, “She told me she had tripped and sprained her foot and I looked at it.” He observed the foot to be swollen and advised her to go to a doctor.

Three other employees were in the auto parts store on the date of the accident. One employee, Bill Moody, testified Mrs. Irvine told him she had gotten out of her car and twisted her ankle. Another employee, Hoyle Griffin, related she had told him at lunch time her foot hurt because she had turned to get up and had twisted her ankle. The third employee, Donald Johnson, said she had never mentioned her injury to him.

There is very little evidence to contradict plaintiff’s claim the injury occurred while Mrs. Irvine was at work. We agree with the trial court it is totally unremarkable a co-employee, such as Donald Johnson, does not recall being informed of the injury, although Mrs. Irvine testified she saw him immediately after the accident and told him of her problem. As the trial court noted, “Initially, the accident was not considered serious by Mrs. Irvine or any of her co-employees, and there was no reason for this incident to be firmly and clearly entrenched in the memories of the co-employees.”

Defendant points out Dr. John Newman testified the degree of discoloration and amount of swelling of the foot were indicative of the accident occurring several days prior to the time he saw Mrs. Irvine. (He had no notation as to when she said the accident occurred.) We note when he was questioned further about the possibility of the accident occurring on the same day as his examination, he testified such an event was entirely possible: ■ “You see, nothing in this particular science is exact, and there are no such words in medicine as ‘never’ and ‘always.’ It might have been an hour before, or it might have been days before.” When questioned about his opinion of Mrs. Irvine’s veracity he responded that she was a “salt-of-the-earth type person.” He stated that if she claimed the accident had occurred on the same day, her symptoms would have been consistent with that claim.

We conclude Mrs. Irvine’s claim as to where and when the accident occurred is corroborated by credible evidence. Therefore she has proven the accident occurred within the scope and course of her employment.

The second issue is whether or not the trial court erred in finding Mrs. Irvine permanently partially disabled. We will discuss this issue in terms of expert testimony, lay testimony, and credibility of the witnesses.

The expert testimony was offered by various depositions. All four doctors agreed Mrs. Irvine suffered, and continued to suffer as of the date of trial, from soreness and swelling of the right foot and ankle. Her personal physician, Dr. John Newman (accepted by the attorneys as an expert in family practice), stated he had examined Mrs. Irvine five times from October 1979, until November 1980. He had referred her initially to Dr. Daniel Sinclair, an orthopedic surgeon in Covington and later to Dr. Ray Haddad, the chairman of the Department of Orthopedics at Tulane Medical School. Dr. Newman stated that when he last examined her (November of 1980), he found a 50% disability of the right foot and ankle. He recommended she stay off the foot as much as possible because of the constant recurrence of the swelling which occurred whenever she put weight on the foot.

When asked if he would recommend Mrs. Irvine return to the type of job she had before, Dr. Newman said it would not be physically advisable for her to do so. He noted that although her job was basically a sedentary one, it did require her to be on her feet while doing the miscellaneous chores which are a part of any secretarial or bookkeeping job. He noted even minimal movement and weight bearing would contribute to the swelling and pain. He described Mrs. Irvine as a stoic person who complained very little about her condition.

Dr. Ray Haddad testified he first saw Mrs. Irvine on July 11, 1980. After taking x-rays he diagnosed her condition as an avulsion fracture. After her second visit the foot showed no improvement so he recommended she undergo surgery. When asked if she could continue her job as a bookkeeper he stated that she could. Even if she had to be standing, so long as she could move around, he thought her capable of such work. He admitted he did not actually treat Mrs. Irvine but simply served as a consultant for Dr. Newman.

Dr. Daniel Sinclair saw Mrs. Irvine in November of 1979, just several days after the initial injury. He diagnosed her condition as a severe sprain of the right ankle and mid-dorsal joint. He put a cast on her leg but it caused so much discomfort and swelling that he removed it after a week. He saw her a total of six times, until March 1980. Each time he noted swelling and she complained of pain. He disagreed with Dr. Haddad’s diagnosis of a fracture. His final conclusion was that she had a 614% permanent disability of the right foot. When asked the question as to whether or not she could work at a job that was 90% sedentary, he answered in the affirmative.

The final medical opinion was offered by Dr. Luis Matta, an orthopedic surgeon employed by Sentry. He examined Mrs. Irvine two times, once in February of 1980 and again at an unspecified later date. He found her foot and ankle swollen on both occasions although less so on the second examination. He recommended she move around to relieve her problem and stated she should be able to resume the type work she had been doing. He disagreed with the recommendation of the other doctors as to soaking the foot in hot water and stated this had probably aggravated the condition. He found her to have full functioning of the foot.

We quote now from the written reasons as to the court’s impression of the medical testimony.

“From the depositions of the physicians, it is obvious none of them took the time to determine with specificity the job duties of Mrs. Irvine. These duties were clearly pointed out to the Court, however. None of the doctors considered Mrs. Irvine a malingerer. The swelling in the ankle persisted. This corroborates her complaints of pain. The persistence of the pain and swelling corroborates the distinction made by Dr. Sinclair of the ability of different patients to recover as quickly as others from the same type injuries, as well as the diagnosis of Dr. Haddad that the plaintiff’s injuries involved something more than a severe ankle sprain.”

Dr. Newman stated unequivocally that it was not advisable for her to resume her duties at G. E. Thomas Auto Parts. His opinion seemed to be colored by his appreciation of the inevitability of walking and standing even in a “sedentary” type job. We agree common sense dictates any type of secretarial or bookkeeping job will always require some movement away from the desk. Although the three other doctors felt she could return to her job, we note that mere numerical majority of expert witnesses is not sufficient for determination of a decision in workmen’s compensation cases. Bean v. Higgins, 230 La. 211, 88 So.2d 30 (1956).

The trial court apparently gave greater weight to the testimony of Dr. Newman than to that of the three other physicians. The record shows Mrs. Irvine was seen five times by Dr. Newman, six times by Dr. Sinclair and two times by each of the other two doctors. Therefore, both Dr. Newman and Dr. Sinclair could be characterized as her “treating physician.” We note Dr. Newman treated her from the time of the accident (October 1979) until the time of the trial (November 1980). Dr. Sinclair treated her for a shorter time period, from shortly after the accident until March 1980. We find no abuse of discretion in the trial court giving greater weight to the testimony of Dr. Newman who obviously had the best overall knowledge of the patient’s condition and had more familiarity with her job duties. It is well settled that in workmen’s compensation cases the testimony of a treating physician, who has had the benefit of repeated examinations and sustained observation of the injured person, is accorded greater weight than specialists who may have seen the claimant only briefly. Turner v. American Mut. Ins. Co., 375 So.2d 113 (La.App. 3d Cir. 1979), reversed on other grounds 390 So.2d 1330 (La.1980); Meshell v. Rivers, 348 So.2d 203 (La.App. 3d Cir. 1977), writ refused 1977.

In summary, both “treating” physicians agreed she suffered some permanent disability. Dr. Sinclair’s estimate of 6Vi% disability was much more conservative than Dr. Newman’s estimate of 50%. They disagreed as to her ability to resume her position as a bookkeeper. In light of this conflicting testimony it is apparent the trial court was influenced to some extent by factors other than the medical testimony. It is entirely proper, and in fact is the duty of the trial judge in workmen’s compensation cases to evaluate testimony of all witnesses, both lay and medical; and, after making such evaluation he may accept or reject an opinion expressed by any medical expert depending on how impressed he is with qualifications, credibility and testimony of that expert. Victoriana v. Orleans Parish Sch. Bd., 346 So.2d 271 (La.App. 4th Cir. 1977). When there is a conflict in medical testimony the court should consider the lay testimony in determining whether or not plaintiff is disabled. Meshell, supra.

We now examine the pertinent lay testimony that obviously influenced the trial court’s decision. Mrs. Irvine testified she experienced pain and continued swelling from the date of the accident up through the date of the trial. Although the swelling would subside when she remained off her foot, it would return when she moved about to any extent.

Concerning her job duties, she testified she spent her mornings bookkeeping and the afternoons tending to the “cardex,” an inventory system. Sometimes while using the cardex she had to get up to check on an item in stock. In addition to these two major duties she waited on customers when the other employees were busy, which involved retrieving parts from the back of the shop. She would occasionally get up to answer the telephone and would go into the shop to get an employee if he had a phone call. She did all the filing and went to the bank daily. She estimated she spent 3 or 4 hours a day on her feet.

