author: COLE, Judge.

text:
    Timothy BULLARD et ux. v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Office of Highways.
    No. 13641.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    Rehearing Denied Jan. 26, 1981.

      Raymond Morgan Allen, Lafayette, for defendant-appellee J. B. Talley & Co.
    Owen M. Goudelocke & Lawrence A. Durant, Baton Rouge, for defendant-appellant Highway Dept.
    Paul H. Spaht, Baton Rouge, for defendants-appellees Howard Needles, Tammen, etc.
    Robert A. Hawthrone, Jr., Baton Rouge, for defendant-appellee Barnard & Burke.
    Donald T. W. Phelps, Baton Rouge, for defendant-appellee St. Paul Fire.
    Roger M. Fritchie, Baton Rouge, for plaintiff-appellee.
    Paul Marks, Jr., Baton Rouge, for defendant-appellee Employee’s Co.
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

The State of Louisiana, through the Department of Transportation and Development (DOTD) appeals a summary judgment granted in favor of Employees Commercial Union Insurance Company of America. DOTD was named as a defendant in a wrongful death and survival action filed by Timothy Bullard. Bullard’s son, Michael Bullard, was seriously injured on February 23, 1977 when a rotten tree fell and struck his automobile as he was driving along Interstate 10 in West Baton Rouge Parish. After Michael’s death, Timothy Bullard filed suit against DOTD and several other defendants, including J. B. Talley & Company, Inc., a construction company who performed work on the section of Interstate 10 in which the rotten tree was located. DOTD made a third party demand against J. B. Talley and against Commercial Union. Commercial Union is the surety on a contractor’s bond dated July 28, 1970, written in favor of J. B. Talley. DOTD alleged the bond guaranteed Commercial Union would indemnify DOTD for any loss caused by the negligence of J. B. Talley. The contract between J. B. Talley and DOTD provides as follows:

“The Contractor shall and will provide and furnish all materials, equipment and labor and perform the work required to build, construct and complete in a through (sic) and workmanlike manner, to the satisfaction of the Chief Engineer of the Department of Highways, State project No. 450-07-06 and 450-08-08....”

The accompanying bond provides as follows:

“... J. B. Talley & Company, Inc., as Principal, and the Employers (sic) Commercial Union Insurance Co. of America ... as Surety, are held and firmly bound, in solido, unto the Department of Highways and to all subcontractors, workmen, laborers, mechanics, and furnishers of materials and equipment, jointly, in the full sum of SEVEN MILLION EIGHT HUNDRED NINETY-SEVEN THOUSAND THREE HUNDRED SIXTY-SIX AND 78/100 ($7,897,366.78) ....
“... J. B. Talley & Co., Inc. ... shall indemnify and save harmless said Department of Highways against any loss or damage of whatever kind and character arising or occasioned by deeds of negligence of said principal, his agents, servants and employees, in the prosecution of the work, or by reason of improper safeguards or incomplete protection to the work; and shall pay all bills for materials and labor entered into the construction of said work, or used in the course of the performance of the work; then this obligation shall be null and void; otherwise to remain in full force and effect.”

Commercial Union filed a motion for summary judgment, asserting the bond was a statutory bond as required by La.R.S. 38:2241, et seq. (The Public Works Act) and therefore any language in the bond not required by statute was meaningless. Finding there was no coverage for tort claims under The Public Works Act and agreeing with Commercial Union’s argument that the jurisprudence mandated any additional language be ignored, the trial judge found there was no genuine issue of material fact and issued the summary judgment under La.Code Civ.P. art. 966. Because of the Supreme Court’s recent opinion in Construction Materials, Inc. v. American Fidelity Fire Insurance Company, 388 So.2d 365 (La.1980), we find summary judgment is inappropriate in this case.

In Construction the bond in question guaranteed if the contractor defaulted the surety would “pay all bills for materials ... used in the course of the performance of the work.” La.R.S. 38:2241 provides the surety shall be responsible for the following:

“... all work done, labor performed, or material or supplies furnished for the construction, alteration, or repair of any public works, or for transportation and delivery of such materials or supplies to the site of the job by a for hire carrier, or for furnishing materials or supplies for use in machines used in the construction, alteration, or repair of any public works.”

The claim in Construction was by a supplier of signs and barricades used during the construction of certain drainage structures. Based upon the jurisprudence in effect at that time, this court reversed the trial court’s judgment holding that the language in the bond granting coverage for claims not provided for by statute was superfluous. Construction Materials, Inc. v. American Fidelity Fire Insurance Company, 383 So.2d 1291 (La.App. 1st Cir. 1980). The Supreme Court reversed this court, holding “The Public Works Act does not prohibit a contractor’s surety from voluntarily contracting to pay claims to unpaid workmen or suppliers who are unprotected by the act; the act assures each person protected by the contractor’s bond his right of action. La. R.S. 28:2247.”

Louisiana courts have consistently held that regardless of the language in the bond, only those materials which have been incorporated into the public work are entitled to the protection of La.R.S. 38:2241 and 2242. Louisiana Highway Commission v. McCain, 197 La. 359, 1 So.2d 545 (1941); Patent Scaffolding Co. v. Ross Corporation, 172 So.2d 364 (La.App. 4th Cir. 1965). Under this jurisprudence the trial judge was justified in concluding the additional language in the bond was not to be given any effect thereby eliminating issues of material fact and entitling the surety to summary judgment as a matter of law. However, in light of the implications of the recent decision in Construction it is our view the language concerning tort liability can be given its full effect. We are bolstered in this belief by basic provisions of our law relating to the sanctity of contracts and to the freedom to enter into contracts with respect to all things not forbidden by law. LSA-Const. Art. 1, § 23: LSA-C.C. art. 1764.

The result attained by us is not without an awareness of the underlying purpose of The Public Works Act. Nor is it without an awareness of possible prejudice to the claims of laborers and materialmen in instances where recovery is allowed from the surety on a tort claim. These considerations were noted by us in Ryder v. Baco Realty Co., 207 So.2d 155 (La.App. 1st Cir. 1968). However, in Ryder, we stated: “An intention to extend the coverage of a contractor’s bond beyond those limits [protection of laborers and materialmen] should be expressly stated, and we find no such language in Continental’s bond.” (p. 157) Ryder dealt with private construction, not with a public work. We do not think this distinction lessens the weight to which contractual considerations are entitled. Here, express language is found in the bond and we must conclude it was knowingly agreed upon for the additional protection of appellant.

We note also the bond in this case obligated the surety for the full amount of the contract price. R.S. 38:2241 requires only fifty percent of the contract price for the faithful performance of the contract “with an additional obligation for the payment by the contractor ... for all work done, labor performed, or material or supplies furnished .... ” This permitted flexibility in the amount of the bond indicates a variation in risk factors with the premium to be correlated. The amount of the premium undoubtedly controls the extent of the obligations the surety is willing to underwrite. With the premium here based upon one hundred percent of the contract price, it may well be the surety was adequately compensated for the tort liability included in the bond. In any event, it is a matter which addresses itself to commerce and not to our review.

For the foregoing reasons, the judgment of the trial court is reversed and this case is remanded for further proceedings in accordance with law. Appellee is to pay all costs of this appeal.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: COVINGTON, Judge.

license: Public Domain

text:
    Louise C. SANDERS v. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, East Louisiana State Hospital.
    No. 13143.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    Rehearing Denied Feb. 11, 1981.

      Mary E. Howell, Howell, Kellogg & Bayer, New Orleans, for appellant.
    Otha Curtis Nelson, Sr., Dept, of Health & Human Resources, Baton Rouge, for ap-pellee.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COVINGTON, Judge.

This case is before us on remand from the Supreme Court of Louisiana for the purpose of considering the merits of the appeal by Louise C. Sanders, appellant, from a ruling by the Louisiana State Civil Service Commission upholding her discharge from her employment as a Cook I, serving with permanent status, for attempted theft of food from the hospital kitchen.

When the case was originally before us, 383 So.2d 1053 (La.App. 1 Cir. 1980), we felt obligated to follow our Supreme Court’s decision in Boucher v. Division of Employment Security of the Department of Labor, 226 La. 227, 75 So.2d 343 (1954); hence, we sustained the appellant's peremptory exception on the ground that the appellant’s removal was improper in view of the fact that the appointing authority failed to comply with Rule 12.3 of the Civil Service Commission Rules, which requires the appointing authority to furnish the Director a copy of the written letter of termination within 15 days of notification of the employee. This Rule was not complied with in the instant case.

The Supreme Court granted writs, 384 So.2d 986 (La.1980), and held that Rule 12.-3(a)(3) was merely directory and that the disciplinary action taken should not be invalidated. It was the opinion of the Supreme Court that the requirement that the Director be furnished with notice of the disciplinary action within 15 days of the notification to the employee was not essential to the employee’s appeal because the Director no longer performs a substantive function in disciplinary appeals; see Civil Service Rule 15.10(c). The Court then overruled the Boucher case to the extent that it was contrary to its Sanders decision. Our judgment was reversed and the case was remanded to us for further proceedings. Sanders v. Department of Health & Human Resources, 388 So.2d 768 (La.1980).

The record shows that on November 15, 1978, at about 6:30 P.M. the appellant was observed by a correctional security officer carrying two large bags, which upon investigation disclosed that they held hospital foodstuff. At first appellant lied about the stealing of the food, but later admitted the attempted theft. It is stipulated that appellant attempted to steal food from the hospital kitchen.

On November 16, 1978, the hospital superintendent sent Mrs. Sanders a letter notifying her of her immediate suspension and her dismissal as of the close of business on Friday, November 17,1978. In the letter of dismissal the reasons stated were as follows:

“On Wednesday, November 15, 1978, at approximately 6:30 P.M., you were observed by Mr. Harry Bezar, Correctional Security Officer IV, carrying this food stuff through the gate at Forensic. As you were leaving the grounds, Mr. Bezar noticed you were carrying two large bags and upon investigation discovered that they contained two loaves of bread and approximately eight dozen eggs. At that time, you stated the bread had been purchased at the Canteen and the eggs had been given to you by a relative. On Thursday, November 16, 1978, in the presence of witnesses you admitted that you had actually taken this food stuff from the hospital.”

As the basis of her appeal filed on December 18, 1978, the appellant denied the allegations and asserted that there was no just cause for her dismissal. She also averred that the letter of dismissal was insufficient in that it failed to apprise her of the names of the witnesses against her so as to enable her to prepare her appeal. The appellant also alleged that the penalty was excessive, arbitrary and discriminatory, contending that black employees were subject to more severe penalties than white employees similarly situated, consequently the penalty of termination was tainted by racial discrimination. She requested reinstatement to her position as Cook I, with full back pay and benefits. After the hearing, the Commission upheld the dismissal of appellant, and appellant appealed.

At the hearing before the Commission and in her appeal to this Court, appellant concedes that she received proper notice and that the appointing authority had cause for disciplinary action. The gist of the appeal (on remand) resolves itself into two questions: (1) the severity of the penalty, and (2) the discriminatory nature of the penalty.

Under Louisiana Constitution (1974) Article 10, § 12, decisions of the Civil Service Commission are subject to review on appeal on both questions of law and fact. See Petrus v. Guin, 378 So.2d 1016 (La.App. 2 Cir. 1979); Brown v. L.H.H.R.A., Lake Charles Mental Health Center, 346 So.2d 758 (La.App. 1 Cir. 1977).

With regard to the evaluation of evidence, the standards of appellate review of findings of fact in Civil Service Commission cases must necessarily be the same as those which exist with regard to cases arising in the trial courts. The reviewing court must give great weight to the factual conclusions of the trier of fact. Herbert v. Department of Police, 362 So.2d 1190 (La. App. 4 Cir. 1978).

The testimony of the security officer, Harry Bezar, establishes that appellant attempted to steal bread and eggs from the hospital kitchen. When first questioned about the taking of the food, appellant insisted that it was given to her, thus lying about her guilt. No evidence of mitigating circumstances was offered. Connie Wybal, the dietician in charge of the kitchen at the hospital, testified to the problem which the hospital had with theft from the kitchens. The dietician stated that she had recommended that the penalty, in all cases of theft or attempted theft, be termination.

There was some indication that perhaps previous hospital administrations had not been as diligent in protecting state property from theft as they might have been, but the evidence offered on this point is not convincing. Be that as it may, charges of improper conduct, though condoned by an employee’s superior, may nevertheless be grounds for disciplinary action brought by a subsequent occupant of the superior position if such charges of improper conduct are the real motive for the disciplinary action. Toms v. Louisiana Health & Human Resources Administration, Division of Management, 349 So.2d 941 (La.App. 1 Cir. 1977), writ denied, 351 So.2d 162 (La.1977); Ragusa v. Department of Public Safety, Division of State Police, 238 So.2d 193 (La.App. 1 Cir. 1970), writ refused 256 La. 885, 239 So.2d 542 (1970). The record is convincing that the improper conduct, i. e., attempted theft, was in fact the real motive for the dismissal in the instant case.

We find from the record that appellant was discharged for cause, meaning conduct which impairs the efficiency of a public service and which bears a real and substantial relation to the efficient and orderly operation of the public service in which the employee is engaged. Hamilton v. Louisiana Health & Human Resources Administration, 341 So.2d 1190 (La.App. 1 Cir. 1977), writ refused 344 So.2d 4 (La.1977).

We also find that the appointing authority has discharged its burden of proving cause for dismissal of the plaintiff. Honesty is essential to the efficient operation of a public institution. Appellant’s attempted theft of foodstuffs and her lying about it justify her dismissal.

The decision of the Commission to uphold the termination of appellant by the appointing authority on the basis that her transgression was sufficiently serious to justify dismissal is neither arbitrary nor capricious, and is certainly well within the authority accorded to the Commission by the Constitution. La.Const. (1974) Art. 10 §§ 8 and 12.