She testified that since the accident she could do very little housework at home. Her husband had cooked supper ever since the injury and her daughters had helped her with the housework. She could drive the car sometimes but was unable to do chores such as grocery shopping. She stated she had not had the surgery yet because she could not afford it.

Mrs. Irvine’s husband, Calvin Irvine, testified he noticed his wife has a good deal of pain in the evenings. He corroborated her statements about her inability to do housework, cooking and shopping. Annie Fair-ley, Mrs. Irvine’s grandmother, testified that her granddaughter had been an energetic person prior to the accident and had always been able to do her housework. After the accident Mrs. Fairley had observed the swelling of the ankle daily and knew Mrs. Irvine was not able to do the housework, shopping or cooking.

Mr. Fielding Bates, the secretary-treasurer and general manager for G. E. Thomas Auto Parts, testified concerning Mrs. Irvine’s job description. He stated her job was 90% sedentary and required her to be on her feet only 10% of the time.

After hearing all the testimony the trial court made the following observation concerning Mrs. Irvine’s credibility:

“The court closely observed Mrs. Irvine and concludes that she is a sincere, truthful lady who would prefer earning her way as compared to surviving on worker’s compensation benefits.”

It has been held time and time again that where evidence is conflicting the appellate court should not disturb the trier of fact’s reasonable evaluation of one set of witnesses as credible and its consequent rejection of testimony of the opposing set of witnesses. Nor should a reviewing court disturb the trier of facts reasonable factual inferences drawn from testimony found by it to be credible. Billiot v. Bourg, 338 So.2d 1148 (La.1976); McMillan v. Travelers Ins. Co., 371 So.2d 1213 (La.App. 1st Cir. 1979); Fountain v. Anacoco Sand & Gravel Inc., 352 So.2d 410 (La.App. 3d Cir. 1977). Therefore, we will not disturb the trial court’s decision to accept Mrs. Irvine’s testimony concerning her condition and her disability.

There was substantial evidence showing Mrs. Irvine was partially disabled within the meaning of La.R.S. 23:1221(3). That subsection of the statute reads in pertinent part as follows:

“For injury producing partial disability of the employee to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience. ... ”

Mrs. Irvine testified she was a bookkeeper by education and experience. We find no manifest error in the trial court’s conclusion that Mrs. Irvine is disabled from doing bookkeeping or similar work, because any such work involves movement to some extent and cannot be done properly by someone who is unable to move about. The court, impressed by Mrs. Irvine’s truthfulness and by Dr. Newman’s expert opinion, did not err in determining Mrs. Irvine was permanently partially disabled.

Next, we address the issue of whether or not Sentry was arbitrary and capricious in failing to pay benefits and is therefore subject to penalties and attorney’s fees under La.R.S. 22:658. The injury occurred on October 30, 1979. Mrs. Irvine apparently made a claim for benefits sometime prior to November 12, 1979, when it became apparent to her she was unable to return to work. Dr. Sinclair sent a report to Sentry dated November 12,1979, in which he stated Mrs. Irvine could report to work. A Sentry agent, Ms. Susan Rolfes, telephoned Mrs. Irvine on November 21, 1979, and took a statement. Mrs. Irvine explained she was unable to work because her foot continued to hurt and swell and gave Ms. Rolfes information concerning the accident and the condition of her foot.

The next communication to Sentry was a report from Dr. Matta, dated March 3,1980. Mrs. Irvine’s problems were described and Dr. Matta stated, “I feel that in approximately one month she should be able to return back to regular duties and feel that external evidence of injury would probably be gone.” At this point, in addition to the claimant’s statement of November 21, which clearly indicated she was unable to work, Sentry was apprised by its own doctor that the patient was unable to work for at least another month. This is an apparent admission that she had been unable to work prior to and at the time of Dr. Matta’s examination.

Dr. Sinclair submitted another report dated April 22, 1980, in which he reported the results of his March 24 examination of Mrs. Irvine. He found her to continue to have pain and swelling of the right ankle and foot. No mention was made of her ability to return to work.

Looking at this evidence in totality we find no error with the trial court’s determination that Sentry was arbitrary and capricious in its refusal to pay. The trial court’s conclusion as to this matter is partially a factual determination which should not be disturbed absent a finding of manifest error. Carter v. American Mut. Liability Ins. Co., 386 So.2d 1072 (La.App. 3d Cir. 1980). The record establishes that in spite of the multiple reports by medical experts and claims by the insured, Sentry did not pay one cent. Apparently they continued to rely upon the initial report by Dr. Sinclair that Mrs. Irvine was able to return to work. However, there was ample evidence subsequent to the first report showing Mrs. Irvine continued to suffer from the injury and was unable to work. When an insurer receives an initial report showing the claimant is able to work, but later receives reports showing disability, the insurer may not blindly rely upon the earlier report and solely on that basis avoid penalties for arbitrary nonpayment of benefits which are due. Carter, supra; Walker v. Gaines P. Wilson & Son, Inc., 340 So.2d 985 (La.1976). Therefore, we affirm the court’s assessment of penalties and attorney’s fees.

Plaintiffs have answered this appeal, seeking an increase in the amount of attorney’s fees. We grant an increase in the amount of attorney’s fees (which the trial court set at $2,500) to $4,250. Such a fee reasonably compensates the attorney for his work, which we have reviewed and find to be substantial.

In conclusion, we amend the judgment of the trial court by increasing the amount of attorney’s fees to $4,250. In all other respects the judgment is affirmed. Costs are to be paid by appellant-defendant Sentry Insurance Company.

AMENDED AND AS AMENDED, AFFIRMED.

      . This type of fracture occurs when a ligament pulls away from the attached bone and actually takes a fragment of bone with it.

      . § 658. “All insurers issuing any type of contract other than those specified in R.S. 22:656 and 22:657 shall pay the amount of any claim due any insured including any employee under Chapter 10 of Title 23 of the Revised Statutes of 1950 within sixty days after receipt of satisfactory proofs of loss from the insured, employee or any party in interest. Failure to make such payment within sixty days after receipt of such proofs and demand therefor, when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of 12% damages on the total amount of the loss, payable to the insured, or to any of said employees, together with all reasonable attorney’s fees for the prosecution and collection of such loss, or in the event a partial payment or tender has been made, 12% of the difference between the amount paid or tendered and the amount found to be due and all reasonable attorney’s fees for the prosecution and collection of such amount. Provided, that all losses on policies covering automobiles, trucks, motor propelled vehicles and other property against fire and theft, the amount of the penalty in each of the above cases shall be 25% and all reasonable attorney’s fees.”

      . Dr. Sinclair, apparently on January 7, 1980, addressed a note to the employer in which he stated: “So, therefore, she is considered disabled until released to return to full activity.” The defendant does not deny receiving this note, only taking the position there is no evidence it was ever received by it or by the employer.


source: Caselaw Access Project

author: COVINGTON, Judge.

license: Public Domain

text:
    Lloyd John LANDRY v. ASCENSION PARISH SCHOOL BOARD.
    No. 14814.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.

      Robert L. Kleinpeter, Kleinpeter, Klein-peter & Kleinpeter, Baton Rouge, for plaintiff & appellee.
    Gordon R. Crawford, Crawford, Golsmith & Holdridge, Gonzales, for defendant & appellant.
    Before COVINGTON, COLE and WATKINS, JJ.
   COVINGTON, Judge.

This is an appeal by the Ascension Parish School Board from a judgment of the District Court rendered on February 23, 1981 and signed on March 11, 1981, decreeing that:

“... there be judgment herein in favor of the plaintiff, Lloyd John Landry, and against the defendant, Ascension Parish School Board, reversing the decision of the Ascension Parish School Board terminating the employment of Lloyd John Landry as a classroom teacher and ordering his reinstatement to the position of a teacher with tenure at the high school level and that plaintiff, Lloyd John Landry, be reimbursed for all pay since the date of his discharge, together with all other emoluments and fringe benefits to which he would be entitled had he not been discharged together with all costs of Court.”