Appellant next argues that the termination was discriminatory because of her race or sex, in that similarly situated employees of another race or sex have received “disparate treatment without any rational basis for this differentiation.” The evidence does not support this argument. As reflected in the summary sheet in evidence, every employee (whether male or female, black or white) who was involved in theft or attempted theft, either was dismissed, resigned or retired. As recited above, the appellant’s supervisor testified that she always recommended termination in such cases, because she considered it the only way to control stealing.

Under Louisiana law, in a proceeding before the Civil Service Commission the employee has the burden of proving discrimination. La.Const. (1974) Art. 10, § 8(B); Bernard v. L.H.H.R.A.-Southwest Charity Hospital of Lafayette, 358 So.2d 653 (La.App. 1 Cir. 1978). We do not believe that the evidence offered herein by appellant is sufficient to meet the plaintiff’s burden of proof. We therefore agree with the Commission’s determination that she has failed to prove discrimination. See Doré v. Louisiana Health and Human Resources Administration, Division of Family Services, 361 So.2d 229 (La.App. 1 Cir. 1978). Our review of the record fails to reveal any manifest error on the part of the Commission in finding that she failed to prove that her dismissal was due to discrimination. See Cilano v. Department of Employment Security, 356 So.2d 458 (La.App. 1 Cir. 1977).

We find, as did the Commission, that the appointing authority did not err in the exercise of its discretionary judgment of the discipline for this offense. The penalty was not too severe for the offense committed. Petrus v. Guin, supra. We likewise find no. inconsistency or discriminatory application of discipline among employees at this institution.

Accordingly, we affirm the opinion and judgment of the Louisiana Civil Service Commission, denying appellant’s appeal to the Commission and upholding the termination of appellant by the appointing authority-

Appellant is cast with costs.

AFFIRMED.


text:
    Wilbert BLANCHARD v. Vincent J. SOTILE et al.
    No. 13816.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    Rehearing Denied Feb. 11, 1981.
    Risley C. Triche, Napoleonville, for Wilbert Blanchard.
    Richard G. Creed, Jr., Baton Rouge, for Vincent J. Sotile and Louisiana Ins. Guaranty Ass’n.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

Defendants, Vincent J. Sotile and Louisiana Insurance Guaranty Association, have appealed the judgment of the District Court in favor of plaintiff, Wilbert J. Blanchard, for damages in the amount of $49,200.00, with the liability of the insurer limited to $4,000.00, sustained in a restaurant fire. The plaintiff has answered the appeal, seeking an increase in the damages awarded to the sum of $100,000.00, and an increase in the award against the insurer to the amount of $5,000.00. The primary issue on appeal is whether the trial court manifestly erred in concluding that plaintiff had proved the fire was caused by the negligence of Sotile.

During the early morning hours of April 25,1977, a fire occurred in a building owned by Blanchard, located in Pierre Part, Louisiana. The building was leased to Vincent J. Sotile; and at the time of the fire it was being used by the lessee as a restaurant, known as Vince’s Restaurant. It was being operated by Sotile, and was open for business only four days a week, on each Thursday, Friday, Saturday and Sunday. It remained closed the other three days of the week unless Sotile had a special banquet. The fire which gave rise to this suit occurred on a Monday morning. The building was closed and unoccupied when the fire started. The restaurant had been closed since 11:00 P.M. on Sunday night, April 24. After locking up the premises, Sotile went to his home in Baton Rouge, where he was when he learned of the fire. Passersby discovered the fire at about 6:00 A.M. on April 25, 1977, and the Pierre Part volunteer fire department was called; however, the fire had progressed to such an extent that it was beyond control and the building and its contents were substantially, if not totally, destroyed.

After the fire, the State Fire Marshal’s office made an investigation and concluded that the fire had started on the north wall of the kitchen. This investigation ruled out arson as a cause; however, that office was unable to determine its specific cause.

Concerning the testimony of the expert witnesses, there is a direct conflict of opinion. Defendant’s expert, Joseph E. Leinim-ger, a consulting engineer in the fields of electrical and mechanical engineering, testified relative to the fuse boxes and the Hotpoint deep fat fryer which were in the restaurant at the time of the fire. Mr. Leinimger did not visit the scene, but based his opinion on depositions taken in the case, photographs and an inspection of the switch of the fryer. He ruled out the fuse boxes as a possible cause. Mr. Leinimger said that from his inspection of the switch, he was unable to tell whether the electric current was passing through at the time of the fire so as to conclude the switch was in the on or off position. From his investigation he was unable to form an opinion as to the fire’s cause.

As opposed to Leinimger’s testimony, Leonard C. Adams, Ph.D., a professor in the department of electrical engineering at L.S.U., testified on the basis of a visit to the scene of the fire on April 30, the Saturday following the fire, an examination of the fuse boxes and the deep fat fryer. Dr. Adams expressed the opinion that the fire started on the north wall of the kitchen of the restaurant where the cooking apparatus was located. He identified the oil or grease as too low in the pan, which was a potential source of the fire. The internal component parts of the switch were so badly damaged that it was impossible to tell how the switch on the fryer operated. He stated that the external conductor gave some evidence that it had been energized at the time of combustion, indicating that the fryer was operating. It was Dr. Adams’ opinion that the most probable cause of the fire was that the deep fat fryer was left on; and when the temperature of the cooking fat reached the flash point, the fire started. He expressed the view that “an absolute identification of the technical origin of the fire is not possible.” He further noted that he could not identify the specific mechanism; however, he considered the fryer as “a very probable cause.” Thus, there is in the record only one expression of an opinion as to the cause of the fire, that by the plaintiff’s expert. The record does not reflect that he made any electrical or mechanical tests, but that his opinion was mainly based on his visual examination of the fryer switch. There was other evidence suggesting other reasonable hypotheses, that the refrigerator unit may have been defective, water from rain could have leaked down the light fixtures, that there may have been a power failure or a sudden power surge. None of these hypotheses involves negligence on the part of Sotile.

Sotile testified to the high degree of care he took with respect to the turning off of the deep fat fryers. In addition, he testified that he closed the restaurant Sunday nights and did not usually reopen until Thursday. Therefore, it was common practice to clean the deep fat fryers before closing on Sundays. Although Sotile did not remember that he actually turned off the fryer on that particular occasion, he did testify that he followed the same procedure for checking the fryers at closing time. Without mishap, he had followed this same procedure all during the time that he operated the restaurant.

The case at bar turns on the question of burden of proof, and involves a determination of whether the evidence as a whole establishes that the fire, more probably than not, was caused by the fault of the defendant, Vincent J. Sotile.

The general rule is that negligence is not presumed, and the burden of proving negligence by a preponderance of the evidence rests on the party alleging it. The proof of negligence may be by direct or circumstantial evidence; however, a party relying upon circumstantial evidence has borne his burden of proof only if the evidence taken as a whole shows that the defendant’s fault was the most plausible cause of the fire and no other factor can as reasonably be ascribed as the cause. The probability of the fire having been caused by the defendant’s fault must preponderate over the probability of causation from any other factor. Myers v. Morrow, 367 So.2d 1297 (La.App. 4 Cir. 1979); Romero v. Butcher Air Conditioning Company, 255 So.2d 132 (La.App. 3 Cir. 1971).

As the Court stated in Morales v. Houston Fire and Casualty Company, Inc., 342 So.2d 1248, 1250 (La.App. 4 Cir. 1977), writ denied, 345 So.2d 49 (La.1977):

“Although the circumstances surrounding the occurrence of a fire may give rise to an inference that a particular defendant was negligent, that negligence is not presumed from the mere happening of the fire, because there can be many causes of fires. The determination of preponderance depends on whether the evidence taken as a whole shows that the particular defendant’s negligence was the most plausible or likely cause of the fire.”

We conclude that plaintiff has failed to prove by a preponderance of the evidence that Sotile’s negligence caused the fire and resulting damages. It is only by showing sufficient circumstances, raising inferences of defendant’s negligent causation to outweigh other reasonable explanations, that a plaintiff bears his burden of proof in a fire loss. The plaintiff herein has failed to sustain that burden. See Milano v. American Rent-All, Inc., 310 So.2d 146 (La.App. 4 Cir. 1975), writ denied 313 So.2d 599 (La.1975); Romero v. Butcher Air Conditioning Company, supra. While there is circumstantial evidence from which one could reasonably conclude that the fire was caused by the defendant’s employees leaving the deep fat fryer’s switch turned on, there is a considerable amount of circumstantial evidence from which one could just as reasonably conclude that the fire was not caused by any fault attributable to the defendant. In fact, the preponderance of the evidence is to the effect that because of the nature and extensiveness of the damage, a specific cause of the fire could not reasonably be determined.

For the foregoing reasons, we reverse the judgment of the District Court and dismiss plaintiff’s demand against the defendants. The plaintiff-appellee is cast for all costs.

REVERSED.

      . Sotile was insured by Reserve Insurance Company, which was named as a party defendant. When that company became insolvent, Louisiana Insurance Guaranty Association was substituted as a party defendant and assumed the defense of the suit.

      . The doctrine of res ipsa loquitur, although briefly referred to in appellee’s brief, was not ruled upon by the lower court. This doctrine may not be invoked where it can reasonably be concluded that the damage resulted from circumstances not involving negligence on the part of the defendant. See Romero v. Butcher Air Conditioning Company, 255 So.2d 132 (La. App. 3 Cir. 1971).


text:
    Charles Edward KLOHN v. LOUISIANA POWER & LIGHT COMPANY.
    No. 13827.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    Rehearing Denied Feb. 11, 1981.
    H. Alva Brumfield, III, and William Brumfield, of Brumfield & Brumfield, Baton Rouge, counsel for plaintiff-appellant, Charles Edward Klohn.
    Eugene G. Taggart, of Monroe & Lem-ann, New Orleans, counsel for defendant-appellee, Louisiana Power & Light Co.
    John H. Musser, IV, New Orleans, counsel for intervenor-appellee, Continental Casualty Co.
    John F. Pugh, Jr., Thibodaux, counsel for third party defendant-appellee, City of Thi-bodaux.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

Plaintiff-Appellant, Charles Edward Klohn, brought this damage action against defendant, Louisiana Power & Light Company, for injuries sustained while doing mechanical work as a mechanic’s helper in connection with the repair of a diesel engine as part of an electrical power plant operated by Louisiana Power & Light Company under an operating agreement with the City of Thibodaux.

Plaintiff was an employee of Cooper Energy Services, which was in the business of performing mechanical work and repairs on diesel engines. Defendant was in the business of constructing, installing, using, operating and maintaining electrical energy and power plants for generation, transmission and distribution of such energy, including the various machinery, motors, power plants and structures used in connection therewith. Defendant’s activities included the operation of the Thibodaux power plant.

On June 27, 1979, the day of the accident, there was in effect a contract between the Company and Cooper for certain mechanical work and repairs on certain diesel engines at the Thibodaux power plant. While engaged in the work on the diesel engine, plaintiff fell through an open grating resulting in serious and painful injuries to him.

Louisiana Power & Light Company obtained a summary judgment on the ground that it was the statutory employer of Klohn pursuant to LSA-R.S. 23:1061, and as such was insulated from tort liability to plaintiff, whose remedy was exclusively in workmen’s compensation.

The record supports the summary judgment in favor of Louisiana Power & Light Company. The affidavit and deposition of Gerald D. McLendon, Senior Vice-President of Operations for the Company, and the contract (purchase orders) clearly show that on the date of the accident Klohn was employed in performing work at the Thibodaux plant pursuant to the contract when he was injured, and that the mechanical work and repairs to the diesel engines in which Klohn was engaged were an integral and necessary part of the regular trade, business and occupation of Louisiana Power & Light Company. There was no evidence to contradict the employment situation. Boudreaux v. Boudreaux, 369 So.2d 1117 (La.App. 1 Cir. 1979), writ denied, 371 So.2d 615 (La.1979).

Under these circumstances, summary judgment was properly granted in favor of Louisiana Power & Light Company. Burse v. Boh Brothers Construction Company, 349 So.2d 438 (La.App. 4 Cir. 1977), writ denied, 351 So.2d 172 (La.1977); Pullig v. Shreveport Packing Company, Inc. of Kansas, 342 So.2d 1217 (La.App. 2 Cir. 1977).

Appellant objects for the first time on appeal that the affidavit of Mr. McLen-don was not based on personal knowledge of the affiant. The record does not disclose that the plaintiff moved to strike or otherwise objected to the affidavit. The inadequacy of an affidavit is a formal defect which is deemed waived if not timely objected to in the court below. Barnes v. Sun Oil Company, 362 So.2d 761 (La.1978). Thus, we conclude that it was proper for the trial court to consider the affidavit of Mr. McLendon in ruling on the motion for summary judgment.

Appellant contends on appeal that even if the defendant was the statutory employer of Klohn, Louisiana Power & Light Company did not show that it was free from “intentionally” injuring the plaintiff. LSA-R.S. 23:1032.

The second paragraph of LSA-R.S. 23:1032 provides:

“Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.”

This court, in Guidry v. Aetna Casualty and Surety Company, 359 So.2d 637, 638 (La.App. 1 Cir. 1978), writ denied, 362 So.2d 578 (La.1978), has interpreted the above provision, as follows:

“To constitute the requisite intent to result in civil liability, the defendant must have entertained a desire to bring about the result which followed and he should have believed that the result was substantially certain to follow.”

The allegations of the plaintiff’s petition for damages against the defendant do not state the requisite intent by the defendant to cause injury to the plaintiff. The petition alleges various failures on the part of the defendant to meet its duty to the plaintiff to provide a safe place to work, and failure to warn the plaintiff of hidden dangers on the premises. From the undisputed way in which the accident happened, there is no plausible arrangement of the facts that would suggest that the harm in the case at bar resulted from an intentional act within the meaning of the statute. Guidry v. Aetna, Casualty and Surety Company, supra; Johnson v. Narcisse, 373 So.2d 207 (La.App. 4 Cir. 1979). We do not believe that Bazley v. Tortorich, 380 So.2d 727 (La. App. 4 Cir. 1980), cited by appellant, is a correct interpretation of the statute, LSA-R.S. 23:1061, and we do not choose to follow it.