This suit arises out of the following set of facts: Lloyd John Landry was a teacher with tenure under LSA-R.S. 17:443, et seq., having taught in the public school system for a period of ten years or more with eight years devoted to the Ascension Parish School System. An incident occurred on September 21, 1978, involving Landry and Ray Jacob, a 16 year old male student, in the boys’ restroom area, where Landry was on “duty” during recess. The student accosted the teacher, and an argument ensued. Words were exchanged and a scuffle took place between them. The altercation proceeded into the hallway, where a group of students quickly gathered. Thereafter, the scuffle was broken up by the Assistant Principal, Emile Chiquette. Chiquette told Jacob to go to the office, but he refused. Jacob then wrapped his belt around his fist, threatening Landry; and, disregarding the instructions of the Assistant Principal, he left the area, and apparently left the campus.

Shortly thereafter, Jacob reappeared on the campus in the same area, armed with a two by four (2 X 4) piece of wood, approximately 30 inches in length. He immediately sought out Landry in the boys’ restroom and physically attacked the teacher, with Landry apparently dodging most of the blows intended for him. After managing to get out of the area, with Jacob in wild pursuit, swinging his board as a weapon, Landry ran to his automobile (which was in the teachers’ parking lot), unlocked the car, and obtained a pistol from the glove compartment. Thereafter, he stood in front of his vehicle with the pistol at his side (to have his vehicle behind him to protect himself from any attack from the rear), anticipating Jacob and a group of students coming after him. He was also looking toward the school building, concerned about the safety of his wife, who was also a teacher at the same school. Jacob did in fact appear in the area, still carrying the piece of wood, but retreated when he saw the plaintiff with his pistol in hand. The evidence shows that Landry made certain that the pistol was visible, but he did not point the gun at Jacob, or anyone else.

Plaintiff was never the aggressor. The record also shows that, to the contrary, Landry fled the scene rather than continue the fight with the student, but that Jacob pursued him in an attempt to resume the altercation. It was only when Jacob observed that Landry was also armed, that he reversed his direction and went back toward the school.

The Donaldsonville Police Department was summoned. Upon arrival of the police a short time thereafter, Landry surrendered the pistol to an officer. Landry was removed from the school campus. Subsequently, charges of aggravated assault were filed against both Landry and Jacob, with both cases being tried before Judge A. J. Kling, Jr., Ascension Parish Court, Gonzales, Louisiana. Judge Kling entered a verdict of guilty against both defendants; and, certiorari was granted by the Louisiana Supreme Court only as to Lloyd John Landry.

The Supreme Court reviewed Landry’s conviction, and reversed the conviction and sentence, finding that Ray Jacob was the aggressor at all times and that Landry was acting in legal justification or self-defense. State v. Landry, 381 So.2d 462 (La.1980).

The facts have been clearly set forth and judicially accepted in the Landry case, supra, which has been made a part of the record in the instant case. The Supreme Court stated:

“We find it was subjectively reasonable for defendant to conclude that Jacob was intent upon continuing the prior attack. Having been just subjected to a violent armed assault, it was reasonable for defendant, upon seeing Jacob coming in defendant’s direction still carrying the weapon, to conclude that Jacob’s purpose in approaching was to carry out his previously demonstrated intent to inflict serious bodily harm upon defendant. We hold that defendant had ample reason to fear imminent serious personal harm at the hands of Jacob.
“We also find that defendant’s brandishing the gun at Jacob and threatening Jacob with harm,[] without actually firing the weapon, was use of reasonable force. Unquestionably, Jacob was the aggressor from the onset of the entire incident. Armed with the club, Jacob was capable of inflicting serious if not fatal injuries on defendant’s person. Jacob’s persistence and the degree of hostility displayed toward defendant was reasonable cause for defendant to believe that unless a considerable deterring force was employed, defendant could expect a continued armed assault on defendant’s person.”

Insofar as the facts involved in the tenure hearing are concerned, we note the date referred to by many of the witnesses, in response to the questioning of counsel for the school board, was repeatedly referred to inadvertently as September 28, 1978, when the correct date was September 21, 1978. (There is no dispute that the pertinent incidents occurred on September 21, 1978.)

In addition to the testimony of the students, as summarized in Landry, supra, the testimony of several teachers and the Superintendent was taken during the tenure hearing. The Principal, Violet Marchand, together with the testimony of the Assistant Principal, Emile Chiquette (Chiquet), briefly relates the events which occurred on September 21,1978. The pertinent testimony from these witnesses, as well as that of Raymond Joseph Brown, James Lester Dykes, Sr., Annie Aucoin Nichols, Clarence M. Simms, Catherine Davis, Helen Sanders, Elaine Rome and Alice Oubre, was to the effect that Lloyd John Landry was a good teacher and had no unusual disciplinary problems with students, and that his manner of handling and coping with students had always been acceptable and reasonable. In addition to the testimony of these teachers and principals, the Superintendent, M. B. Gautreau, testified that the School Board had no policy with reference to firearms on the school campus and no rules with reference to weapons in vehicles on campus.

Superintendent Gautreau, upon inquiry by one board member at the tenure hearing, testified that he did not consider the conduct of Landry as the kind of conduct he would expect from a school teacher. Other than this, there is no testimony in the record which adversely reflects on Landry as a teacher in any respect.

Landry was given an efficiency rating (September 24, 1978 and September 29, 1978) as an “excellent teacher” and as being “extremely capable and knowledgeable”.

After the tenure hearing, the Board adopted, by a vote of 6 to 3, a motion, dated December 8, 1978, dismissing Lloyd John Landry as a school teacher effective as of September 21, 1978, without statement of its facts or basis for its conclusions.

The leading case with reference to the procedural requirements in a teacher tenure case is Lewing v. DeSoto Parish School Board, 238 La. 43, 113 So.2d 462 (1959), wherein the Court observed:

“The Teachers’ Tenure Act (LSA-R.S. 17:441-444), under which plaintiff’s petition was filed, has for its object the protection of worthy teachers. It has been repeatedly held by the courts of this State that this act should be liberally construed in favor of the class of persons designed to be its primary beneficiaries. Andrews v. Union Parish School Board, La.App., 184 So. 574; 191 La. 90, 184 So. 552; Lea v. Orleans Parish School Board, 228 La. 987, 84 So.2d 610, 613.” (113 So.2d at 464)

And, then the Court (113 So.2d at 465) remarked:

“Our study of the Teachers’ Tenure Act and the jurisprudence convinces us that the provision in LSA-R.S. 17:443, supra, providing ‘for a full hearing to review the action of the school board’ is for the benefit of discharged teachers. If a school board decides that sufficient evidence was adduced before it to sustain the dismissal of a teacher, she is entitled, if she desires, to a full hearing on the merits in the district court with a presentment of additional evidence in her behalf. . .. The defendant school board would then be given an opportunity to negate this evidence.... If the discharged teacher is content with the record as made up at the hearing before the school board, she has a right to have her case submitted on the record, subject, of course, to the discretion and ruling of the trial judge.”

In connection with the judgment before us at this time, the trial judge rendered the following written reasons for judgment:

“The Plaintiff in this suit against the Ascension Parish School Board seeks to reverse the action of defendant in removing him from his position as a teacher with tenure in the public school system of this parish.
“Counsel for defendant School Board, on the date of trial, filed an exception of no cause of action the basis of which was the failure of plaintiff to allege facts which, if proven, would justify a reversal of the action taken by the board. An examination of the petition reflects that it was filed with this court within one year of plaintiff’s discharge and that it seeks ‘to reverse the action of the School Board’, all as set out in R.S. 17:443. The exception is obviously without merit and is therefore overruled.
“The conduct of Plaintiff which led to his discharge occurred on September 21, 1978. His actions on that date led to his being tried and convicted in the Parish Court of Ascension Parish on the crime of aggravated assault which conviction was reversed by our Supreme Court by Judgment of March 3, 1980. See State v. Landry, 381 So.2d 462. The decision (introduced into the record and judicially cognizable by the Court) sets forth the factual occurrences and legal principles upon which the court concluded that Plaintiff’s use of his firearm in the manner therein described constituted the affirmative defense of legal justification or self-defense.
“Shortly after the occurrence of September 21,1978, the Plaintiff was notified by Defendant School Board in writing of a dismissal hearing to be held, the basis for which were eight enumerated charges. The hearing was held on November 17, 1978 following which he was discharged effective September 21, 1978. Plaintiff contends in this Court that defendant erred in discharging him 1) without any finding of ‘wilful neglect of duty, incompetency or dishonesty, as the same relates to his ability as a school teacher’, 2) that he was discharged for having a firearm locked in his automobile and using same in his defense and 3) in resting its decision on the premise that it did not ‘condone’ Plaintiff’s action in defending himself with an automatic pistol.
“Despite the fact that (as mentioned above) some eight charges were lodged by Defendant against Plaintiff, the only issue presented to this court by the Defendant School Board, as contended by its counsel in brief, is whether the Plaintiff’s conduct on September 21, 1978 amounted to a wilful neglect of duty, the position being taken that Plaintiff’s acts, while not a violation of a regulation of the Board, were by their very nature as to require no regulation over one holding the position of classroom teacher. In this same vein, Counsel for Defendant argues that mere vindication of Plaintiff on the criminal charge against him does not of itself place his actions within the range of acceptable conduct for one in his position and that his deviation from the Board’s concept of what is acceptable amounts to a ‘wilful neglect of duty’. This argument is concluded with the observation that alternative courses of action open to the Plaintiff would have been to have gone to the school office or to have simply driven away in his automobile.
“Counsel for Plaintiff contends that as the latter had a constitutional right to keep and bear arms ‘subject to some regulations’ and it was unreasonable and arbitrary on the part of Defendant to deny him his right of self defense and to dismiss him from his position because of one isolated instance of what might be considered a grave lack of judgment.
“The Court feels that the argument ad-vancefd] by Counsel for Plaintiff is a valid one.
“The record (which, by stipulation includes the proceedings of the Defendant School Board on November 17, 1978) reflects that Plaintiff had taught in the public school system for some 10 years or more, eight of which were with Ascension Parish. With the exception of an instance or two in which he had difficulty with a student, the testimony was to the effect that Plaintiff had had no disciplinary problems and that he was a good teacher; indeed, the efficiency rating given him by the principal on September 24th and 29th, 1978 referred to him as an ‘excellent teacher’ and being ‘extremely capable and knowledgeable’. The Superintendent testified that the School Board had no policy with respect to firearms either on the campus or being kept in an automobile.
“It appears to the Court that here, following close on the heels of an unforeseeable and extremely disruptive and regrettable occurrence the Defendant School Board has in its reflective wisdom decreed to Plaintiff ‘Thou shall not invoke self defense’. While this court would not condone the use of firearms as a means to be employed in solving the disciplinary problems arising in the public schools today, it does hold that to discharge the Plaintiff under the circumstances here presented constitutes policy making which could be argued to be ex post facto in nature and which certainly is punitive in nature. To put it another way, the Court is of the firm conviction that the discharge of the Plaintiff from his position as a dedicated teacher is entirely too extreme and too harsh, with the harm done to him being in no way commensurate with the good, if any, which might possibly inure to the Public School System as a result.
“For the reasons assigned, the Court holds that Plaintiff is entitled to the relief prayed for and, when presented with a judgment in conformity with the foregoing, same will be rendered accordingly.”

In the case at bar, we have an isolated incident where a teacher, Landry, defended himself in a reasonable manner when he was physically attacked by a student who was apparently determined to inflict bodily harm on the “duty teacher”, as evidenced by his refusal to report to the school office when directed to go there by the Assistant Principal, his wrapping his fist with his own belt (as a weapon), and then leaving and returning with a 30-inch two by four board (as a weapon), which he actually used in an unprovoked attack on the teacher. The record does not show any other instance of action on the part of Lloyd John Landry which might be described as unacceptable behavior on the part of a teacher, and the record reflects no violation of a rule, regulation, or policy of the school board.

In view of the circumstances of this case and the evidence which was presented to the board, we find that the dismissal of Landry was unreasonable and arbitrary. We conclude, as did the trial court, that there was no rational basis for the board’s action in dismissing Landry. See Watts v. Winn Parish School Board, 66 So.2d 350 (La.App. 2 Cir. 1953), cert. denied, October 9, 1953.

For the assigned reasons, we affirm the judgment of the trial court, reversing the decision of the Ascension Parish School Board which terminated the employment of Lloyd John Landry as a classroom teacher, and ordering Landry’s reinstatement to the position of a teacher with tenure at the high school level; and that plaintiff be reimbursed for all pay since the date of his discharge (September 21, 1978), together with all other emoluments and fringe benefits to which he would be entitled had he not been discharged.

The defendant-appellant is cast for all costs for which it is legally liable.

AFFIRMED.

      . We do not find, from the record, that Landry ever “brandished” the gun at Jacob or threatened him with harm, although plaintiff did, of course, make certain that the pistol was visible to the aggressor, Jacob.


author: COLE, Judge.

text:
    Janet M. Donnelly, Wife of/and Patrick J. DONNELLY v. Noble HANDY and Handy Homes of Slidell, Incorporated.
    No. 14815.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.

      Mark Alan Jolissaint, Slidell, for plaintiffs, appellants.
    Eandolph C. Slone, Slidell, for defendants, appellees.
    Before COVINGTON, COLE and WATKINS, JJ.
   COLE, Judge.

The single issue before us is whether or not plaintiffs have stated a cause of action against defendant Noble Handy. Because we conclude they have not, we affirm the judgment of the trial court.

Plaintiffs Janet M. Donnelly and Patrick J. Donnelly entered into a building contract with Handy Homes of Slidell, Inc. (Handy Homes), represented by Noble Handy, president. The contract concerned the construction of plaintiffs’ residence and was clothed with the formality of an authentic notarial act. Following the contractual provisions relative to construction of the home, Mr. Handy intervened in the contract and bound himself individually for the sole purpose of indemnifying the Donnellys for any workmen’s compensation claims made against them. The contract was signed by Noble Handy, “as President” and again by Noble Handy, “individually.”

Various disputes arose between the parties as to the quality of the construction, and after arbitration efforts failed, plaintiffs filed this suit. Mr. Handy filed an “exception of no right and/or cause of action,” alleging the contract had been entered into by the corporation (except for the workmen’s compensation aspect) and therefore plaintiffs had no remedy against him as an individual. The trial court agreed and rendered judgment in favor of Mr. Handy and dismissed plaintiffs’ suit as to him. Plaintiffs then filed this appeal.

As a preliminary matter, it is apparent from the contract (attached to the petition as an exhibit) the agreement to build the residence was between the corporate entity, Handy Homes, and the Donnellys. Mr. Handy signed as an individual only in relation to the workmen’s compensation matter. Therefore, there is definitely no cause of action against him as to a breach of contract claim. This is so because a corporation is a separate entity from its members. La.Civ.Code art. 435.

However, plaintiffs contend their petition states a cause of action in tort against Mr. Handy individually. Paragraph fifteen of the petition reads as follows:

“In addition to the breach of contract hereinabove outlined, plaintiffs assert that the defects in materials and workmanship, that in substantial measure, contributed to this breach of contract were caused solely by the negligence of Noble Handy in failing to properly supervise, inspect, govern, control, and manage the construction that formed the purpose of this contract.”

When considering whether or not plaintiff has stated a cause of action we must accept all well-pleaded facts in the petition and information in the attached documents as true. Any doubt must be resolved in favor of the sufficiency of the pleading to state a cause of action. Guillory v. Nicklos Oil and Gas Company, 315 So.2d 878 (La.App. 3d Cir. 1975).

Our research has revealed there are circumstances under which a corporate officer will be held personally liable for tortious acts. Professor Harry G. Henn made the following statement in his treatise, Law of Corporations, § 234 (1970):

“Obviously, if directors or officers (or other corporate agents or employees) act negligently to persons other than the corporation and cause or threaten damage to such persons or commit other torts against such persons, such corporate personnel would be responsible to such third persons according to the ordinary principles of tort law, and if such acts were committed during the scope of corporate activity, the corporation would be vicariously responsible to such third persons under the doctrine of respondeat superior. Such torts might or might not involve breach of duty to the corporation.”

This matter is discussed at 19 Am.Jur.2d Corporations § 1388. There it is observed that at one time a corporate officer would be liable to third persons if the officer had been guilty of misfeasance or malfeasance (acting wrongfully) because this was said to involve a duty to the third person. If, however, the officer had been guilty only of nonfeasance (failure to act), then this was said to be a duty toward the corporation only and was not actionable by a third person. Various courts cited by Am.Jur.2d have criticized this approach as superficial and the following analysis is suggested to determine personal liability of a corporate officer.

“One proper method of approach is to inquire whether the director, officer, or agent has failed to perform some duty which he owed to the person claiming to be aggrieved. In the determination of such liability the questions to be decided are: (1) Was there any duty on the part of the director, officer, or employee to use care not to injure the third person involved? (2) Did the act or omission of the director, officer, or employee constitute a breach of that duty? In accordance with these inquiries, the rule accepted in principle by the authorities is that a director, officer, or employee of a corporation is liable to third persons for injuries proximately resulting from his breach of duty to use care not to injure such persons, whether that breach is one of omission or commission. On the other hand, a director, officer, or employee of a corporation is not liable for injuries to third persons if he has been guilty of no act or omission causing or contributing to such injury, or if he owes no duty to such third person to use care, such as where the breach of duty complained of is one owing only to the corporation.”

Louisiana courts have consistently employed this “duty analysis” in determining a corporate officer’s personal liability. In Adams v. Fidelity and Casualty Company of New York, 107 So.2d 496 (La.App. 1st Cir. 1958), plaintiff, the surviving widow of an employee of defendant corporation, alleged certain corporate officers had been negligent in placing a large iron reel in a precarious position atop a stack of steel. The reel fell and killed the employee. The court refused to recognize the previous distinction between nonfeasance and malfeasance and determined the matter according to the duty owed to the plaintiff. The court concluded that an injury suffered by a third party which was due to the “breach of a legal obligation which the corporate officer or officers owed to the third party” would result in personal liability.

This duty approach has been recognized in many subsequent cases. Saucier v. U. S. Fidelity and Guaranty Company, 280 So.2d 584 (La.App. 4th Cir. 1973); Strickland v. Transamerica Insurance Company, 481 F.2d 138 (5th Cir. 1973); Richard v. Hebert’s Creamery, Inc., 381 So.2d 945 (La.App. 3d Cir. 1980); Canter v. Koehring Company, 283 So.2d 716 (La.1973), rehearing denied 1973.

Plaintiff relies heavily on the case of H. B. “Buster” Hughes, Inc. v. Bernard, 318 So.2d 9 (La.1975). In this case the defendant corporation, a sublessee of a barge, was carrying out a contract whereby certain buildings were moved for Plaquemines Parish. In the course of the work the barge operator inadvertently dug a canal through a portion of land that was to be used as a levee base. Plaintiff, as the sublessor, paid for the damage and then sued Bernard, individually, and his corporation, for reimbursement.

The trial court had held Mr. Bernard personally liable for failing to properly supervise the work and for failing to communicate certain information to the barge operator. The Court of Appeal, 306 So.2d 785 (La.App. 4th Cir. 1975), reversed as to Bernard’s personal liability because the contract was entered into with the corporation only. The Supreme Court granted writs upon the belief that in some situations Mr. Bernard could be personally responsible.

The court recognized a cause of action for personal liability of a corporate officer under certain circumstances:

“The law is settled that if an officer or agent of a corporation through his fault injures another to whom he owes a personal duty, whether or not the act culminating in the injury is committed by or for the corporation, the officer or agent is liable personally to the injured third person, and it does not matter that liability might also attach to the corporation. Article 2315 Civil Code; Canter v. Koehring Company, La., 283 So.2d 716 (1973); ...” (Other citations omitted.)

After recognizing such a cause of action the court examined the facts of the case and concluded Mr. Bernard had not breached any duty owed to Plaquemines Parish. The court stated:

“Bernard was on the property of Plaquemines Parish because of his status as a corporate officer of the Sherman A. Bernard House Moving and Shoring Corporation. While on the property he owed personally to Plaquemines Parish the same duty which any person owes to another, that is, the duty not to cause damage to the property of the other. Under the circumstances of this case, however, we cannot and do not conclude that Bernard personally breached the duty which he owed to Plaquemines Parish.”

We agree with the reasoning in Bernard and applying that reasoning to the present case, conclude plaintiffs have failed to state a cause of action against Mr. Handy. While we too recognize the possibility of tort (as opposed to contractual) liability, we find none in this case because Mr. Handy owed no personal duty to the Donnellys. The duty he owed (as alleged by the petition) was, to properly “supervise, inspect, govern, control and manage the construction.” This was a duty owed by Mr. Handy to the corporation exclusively (by virtue of his employment relationship) and by the corporation to the Donnellys (by virtue of the contract) but not by Mr. Handy to the Donnellys.

Although at first blush the facts of Bernard may seem very similar to the facts of the present case, there is an important distinction in the nature of the alleged duty. In Bernard, the court noted that while Mr. Bernard was on Plaquemines Parish property he owed the same duty as any other person so located, i.e., the duty not to destroy the property. Likewise, Mr. Handy, while on the Donnellys’ premises, owed them the duty not to destroy their property. Had the Donnellys alleged Mr. Handy had negligently damaged their property, a cause of action would have been stated. But the allegation of negligent supervision is of a different nature completely.

We cannot say Mr. Handy owed a personal duty to the Donnellys to properly supervise the work. Unlike the duty not to destroy another’s property, the duty to supervise is not a duty that exists between all persons. It exists between some persons (such as Handy Homes and the Donnellys) by virtue of a contract. Here, Mr. Handy’s duty to supervise was inherent in his relationship with the corporation, not contingent upon the contract or any duty owed generally to third persons. There is no independent negligence involved which violates a duty owed generally by any person to another. The basis of the complaint is within the scope of the contract which is a matter solely between the corporation and plaintiffs. Since Mr. Handy did not owe any personal duty and was not a party to the contract, plaintiffs’ allegations fail to state a cause of action against him, either in contract or in tort.

For these reasons, the judgment of the trial court is affirmed. Plaintiffs-appellants are to pay all costs.

AFFIRMED.

      .The clause states: “Now, to these presents intervenes Noble Handy, individually, solely for the purpose of agreeing to indemnify Owner for his costs, charges, etc., in connection with any Workmen’s Compensation claims made against Owner.”

      . For an analysis for this pleading device, see Bamber Contractors, Inc. v. Henderson Bros., Inc., 345 So.2d 1212 (La.App. 1st Cir. 1977).

      . “Corporations are intellectual beings, different and distinct from all the persons who compose them.”

      . This duty could be implied from any contract but is expressed specifically in the contract in this case as follows:
      “Contractor hereby covenants and agrees with Owner to erect and finish, in accordance with the conditions hereinafter set forth, in a good and workmanlike manner ... a residence on the property of Owner....” (Emphasis added.)


author: WATKINS, Judge.

text:
    Corinne McHardy KEIFE v. Gary Michael KEIFE.
    No. 14816.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Garic K. Barranger, Covington, for plaintiff, appellee.
    Richard Boutall, Metairie, for defendant, appellant.
    Before COVINGTON, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is a rule filed by Corinne McHardy Keife in St. Tammany Parish to increase child support due from her former husband, Gary Michael Keife, from whom she was granted a divorce in St. Tammany Parish dated May 15, 1978. In the present proceeding the former husband was represented by a curator ad hoc as Mr. Keife was living in England. The trial court granted an increase in child support payments to $2,100.00 per month in globo for the three children born of the marriage. Formerly, child support payments were set at $247.50 per month for each of the three children ($742.50 total). From the judgment setting child support at $2,100.00 per month for the three children, Gary Michael Keife has appealed through his curator ad hoc. We affirm.

The curator ad hoc did not timely file a brief on appeal, but rather, was granted until April 12, 1982, to submit a brief, he having verbally expressed an intention not to abandon the appeal. No brief on behalf of appellant has ever been filed, notwithstanding the granting of the additional time to file. We have only appellee’s brief. We will decide the appeal on the record as submitted.

Mr. Keife did not testify at the trial on the rule, nor was a deposition taken from him submitted. We do not know whether or not Mr. Keife maintains his domicile in Louisiana. No jurisdictional question was raised.