For the reasons assigned, the judgment of the lower court is affirmed. Plaintiff-Appellant is to bear the cost of this appeal.

AFFIRMED.


text:
    Roy P. DOMANGUE, Jr. v. David M. HENRY et al.
    No. 13831.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    Rehearing Denied Feb. 11, 1981.

      Gordon Hamner, Houma, counsel for plaintiff and appellee.
    Lynn Lightfoot, Houma, for defendant and appellee, David M. Henry.
    Harry T. Widmann, New Orleans, counsel for defendant and appellant, American Fidelity Fire Ins. Co.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

This case arises from an automobile accident which occurred on January 30,1977, in the Parish of Terrebonne, Louisiana, when the plaintiff, Roy P. Domangue, Jr., who was proceeding in a northerly direction on Louisiana Highway 659 in his Dodge Van vehicle, was run into by a Mercury automobile driven by David M. Henry, who ran the stop sign controlling the intersection of Louisiana Highway 659 and Louisiana Highway 660.

Domangue brought suit for damages against Henry and his insurer, American Fidelity Fire Insurance Company. In this original action, the plaintiff obtained judgment for $30,234.40, together with interest and costs. The liability of American Fidelity, the defendant driver’s insurer, was limited to $10,000.00, its policy limits.

By way of third party demand, Henry sought to recover from American Fidelity the amount of the judgment rendered in excess of the policy limits and the attorney’s fees incurred because Henry was required to hire an attorney to defend him against a judgment in excess of the said policy limits.

The trial court found that Henry reported the accident shortly after its occurrence, yet he was not contacted by the insurer at any time, even during the investigation of Domangue’s claim. The insurer never informed Henry of any compromise negotiations or offers. The facts indicate that Henry was under the impression that the claim had been settled; therefore, he took no action himself; if he had known that the insurer was unable to settle the claim, he would have offered the sums necessary to settle. That opportunity was not presented to Henry, and the first notice he had that Domangue’s claim was not settled was when he was served with the suit papers. As a result of the filing of the suit, it became necessary for Henry to employ his own counsel to represent him and this counsel did represent him throughout all of the proceedings. The insurer never advised Henry that it would provide a defense on his behalf.

The record further reveals that Do-mangue negotiated settlement with Henry’s insurer over a period of some six to eight months. In these negotiations a figure of $5,000.00 for bodily injury was at least tentatively agreed upon, together with about $3,400.00 for repairs to Domangue’s vehicle and about $600.00 for depreciation, loss of use and inconvenience. Subsequently, the insurer withdrew the $600 offer and substituted an offer of $75.00 for these particular items of the claim, and made an offer of $100.00 for the deductible. On September 8,1977, Domangue wrote American Fidelity advising the insurer that settlement must be made as previously agreed. The insurer responded on September 16, 1977, without actually addressing the question of property damage. Then, Domangue returned the $75.00 draft to American Fidelity and filed suit on October 10, 1977.

Based upon these facts, the trial court rendered judgment in favor of Henry against his insurer, American Fidelity Insurance Company, in the amount of $35,-324.40; said amount representing an excess judgment of $23,435.85 and confirming the balance of policy limits available of $6,798.55, and an award of $5,000.00 attorney’s fees, with interest and costs. The insurer has appealed. We affirm.

In Roberie v. Southern Farm Bureau Casualty Insurance Company, 250 La. 105, 194 So.2d 713, 716 (1967), the court found that the insurer was in bad faith in not fully informing its insured of compromise negotiations and offers, and held the insurer liable for the judgment in excess of the policy limits. In so holding, the court remarked:

“We agree with the Court of Appeal that there was no bad faith on the part of the Insurance Company in not compromising the claims filed against it in the Pitre case. It acted within the terms of its insurance contract in proceeding to trial, and, under the facts supra, its actions could not be considered arbitrary, i. e., it preferred litigation to compromise. However, the insured, Roberie, was kept in the dark; he was never apprised of the offers of compromise nor warned of his potential liability; he was ignored. He needed information and advice on the point of his potential liability, which he was not given by his representative, his insurer. A conflict of interest arose between the insurer and the insured. The insurer failed to discharge its duty towards its insured, thereby precluding any decisive action on his part. We find that the actions of Southern Farm Bureau Casualty Insurance Company towards Ro-berie were more than negligent; they were in bad faith and in utter disregard of Roberie’s natural desire to protect himself from financial loss.”

Louisiana jurisprudence establishes that a duty is placed upon the insurer to consider the interest of the insured as paramount when an offer to settle is made. The insurer has a duty to act in good faith and to deal fairly when handling and settling claims in order to protect the insured from exposure to excess liability. See Holtzclaw v. Falco, Inc., 355 So.2d 1279 (La.1978); Moskau v. Insurance Company of North America, 366 So.2d 1004 (La.App. 1 Cir. 1978); Comment, Duty of Insurer to Settle, 30 La.L.Rev. 622 (1970).

The court in Cousins v. State Farm Mutual Automobile Insurance Co., 294 So.2d 272, 275 (La.App. 1 Cir. 1974), writ refused, 296 So.2d 837 (La.1974), considered the following factors in determining whether the insurer acted in good faith when refusing to settle:

“(1) The probability of the insured’s liability; (2) the adequacy of the insurer’s investigation of the claim; (3) the extent of damages recoverable in excess of policy coverage; (4) rejection of offers in settlement after trial; (5) the extent of the insured’s exposure as compared to that of the insurer, and (6) the nondisclosure of relevant factors by the insured or insurer.”

It is clear from the facts of the instant case that the insurer did not act in good faith in refusing to settle with Domangue. The accident was obviously Henry’s fault. Although settlement negotiations were about $600.00 apart, American Fidelity made no effort to inform its insured of any negotiations or settlement offers.

Younger v. Lumbermens Mutual Casualty Company, 174 So.2d 672, 675 (La.App. 3 Cir. 1965), writ refused, 247 La. 1086, 176 So.2d 145 (1965), defined the obligation of the insurer toward the insured and, quoting with approval from a treatise, stated:

“ ‘The question is always: “Did the insurer exercise that degree of skill, judgment, and consideration for the welfare of the insured which it, as a skilled professional defender of lawsuits having sole charge of the investigation, settlement, and trial of the suit may have been expected to utilize? ” ’ ”

The facts in the instant case reflect that the insurer did not; its conduct can only be described as in bad faith because it falls so far short of the duty of good faith which it owed to Henry. We hold that the insurer’s actions were in bad faith where it ignored its insured and never apprised him of the settlement negotiations or compromise offers and never warned him of his potential liability. See Roberie v. Southern Farm Bureau Casualty Insurance Company, supra. This complete failure on the part of the insurer to keep him informed, coupled with the great preponderance of evidence of Henry’s fault as causing the accident and the severe injuries sustained by Domangue, convinces us that the insurer did not deal fairly with its insured and was in bad faith. Therefore, the trial judge’s award to the insured, reimbursing him for the excess judgment, must be affirmed.