When child support was set at the time of the judgment of divorce, the record reveals Mr. Keife’s income was $2,800.00 per month. The testimony of Mr. Overton T. Harrington, who is with the legal department of Mr. Keife’s employer, J. Ray McDermott Company, Inc., reveals Mr. Keife’s present income is $7,413.70 per month. The trial court in oral reasons in fixing child support on the present rule used a rounded figure of $7,400.00 per month. Mr. Keife’s expenses are not known to us, except in an unsworn list of expenses that was properly ruled inadmissible in evidence. Considering that Mr. Keife’s income is approximately $7,400.00 per month, it appears to this court that child support in the amount of $2,100.00 per month is not excessive. In any event, we cannot say that the trial judge abused his discretion. See Kellogg v. Kellogg, 375 So.2d 200 (La.App. 2d Cir. 1979); Allbritton v. Allbritton, 393 So.2d 825 (La.App. 2d Cir. 1981).

We, therefore, affirm the judgment of the trial court, at appellant’s cost.

AFFIRMED.


text:
    Irene Roach VAUGHAN v. Charles Thomas VAUGHAN.
    No. 14818.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.

      Thomas H. Gray, Slidell, for plaintiff, appellant.
    Charles Thomas Vaughn, in pro. per.
    Before COVINGTON, COLE and WATKINS, JJ.
   COLE, Judge.

The issues presented here are whether or not the trial court committed manifest error in rendering judgment for less than the full amount of accrued child support payments, and in allowing defendant to repay the arrearages by weekly payment rather than in a requisite lump sum.

Plaintiff, Irene Roach Vaughan (now Bray), and defendant, Charles Thomas Vaughan, were legally divorced as of February 7, 1977. At that time plaintiff was granted custody of the two minor children and defendant was ordered to pay $25 a week alimony and $50 a week child support. Payments were to begin on February 26, 1977.

On April 10, 1981, plaintiff filed a rule for contempt claiming defendant owed $16,-125 in past-due alimony and child support. The claim for alimony was later dropped and a hearing was held on defendant’s obligation to pay $7,800 for child support. Plaintiff testified defendant had not made any payments in the three years prior to the filing of the rule. Defendant said he didn’t pay because the plaintiff would not allow him to visit the children and had told him she didn’t want anything he had. When asked if he had paid any child support at all, defendant answered as follows:

“I have paid some. I don’t have any records. I paid cash, you know. But, I don’t know how much it is or when.”

When questioned further about whether or not he had any receipts or any estimate of the amount he had paid, he stated:

“No, sir. It’s — I haven’t paid her anything in the last, I know, in the last year and a half. That was about the last time I seen the boys. I wanted to take them fishing and she wouldn’t let me take them fishing.”

Without assigning reasons the court granted judgment in favor of Mrs. Vaughan and against Mr. Vaughan in the amount of $3,900 to be repaid in payments of $10 a week until paid. Mrs. Vaughan filed this appeal.

The La.Code of Civ.P. art. 3945, sets forth the procedure for collection of past-due alimony.

“When the payment of alimony under a judgment is in arrears, the party entitled thereto may proceed by contradictory motion to have the amount of past due alimony determined and made executory. On the trial of the contradictory motion, the court shall render judgment for the amount of past due alimony." (Emphasis added.)

Because of the phrase “the court shall render,” it has been held the court has no discretion as to whether or not judgment will be rendered if there is proof payments are in arrears. Whitt v. Vauthier, 316 So.2d 202 (La.App. 4th Cir. 1975), writ refused 1975, cert. denied, 424 U.S. 955, 96 S.Ct. 1429, 47 L.Ed.2d 360; Bell v. Bell, 225 So.2d 753 (La.App. 4th Cir. 1969). Although the court did render judgment for the arrearages, it did so for only half the amount claimed.

Certainly if the defendant had shown he had in fact paid some amount of child support he would be entitled to a credit in that amount. Davis v. Davis, 405 So.2d 594 (La.App. 3d Cir. 1981). However, we find the record void of such evidence. We cannot accept defendant’s bald statement that he made “some payment” as evidence sufficient to grant him a credit. Indeed, it would be impossible to do so without knowing how much he had paid. Mrs. Vaughan testified unequivocally defendant had made no payments in the past three years. Unless defendant has some records or other evidence indicating the approximate dates and amounts of the payments he is not entitled to a credit. Elchinger v. Elchinger, 181 So.2d 297 (La.App. 4th Cir. 1965).

We are uncertain as to why the court rendered judgment for half the amount prayed for. Defendant admitted he had not made any payments for the past year and half. Perhaps the court interpreted this to mean the defendant had been current for the other year and a half of the three year period. For the reasons expressed above, we find no evidence which would support granting defendant a credit for any amount.

To the extent the trial court may have been acting equitably in reducing the amount of arrearages, we note equity will not nullify or reduce accumulated child support because child support is a vested property right until the judgment is altered or amended by a subsequent judgment or is terminated by operation of law. Theriot v. Melancon, 311 So.2d 578 (La.App. 3d Cir. 1975); Elchinger, supra. Any complaints defendant may have concerning the denial of his visitation rights must be brought to the attention of the court through the proper procedures and can in no way be used to reduce the amount of child support due.

We note the wife’s failure to make periodic demands for child support does not estop her from proceeding by rule to claim the accrued amount. Henson v. Henson, 350 So.2d 979 (La.App. 2d Cir. 1977); Blankenship v. Blankenship, 382 So.2d 982 (La.App. 1st Cir. 1980).

The second issue is whether or not the trial court acted properly in rendering judgment in terms that allow the defendant to repay the debt in weekly payments rather than in a requisite lump sum. We hold this was error in that the right to accrued alimony is a property right of the person in whose favor it is given and that person has a right to receive the arrearages in a lump sum. Gennaro v. Gennaro, 306 So.2d 756 (La.App. 4th Cir. 1975), writ refused 1975, appeal after remand 323 So.2d 513; Vinet v. Vinet, 184 So.2d 33 (La.App. 4th Cir. 1966).

For these reasons we amend the judgment in favor of Irene Roach Vaughan and against Charles Thomas Vaughan by increasing the amount to $7,800 (SEVEN THOUSAND EIGHT HUNDRED AND NO/100 DOLLARS), plus legal interest from date of judicial demand until paid. We reverse the judgment insofar as it ordered defendant to repay the money in weekly installments. We affirm the judgment in all other aspects. Defendant-ap-pellee Charles Thomas Vaughan is to pay costs.

REVERSED IN PART; AMENDED; AND, AS AMENDED, AFFIRMED.

      . This amount was claimed for the three years (or 156 weeks) prior to the filing of the rule. No claim was made for arrearages accruing more than three years prior since any such claim would be subject to defendant’s defense of prescription under La.Civ.Code art. 3538.


text:
    AMERICAN EXPRESS INCORPORATED v. Arman V. MELIKYAN.
    No. 14821.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Margaret A. Coon, Covington, for plaintiff-appellant American Exp. Inc.
    Stephen K. Peters, Baton Rouge, for defendant-appellee Arman V. Melikyan.
    Before COVINGTON, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is an action on open account brought by American Express Incorporated against Arman V. Melikyan. Melikyan applied for summary judgment, which was granted, plaintiff’s action being dismissed with prejudice.

The facts available to us from the pleadings are scant. American Express filed an action on open account, alleging that Melik-yan owed American Express the sum of $3,417.19. Defendant filed a motion for summary judgment not supported by affidavits. American Express filed an affidavit which alleged that Melikyan and Lent, Inc. held a credit account with American Express, and that Melikyan had signed “as individual applicant” a credit card application styled “American Express Card Application — Corporate Account” which contained the following language:

“The undersigned hereby requests that an account be opened for the undersigned and Card(s) issued as indicated herein renewed and replaced until the undersigned gives notice to cease and in connection therewith authorizes the receipt and exchange of credit information. The undersigned agree(s) to be bound by the terms and conditions that accompany each Card (original renewal) or replacement unless he cuts the Card in half and returns both halves. The individual applicant and the company will be liable for all charges incurred with the Card and all supplementary Cards issued on the account and each supplementary applicant will be liable for all charges incurred with the supplementary Card jointly and severally with the holder of the basic Card as provided in such terms and conditions.”

In brief filed with this court, Melikyan argues that he did not sign the credit application in his individual capacity, but as corporate president of Lent, Inc., and hence, under Solar Supply, Inc. v. Artic Air, Inc., 400 So.2d 924 (La.App. 1st Cir. 1981), Melik-yan is free from personal liability. Solar Supply involved a suretyship agreement signed by a corporate officer who gave his corporate title opposite his signature. We held that in order for a corporate officer to be held individually liable, his signature must be unqualified.

However, there is no affidavit by defendant in the pleadings indicating that Melik-yan signed the credit application in any capacity but, as we glean from plaintiff’s affidavit, “as individual applicant”. If Mel-ikyan had signed the credit application as corporate officer, he would be free from personal liability if we were to apply the holding in Solar Supply (a suretyship situation) to the present case. However, it is alleged in the affidavit filed by American Express that Melikyan signed the credit application “as individual applicant”, which would appear to mean “in his individual capacity”. In any event, we cannot be perfectly certain what the facts were either with regard to the liability of Lent, Inc. under the credit application or the individual undertaking of liability by Melikyan. Movant for summary judgment has the burden of affirmatively showing the absence of an issue as to a material fact and any doubt must be resolved against granting the motion for summary judgment. White v. Baker Manor Nursing Home, Inc., 400 So.2d 1168 (La.App. 1st Cir. 1981), writ denied 403 So.2d 68 (La.1981). Clearly, defendant Mel-ikyan failed to prove the existence of the facts necessary to show that Melikyan signed the credit application as corporate officer of Lent, Inc. or that Lent, Inc. was indeed in any way responsible for the debt. American Express is entitled to its day in court to prove its case.

The judgment of the trial court is reversed, and the case remanded, all costs to await a final determination of the matter.

REVERSED AND REMANDED.


author: LANIER, Judge.

text:
    Charles HEARD and Frank Murphy v. Phillip M. BLAKNEY.
    No. 14831.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.

      Jack T. Marionneaux, Plaquemine, for plaintiffs-appellees Charles Heard and Frank Murphy.
    William J. Guste, Jr., Atty. Gen., Arthur E. Stallworth, Staff Atty., Baton Rouge, for defendant-appellant State of Louisiana.
    Jack M. Dampf, Baton Rouge, for defendant-appellee Phillip M. Blakney.
    Before LEAR, CARTER and LANIER, JJ.
   LANIER, Judge.

This appeal concerns a claim by a State employee for reimbursement, pursuant to La.R.S. 13:5108.2, of attorney fees from the State of Louisiana for defending a lawsuit. The State answered this demand asserting that the employee was not acting within the scope and course of his employment with the State, and that La.R.S. 13:5108.2 was not applicable. The trial judge rendered judgment in favor of the employee and the State took this devolutive appeal. The employee answered the appeal seeking an increase in the attorney fees award for the cost of defending the appeal.

I. FACTS

At all times pertinent to these proceedings, Phillip M. Blakney was serving as the Regional Support Enforcement Services Supervisor of the Child Enforcement Program of the Department of Health and Human Resources of the State of Louisiana at its office located at 501 N. 7th Street in the City of Baton Rouge, Parish of East Baton Rouge, Louisiana. The office building and parking lot adjacent to the building were leased to the State of Louisiana. As part of his duties, Blakney was responsible for these premises. Charles Heard and Frank Murphy were both employees of this regional office and were subordinates of Blakney.

Prior to February of 1980, Murphy had been counseled concerning several instances of returning to the office late from lunch. On several occasions prior to February of 1980, Heard had been counseled concerning the manner and efficiency with which he handled his case files. Effective February 13, 1980, Blakney directed Heard’s immediate supervisor, Edward F. Sledge, to place Heard under intensive supervision for substandard case record maintenance. On February 15, 1980, Blakney recommended that Heard be terminated for failure to comply with the instructions given to him on February 13, 1980. A copy of this recommendation was given to Heard and, on that same day, there was a minor confrontation between Heard and Blakney.

On February 26, 1980, during regular office hours, Blakney observed Heard and Murphy in the vicinity of his personal automobile which was parked in the office parking lot. Blakney saw Heard smearing something on the windshield of his car. He did not observe Murphy doing anything. Blakney ordered both employees to return to the office building, received a statement concerning the incident from another employee who was present and attempted to call his immediate superior. When he was unable to reach his superior, Blakney called the Baton Rouge Police to investigate the incident. The Baton Rouge Police came and investigated the incident, but the record does not reflect what action, if any, was taken at this time. Thereafter, Blakney recommended administrative disciplinary action against both Heard and Murphy who were subsequently transferred out of this office to other jobs.

Approximately one month later, Blakney went to the office of the City Prosecutor “to file the charges”, which he believed to be criminal mischief. Later, according to Blakney, “someone from the City Prosecutor’s Office told me that my charges had been dismissed or something.”

On August 27, 1980, Heard and Murphy filed a suit for damages against Blakney for malicious prosecution. Within a day or two after being served with the pleadings, on September 9, 1980, Blakney made demand upon the attorneys for the Department of Health and Human Resources to provide him with a defense in this case. This request was denied by the Attorney General of Louisiana. Thereafter, Blakney retained private counsel who on September 18,1980, filed an answer to the original petition, a reconventional demand against Heard and Murphy and a third party demand against the State of Louisiana pursuant to LSA-R.S. 13:5108.2 for the cost of defense.

By order dated January 26, 1981, Heard, Murphy and Blakney jointly dismissed their respective main demands and the reconven-tional demand at their respective costs. This matter proceeded to trial on April 20, 1981, on the third party demand by Blakney against the State of Louisiana. The trial judge ruled from the bench that Blakney was acting within the scope and course of his duties with the Department of Health and Human Resources and rendered judgment in his favor for $750.00 for attorney fees, with legal interest from date of judgment and for all costs of the third party demand.

II. APPLICABLE LAW

Louisiana Revised Statutes 13:5108.-2(B) provides as follows:

“It is hereby declared to be the public policy of this state that the state shall hold harmless and indemnify each official, officer, and employee of the state from any financial loss arising out of any claim, demand, suit, or judgment in any court by reason of alleged negligence or other act by the official, officer or employee, if the official, officer, or employee, at the time damages were sustained, was acting in the discharge of his duties and within the scope of his office or employment and such damages did not result from the willful and wanton act or gross negligence of the official, officer, or employee.” (Emphasis added.)

The record shows that Blakney qualifies as an official, officer or employee of the state as defined in LSA-R.S. 13:5108.2(A) and that he timely made demand for a defense in accordance with LSA-R.S. 13:5108.2(0). The question in this case is whether or not Blakney “was acting in the discharge of his duties and within the scope of his office or employment ... ”. It is well settled that the particular circumstances of each case will determine whether an employee’s conduct is within or without the scope and course of his employment. Miller v. Keating, 349 So.2d 265 (La.1977). If an employee’s conduct is closely related in time, place and causation with his employment duties, he is deemed to be within the scope and course of his employment. LeBrane v. Lewis, 292 So.2d 216 (La.1974); Cain v. Doe, 378 So.2d 549 (La.App. 4th Cir. 1979). The test is whether the employee is performing some function for his employer which he was employed to perform. Weysham v. New Orleans Public Service, Inc., 385 So.2d 19 (La.App. 4th Cir. 1980); Walters v. Sentry Insurance Company, 354 So.2d 1087 (La.App. 2nd Cir. 1978).

III. SCOPE AND COURSE OF EMPLOYMENT

The principal allegations of Heard and Murphy against Blakney appear in paragraphs 2, 3 and 4 of the petition as follows:

“2.
“On the 26th day of February, 1980, defendant maliciously and without probable cause instituted criminal proceedings against petitioners in the City Court for the City of Baton Rouge as will more fully appear herein after, (sic)
“3.
“On the 26th day of February, 1980, defendant caused petitioners to be issued summonses for the charges of criminal mischief.
“4
“On February 26, 1980, the defendant caused an employee of his, namely, June Gillis to issue a statement as a witness against plaintiff’s (sic) herein, when in truth and in fact, she told the defendants that she had not seen the petitioners do any wrong.”

The evidence of record shows that on February 26, 1980, Blakney was the supervisor of the state office and premises located at 501 N. 7th Street in Baton Rouge; that Heard and Murphy were his subordinates; and that the incident in question took place on state leased property during regular office hours. It can reasonably be inferred that the incident is related to supervisory procedures instituted by Blakney with reference to Heard and due to Blakney’s recommendation that Heard’s employment be terminated. Blakney attempted to counsel with his immediate superior on what action to take, but was unable to contact him. Blakney’s personal car was. used by him for state business once or twice a week and he was reimbursed by the state for such use. Under all of these circumstances, the trial judge could reasonably conclude that Blak-ney acted within the scope and course of his employment.