In considering the question of attorney’s fees, the trial court observed:

“When American Fidelity Fire Insurance Company failed to settle within policy limits after having been given ample opportunity, David Henry had no other alternative but to engage the services of an attorney to represent his now serious financial interest and probable excess liability. It is recognized that attorney(s) representing David Henry had to appear for two different trials. It is further recognized that trial preparations, research, interviews, and depositions all take considerable time and effort. Pretrial memorandums, pre-trial and post-trial briefs are time consuming. Appearance at the summary proceedings filed in both the principal and third party demands are [time consuming].”

The trial judge also recognized that the attorneys had already represented Henry over a period of two years and that there was a definite prospect of an appeal. Taking into consideration all of the factors involved, the trial court awarded the sum of $5,000.00 as attorney’s fees. The record supports that award.

If the allegations of the petition are sufficient to impose a duty upon the insurer to defend the insured, and the insurer fails or refuses to do so, then its refusal to provide that defense renders it liable for the expenses which the insured is compelled to incur in defending the action, including reasonable attorney’s fees. Moskau v. Insurance Company of North America, supra; Clemmons v. Zurich General Accident and Liability Insurance Company, 230 So.2d 887 (La.App. 1 Cir. 1969). An insurer is bound to a competent defense of its insured, and it is liable to the insured for any damages sustained as a result of a breach of that obligation. Cousins v. State Farm Mutual Automobile Insurance Co., supra; Younger v. Lumbermens Mutual Casualty Company, supra.

Moreover, where the insurer has been guilty of bad faith toward its insured, which bad faith culminates in an excess judgment being rendered against the insured, and where the insured has had to employ an attorney to protect his interests and to oppose the bad faith conduct of the insurer, an award of attorney’s fees is proper. See Reichert v. Continental Insurance Company, 290 So.2d 730 (La.App. 1 Cir. 1974), writ denied, 294 So.2d 545 (La.1974).

For the foregoing reasons, the judgment appealed is affirmed at appellant’s costs.

AFFIRMED.


text:
    STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT v. Aldrich A. DAVIS et ux.
    No. 13844.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    Rehearing Denied Feb. 11, 1981.

      Robert L. Oliver, Richard N. Burtt, Johnie E. Branch, Jr., Assts. to Gen. Counsel, Dept, of Transp. & Development, Baton Rouge, counsel for plaintiff-appellant, State of Louisiana, Dept, of Transp. & Dev.
    Vanue B. LaCour, Baton Rouge, counsel for defendants-appellees, Aldrich A. Davis and Ionia W. Davis.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

This is an expropriation suit by the State of Louisiana, through the Department of Transportation and Development, in connection with the construction of the Scot-landville Interstate By-Pass Highway, I-110, referred to as State Project No. 450-33-79, in East Baton Rouge Parish, Louisiana. The Department obtained an order under the “quick-taking” statute, LSA-R.S. 48:441 et seq., for the expropriation of a tract of land owned by Aldrich A. Davis and Ionia W. Davis, made defendants herein, which tract is a rectangular-shaped parcel of land containing approximately 1.80 acres, of which 1.43 acres is being expropriated. No improvements are involved. The Department deposited the sum of $14,377.00 as its estimate of just compensation for the value of the land taken. The defendants withdrew the deposited sum, and asked for $33,014.00 as the value of the land, plus $9,953.00 as severance damages.

In answer to the expropriation proceeding, the defendants placed at issue the value of the property taken and severance damages allegedly due to them.

The trial court found that the date of the taking was March 6, 1969, and the area of property taken to be 62,508.6 square feet, or 1.43 acres, leaving a remainder of 17,859.6 square feet, or 0.410 acres. The property is described as Lot 69, North Baton Rouge Subdivision, fronting 159.4 feet on the south side of Central Road, an asphalt-covered concrete roadway with curbs and gutters. After the completion of the project, the remainder will have access to a paved service road. The trial court also found that $0.50 per square foot would be just compensation, based primarily on the appraisals of the defendants’ appraisers, and held that the defendants were entitled to the sum of $31,254.30, less the amount previously deposited, $14,377.00, or the additional sum of $16,877.30. The court denied severance damages, but awarded attorney’s fees in the amount of $4,500.00.

In appealing from the judgment, the Department complains of the trial court’s fixing of the value of the property taken in the following respects: (1) assessing the depression and restriction in the development of the area due to a runway extension at the local airport; (2) finding the property taken not subject to development; (3) accepting the landowners’ appraisers in preference to the Department’s appraisers; (4) failing to consider certain comparable sales offered by the Department; (5) and fixing of the amount of just compensation due the defendants at more than $0.23 per square foot.

All of the assignments of error by the Department relate to the fixing of the value of the subject property.

The defendants’ appraisers, Kermit Wayne Williams and John LeJeune, were in agreement in considering that the highest and best use of the subject property was multi-family residential, which could be accommodated within the existing zoning regulations. The property was zoned A-3.1, a multi-residential zoning permitting up to four-family usage. LeJeune testified it was feasible for this property to be developed as a four-plex complex which would contain six four-plexes and one duplex, or a total of 26 rental units. W. A. Gordon appraised for the Department and was of the opinion that the property’s highest and best use was for residential purposes. We find, as did the trial court, that its highest and best use was multi-family residential.

It is well settled that potential use of expropriated property may be deemed its highest and best use for purposes of evaluation, where there is reasonable expectation that property may be so used, developed or employed in the reasonably foreseeable future. Where potential use is reasonably prospective, or reasonably certain to the extent that such use is removed from the realm of guesswork, speculation and conjecture, such potential use may be considered the highest and best use for fixing value in an expropriation. See State, Department of Highways v. St. Tammany Homestead Ass’n., 304 So.2d 765 (La.App. 1 Cir. 1974), writ refused, 307 So.2d 373 (La.1975). We thus find that the Department’s argument that the evidence does not support a reasonable expectation for multi-family residential use is unfounded. The expert testimony shows that under its present zoning the property could be used for multi-family residential purposes; or, if necessary, rezoning could be effected without undue problems in the reasonably foreseeable future.

In Recreation and Park Commission for Parish of East Baton Rouge v. Drago, 247 So.2d 908 (La.App. 1 Cir. 1971), writ refused, 259 La. 749, 252 So.2d 452 (1971), the property was zoned A-2 (single family units only) and capable of being used as A-4 (multi-family dwellings). The court ruled that under the facts and circumstances the highest and best use was for multi-family dwellings, such use was not remote, speculative or conjectural, but rather could be accomplished within the reasonably foreseeable future. The court relied upon the cases which held that in order to ascribe a certain purpose as constituting the highest and best use to which property being expropriated may be put, it must be shown that this potential use is reasonably prospective and removed from the realm of guesswork, speculation and conjecture. See e. g., State, Department of Highways v. Brooks, 152 So.2d 637 (La.App. 2 Cir. 1963), writ refused, 244 La. 663, 153 So.2d 880 (1963).

There is a substantial difference in the opinions of the landowners’ appraisers and the opinion of the Department’s appraiser as to the value of the property taken, although all appraisers used the market data approach to fix the value of the property. Mr. Williams, using five comparable sales from November, 1968, to May, 1977, arrived at an estimate of $0.45 per square foot, or a total of $28,145.00.

He described his appraisal of the subject property, as follows:

“Q. Can you describe where the property is located?
A. Yes, sir. The property is better located on these maps than I could describe it, but it is in the North Baton Rouge area behind the Scotland School and across from the Community Center. It is on Central Avenue. It is zoned A-3, which is suitable for four-plexes or duplexes or single family under this zoning. I think the distinct possibility is there that it could be zoned to a higher use. It is very well suited and could be used under its present zoning. At the time of this expropriation, probably some of the more favorable money on the market was for a four-plex system. I think this property was very well suited for that designation as of March of this year. However, my research indicated that the entire area has been subject to a, for loss of a better word, blight in that the development of the property has been restricted since 1969. This area was at one time restricted, because of its development, due to the impending construction of an east-west runway at the airport. Therefore, no building permits were permitted in there. Subsequent to this, the state announced its plans to build the highway, which is the subject of this expropriation, and further zoning changes were restricted by the City-Parish due to this. Therefore, property values have not increased as they might have had this property not been subject to this influx. In inspecting the property, I assumed the highest and best use for this property was for apartments, either four-plexes or larger units which could have been developed had the property been rezoned. I inspected several comparable sales and compared them to the subject property and concluded that the subject was worth forty-five cents per square foot. That is at 62,544 square foot taken for $28,145.00. The sales that I examined date back to 1968. This is the beginning of what I call the blighted influence on the property which is very much like an inverse condemnation, that is, the property owners couldn’t use the property to its highest and best use due to these influences which were restricting its development. The first sale I examined is the Tri-State Developers to the Chapel Corporation in Square 29 in University Place. This square of property was subsequently developed into approximately seventy units, if I am not mistaken. The property sold for seventy thousand dollars for 48.6 cents per square foot. The second sale I utilized was on November 15,1968, also from Tri-State Developers to the Heritage Corporation. This was 144,000 square feet in Square 51, University Place. It also sold for seventy thousand at 48.6 cents a square foot. In [On] June 11, 1971, Mr. Verdie F. Blake sold to Frank Leonard, Lots 17 through 24, Square 54, University Place for $14,400.00, which is 57 cents per square foot. The fourth sale I utilized is some quarter of a mile north of this subject property. It was Eugene Rogillio to the Housing Authority of East Baton Rouge Parish. This sale was consumated in 1976 for a 5.15 acre tract and indicates $1.25 per square foot. The sale was $265,412.00. Upon seeing this sale, I went into a very deep investigation into the property and discussed it with the Housing Authority people, namely Mr. Diamond. Mr. Diamond told me this was an arm’s length transaction, that they purchased the property from Mr. Rogillio and built the buildings themselves. Also included in this sale was some plans with an allowance of approximately 25 cents a square foot was made indicating a dollar a square foot for this property. The property does front on the highway, but they cannot build any closer than they have built already because of restrictions by the Housing Authority on noise pollution in proximity to the highway. The fifth sale that I examined was from Ms. Mildred Higgins to Edison Leo Paul. This sale was in 1977 of Lots 22 and 23, Square 8, Scotland Heights, for fifteen thousand dollars or $1.90 a square foot. Of the sales I have cited here, four of the five sales all developed into apartment houses. After considering them, considering their influences, I felt the subject property should have a fair market value of up to forty-five cents a square foot, sir.
Q. Do you have any impression with reference to the surrounding community insofar as those factors would have any impact on the property, any influence to the value?
A. Do you have reference, sir, to the impact—
Q. Given the location of the property in reference to the community.
A. Yes, sir, I think it would be an excellent location for multi-housing as evidenced by the fact the Housing Authority is very near here. It is near the Community Center and has it straight across the street. Also there is a school very near. There is transportation. Utilities are available to the property. It is an excellent property for development.
Q. I show you what I have marked as P-1 for identification at this time and ask you if that is the report you prepared in reference to this appraisal?
Yes, sir, this is the report dated May 4, 1979. It is signed by me and has the sales I used, the value conclusions and my signature.
Are there any photographs of the property in there?
Yes, sir, I do.
Q. Can you tell us — did you personally take those pictures or what?
a. Yes, sir, I did.
q Do you know approximately when you took those pictures?
Either in early May or right at that time.
Q-And you indicated by the pictures the direction which you were viewing?
A. Yes, sir, there are street scenes as well as a picture of the Community Center across the street and, of course, the subject property.
Q. And is there—
A. The subject property, as shown here, is clear, very little trees, ready for development. The community center is right across the street which I think would compliment the property in that they have social functions there and several community institutions.
Q. Did you give any attention — Do you know if this is a whole taking or a partial taking that you examined for?
A. This is a partial taking. There is a remainder on the rear of the property, but the maps that I have examined which you supplied, sir, would indicate that they are going to re-route Central Road and the remainder will have frontage on that road and did not feel there were any damages that would accrue. In fact, the project — if the project is constructed as shown on these maps, sir.
Q. What does the map show?
A. In my examination of the map, it shows — I am looking at Sheet 39. It shows that Jones Street will be connected to a service road which will parallel the interstate and connect back into Central Road. This property will enjoy 143.6 feet of uninterrupted, unrestricted access to either Central Road or Jones Street. I don’t know if that has been concluded. It will be one continuous street which will extend from the highway back to Rosen-wald. I did not think there were any damages [severance].
Q. Are you saying the improvement created by that proposed plan, if it is carried out, would sufficiently enhance or add to or provide benefit to the property to offset any possible damage, equal or exceed any loss in value?
A. I think that is well stated, yes, sir. If there are any damages, I think they are offset by the original frontage that will be provided and the just compensation would be value at forty-five cents a foot for the part taken.”

Mr. LeJeune, a real estate broker in Baton Rouge, Louisiana, also testified on behalf of the landowner. Using a total of 12 sales, he placed primary emphasis upon three sales and estimated the fair market value at $0.65 per square foot, or a total of $40,654.00. W. A. Gordon, the Department’s appraiser, reached the conclusion that the subject property had a value of $0.23 per square foot based on three compa-rables.

Both Williams and LeJeune testified that there were actually few comparables near the subject property; they attributed the lack of activity to the fact that it was common knowledge that the proposed route of I — 110 was to be in the immediate vicinity, which made it difficult to develop property in the area. The subject property was also in the proposed east-west runway corridor addition to Ryan Airport, which additionally helped restrict development in the area. In considering the experts’ testimony, the trial judge commented that he felt “this area was depressed after it became common knowledge that the interstate would be built in the immediate vicinity.”

The Department contends that the trial court committed manifest error in reaching its conclusion concerning the valuation of the subject property, complaining that the comparables used by the landowners’ appraisers were not as acceptable as those used by the Department’s appraiser. We find that Williams and LeJeune fully explained the comparables they used, and the factors they took into consideration in making their adjustments in arriving at their valuations. We thus consider the Department’s contention without merit.