The fact that Blakney, subsequent to this incident, went to the City Prosecutor’s Office to “file charges” is not determinative. The thrust of the claim by Heard and Murphy centers around the incident of February 26,1980, and not the subsequent trip to the prosecutor’s office. This subsequent trip merely culminated a course of conduct which was initiated on February 26.

Under all of these facts and circumstances, it is our opinion that Blakney was reasonably acting within the scope and course of his employment with the State on February 26, 1980, and subsequent thereto. This conclusion is supported by the facts of record. There is no basis for reversal. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

IV. ATTORNEY FEES

As a result of the Attorney General’s refusal to provide a defense for Blak-ney, he was required to retain private counsel at a rate of $60.00 per hour. In the trial court, Blakney introduced evidence showing that his attorneys had performed 12.16 hours of work. The trial judge fixed the attorney fees for the services in the sum of $750.00. This award is clearly within the much discretion granted to trial judges and is affirmed.

On appeal Blakney has filed in the record a supplemental statement from his attorneys showing an additional 12.33 hours of work attendant to the appeal for a total of 24.49 hours of work performed. It is our opinion that an additional fee of $750.00 should be awarded for the time and work involved in defending this appeal.

V. CONCLUSION

For the reasons assigned, the judgment of the trial court is affirmed, and there will be judgment in favor of Phillip M. Blakney and against the State of Louisiana in the sum of $750.00 with interest thereon at the rate of 10% per annum from September 18, 1980, until September 11, 1981, and thereafter at 12% per annum, until paid, and there will be further judgment in favor of Phillip M. Blakney and against the State of Louisiana in the sum of $750.00, with interest at the rate of 12% per annum from May 21, 1982, until paid, and for costs in the amount of $303.89.

AFFIRMED.

      . There has been no claim raised by the State that the suit resulted “from the willful and wanton act or gross negligence of the official, officer, or employee.”

      . There is no evidence of record to show exactly what Blakney did in the prosecutor’s office. There is no evidence to show if the City Prosecutor declined prosecution or filed charges and then entered a nolle prosequi. There is no evidence of record to show if Heard and Murphy were arrested or summonsed to appear in court.

      . La.C.C. arts. 1938 and 2924; La.R.S. 13:5117; Deutsch, Kerrigan & Stiles v. Rault, 389 So.2d 1373 (La.App. 4th Cir. 1980); La.R.S. 13:5112.


author: CARTER, Judge:

text:
    LANIER BUSINESS PRODUCTS, INC. v. LINCH INTERNATIONAL TRUCKS, INC.
    No. 14837.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Thomas K. Kirkpatrick, Baton Rouge, for appellant.
    Michael V. Clegg, E. Wade Shows, Baton Rouge, for appellee.
    Before LEAR, CARTER and LANIER, JJ.
   CARTER, Judge:

This is an action ex contractu in which Lanier Business Products, Inc. (hereinafter referred to as Lanier) sued Linch International Trucks, Inc. (hereinafter referred to as Linch) for recovery of four installments of $500.02 each which Lanier alleges were owed under a “purchase security agreement.” After trial on the merits, judgment was rendered in favor of defendant Linch. Plaintiff Lanier has perfected this appeal. We affirm.

Most of the facts were stipulated, and the only dispute concerns the number of payments due under the “purchase security agreement”. Plaintiff contends that under the agreement 16 payments, each in the amount of $500.02, were due, and defendant contends that the agreement called for 12 payments and that that was the extent of defendant’s obligation. The cash price agreed upon by the plaintiff and defendant at the time of sale is not disputed. Neither is it disputed that the down payment made by the defendant, plus 12 payments actually made, exceeded the cash price upon which the parties agreed.

Although the contract specifically provides for 12 payments of $500.02 each, to be made quarterly, plaintiff contends that the number 12 was inadvertently written and that the number 16 should have been written instead. Lanier further contends that the amount claimed in excess of the cash price is interest due under the installment contract. In support of this contention, La-nier points to the fact that in the blank for “no. of months”, 48 is written, thus indicating 16 quarterly payments. In further support of this position, Lanier refers to the written statement in the contract, “service fully covered for full four years....”, and to another statement indicating that at the end of four years, the machine was to belong to Linch.

The printed contract in question is one of those regularly used by Lanier’s business and bears Lanier’s logo. The blank spaces of this contract, including those for the number of payments, the amount of payments, and the number of months, were completed by Mr. Jim Parr, Lanier’s representative. It was stipulated that if Mr. Parr had testified, he would have stated that he made an error in writing that 12 payments rather than 16 were to be made by Linch. It was further stipulated that if Mr. Andy Gloeckner were called to testify, that he would testify that his understanding was that Linch would only be responsible for $6,111.96. Linch contends that it is clear from the face of the contract that the price of the machine was $6,111.96, and that when this price is divided by twelve payments, the result approximately equals $500.02, the amount of each payment actually made. He further contends that no mistake was made in writing the number 12 in the space for the number of quarterly payments and argues that it is equally as feasible that if a mistake was made, it was made in writing 48 in the space for number of months instead of 36.

Without question, the contract is ambiguous. Whenever there is anything doubtful in a contract, courts should endeavor to seek out and apply the true intent of the parties. Superior Oil Company v. Cox, 307 So.2d 350 (La.1975); Lanneau v. Capital Transportation Corporation, 292 So.2d 810 (La.App. 1st Cir. 1974); La.Civ.Code art. 1950.

Lanier strenuously contends that it was the common intent of the parties that 16 payments be made amounting to the cash price agreed upon, plus interest. In support of this contention, Lanier points to the fact that it was stipulated that Jim Parr would have testified that he made a mistake in writing 12 rather than 16 in the number of payments space, the fact that the contract provided for a 48 month term, and the statement written on the contract that service was to be fully provided for four years, after which time the machine was to belong to Linch.

Linch contends that the contract especially provided for 12 payments, that upon completion of 12 payments, the balance due as indicated on the contract would have been liquidated, and further that the contract makes no express reference to interest. Although it is clear that payments were to be made on an installment basis, nowhere in the contract does it appear that the parties intended for interest to be paid.

We cannot say that the contract clearly indicated that it was the common intention of the parties that 16 payments, equalling the cash price plus interest, were to be made by Linch. It has long been established law that ambiguities or contractions in a contract are to be construed against the party who prepared the contract. La. Civ.Code arts. 1957 and 1958; Kuhn v. Stan A. Plauche Real Estate Company, 249 La. 85, 185 So.2d 210 (1966); Louisiana Paving Co. v. Louisiana Dept. of Highways, 205 So.2d 445 (La.App. 1st Cir. 1967); Grace v. Morales, 210 So.2d 60 (La.App. 1st Cir. 1968). This rule of construction has been held applicable to sales contracts. Light v. Crowson Well Service, Inc., 313 So.2d 803 (La.1975); Tullis v. Aertker, 352 So.2d 415 (La.App. 3rd Cir. 1977). See also La.Civ. Code art. 2474.

In Light v. Crowson Well Service, Inc., supra, a case somewhat analagous to the present one, there was a conflict in a sales contract between two provisions indicating the extent of the mineral interest conveyed. The court concluded that this ambiguity should be construed against the party who had prepared the contract, i.e., the vendee. Since the ambiguity in the instant case does not deal with an essential requisite of sale, but concerns whether or not it was the common intent of the parties for interest to be paid (another way for the installment contract to be for a larger price than the cash price), this ambiguity must be construed against the vendor, Lanier, who prepared the contract and was responsible for it.

Under the circumstances in this case, where the vendor has prepared the contract with conflicting provisions and the common intent of the parties cannot be ascertained, the provisions of arts. 1957 and 1958 of the La.Civil Code are applicable, and the ambiguities in the instrument should be resolved against the party who confected the instrument.

For the above and foregoing reasons, we affirm the judgment appealed at the appellant’s costs.

AFFIRMED.

      . The purchase security agreement is found in “Appendix A” of this opinion.

      . The cash price listed in the contract was $6,111.96, and the total amount paid including the down payment was $6,611.43.

      . Mr. Gloeckner was the party who entered into the contract on behalf of defendant Linch.