The trial judge agreed primarily with the defendants’ appraisers, but made the adjustment he considered proper. We are of the opinion that this adjustment is sound in reasoning and properly reflects the just compensation to which the defendants are entitled. In the trial on an expropriation case, much discretion is vested in the trier of fact in determining the weight to be given to the testimony of each of the expert witnesses. Vested with this discretion, the trial judge is not bound to wholly accept or reject the testimony of any one expert; he may base his conclusions on the collective testimony of any number of experts, as he sees fit. Furthermore, the trier of fact has the right to take factual determinations as to which of the factors relied upon by the witnesses relevantly influenced the market value. City of Baton Rouge v. Allied Chemical Corporation, 308 So.2d 295 (La.App. 1 Cir. 1975); State, Department of Highways v. Salassi, 244 So.2d 871 (La.App. 1 Cir. 1971).

The more reliable and approved method for determining the fair market value of property taken is to consider comparable sales, adjusting them to compensate for their relative good and bad features with regard to the property expropriated. See State, Department of Highways v. Romano, 343 So.2d 222 (La.App. 1 Cir. 1977); State, Department of Highways v. Kornman, 336 So.2d 220 (La.App. 1 Cir. 1976).

We have thoroughly studied the appraisals and testimony of each appraiser, and conclude, as did the trial court, that the landowners’ appraisers’ reports and testimony are more convincing than the Department’s as to the value of the property taken.

We believe that the trial court’s determination is supported by the evidence and that there has been no abuse of discretion. See State, Department of Highways v. Browning, 315 So.2d 784 (La.App. 1 Cir. 1975).

We affirm, at Appellant’s cost.

AFFIRMED.

      . The defendants are erroneously referred to as Ardrich A. Davis and Sonia W. Davis in the petition.


author: CHIASSON, Judge.

text:
    Theresa T. STEWART v. HOSPITALS AFFILIATES INTERNATIONAL, INC. OF BATON ROUGE, d/b/a Doctors Memorial Hospital.
    No. 13796.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    Rehearing Denied Feb. 11, 1981.

      Jack N. Rogers, Baton Rouge, counsel for plaintiff-appellee, Theresa T. Stewart.
    Richard S. Vale, Metairie, counsel for defendant-appellant, Hospital Affiliates Intern., Inc. of Baton Rouge, d/b/a Doctors Memorial Hospital.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

The defendant-appellant, Hospital Affiliates International, Inc. of Baton Rouge (Doctors Hospital), appeals the decision of the trial court awarding to plaintiff-appel-lee, Theresa T. Stewart, workmen’s compensation benefits. In doing so, the trial court overruled the exception of prescription filed by the appellant and found the plaintiff to be totally and permanently disabled.

Mrs. Stewart was working as a nurse’s aid at Doctors Hospital in December of 1975 when she sustained an injury to her back while attempting to assist a patient. Mrs. Stewart complained of back pains and reported the incident to her superior but did not fill out an incident report.

Continuing to work at Doctors Hospital, plaintiff consulted Dr. T. L. James about consistent back pains. Dr. James, after unsuccessful treatment, referred the plaintiff in February of 1976 to Dr. James Poche, a neurosurgeon in Baton Rouge.

Plaintiff continued to work for the defendant until February 16, 1976, which was the last day of actual work. Dr. Poche had a myelogram performed on February 19, 1976, which revealed a herniated disc at the L — 4 and L-5 interspace. He operated on her the next day and removed a portion of the L — 4 disc. Plaintiff’s recovery was uneventful until May of that year.

In May of 1976, plaintiff was involved in a car accident which did not have any effect on her back. Again, in August of 1976, plaintiff had a second automobile accident which again did not have any effect on her back.

Plaintiff continued to complain of back problems to Dr. Poche who performed a second myelogram in August of 1976. This second myelogram showed little irregularities around the area of her surgery but, in essence, was a normal study. On September 24,1976, Dr. Poche addressed a letter to Doctors Hospital informing them that the plaintiff could go back to work but had to avoid any heavy lifting.

Plaintiff did not return to work after this letter informing the hospital of plaintiff’s ability to return. In January of 1977, Mrs. Stewart slipped and fell in the bathtub aggravating her condition. The result was another myelogram performed in March of 1977, and subsequent surgery in May of 1977 at the L-3 and L-4 levels. This latter incident rendered the plaintiff totally and permanently disabled.

Mrs. Stewart filed suit on June 2, 1977, seeking to be declared totally and permanently disabled and entitled to workmen’s compensation benefits as provided for by law in addition to all medical expenses. Defendant excepted to the petition stating that the petition on its face revealed that the action had prescribed and answered the petition with a general denial.

The trial court found that defendant’s plea of prescription was not well founded since the defendant had written a letter to Mrs. Stewart on March 30, 1976, informing her that plaintiff’s job would still be open for a period of three months. The court computed that this three month period expired on June 30,1976, thus terminating her employment with Doctors Hospital and beginning the running of prescription.

The trial court found that the suit filed on June 2, 1977 was within one year of the date of termination of employment and within two years of the date of the accident. In addition, the trial court found Mrs. Stewart to be totally and permanently disabled due to the aggravation of her work related injury by the fall in the bathtub. It is on these two points that the defendant has appealed.

The applicable provision of the workmen’s compensation statute for prescriptive periods is La.R.S. 23:1209, which provides:

“In case of personal injury (including death resulting therefrom) all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter or unless within one year after the accident proceedings have been begun as provided in Parts III and IV of this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of partial disability this limitation shall not take effect until three years from the time of making the last payment. Also, where the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until the expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.”

From a reading of this section, two time frames for prescription are applicable. The first is a one year period beginning from the date of the accident. The second is a one year period from the time the injury develops. The latter is the period that concerns us in this matter. Also inapplicable is the provision that the prescriptive period is one year from the last payment of benefits since none were ever paid in this case.

The date of filing suit is not within the one year period following either the accident, which allegedly occurred in December of 1975, nor the day of plaintiff’s last day at work, which allegedly is February 16, 1976. Since these facts appear from the face of the petition, it is incumbent upon the plaintiff to come forward to prove an interruption of the year period. Heymann v. Dixie Leasing Corporation, 250 So.2d 118 (La.App. 4th Cir. 1971); Black v. Ethyl Corporation, 236 So.2d 607 (La.App. 1st Cir. 1970).

Mrs. Stewart argues that prescription under La.R.S. 23:1209 is based upon the jurisprudential principle of “discontinuance of employment,” in a “development of the injury” case. The case of Mottet v. Libbey-Owens-Ford Glass Co., 220 La. 653, 57 So.2d 218 (1952) was the first decision to express this theory. Therein the Supreme Court stated:

“From the very wording of this amendment, an employee who receives an injury flowing from an accident that later develops into disability is excepted from the general rule and his right of action is not perempted until one year after the injury has developed. In this case the injury did not develop into total disability until March 11, 1947, at which time the plaintiff could no longer pursue his trade as a glass cutter...”

The March 11, 1947 date represented the last day that Mr. Mottet had worked.

The courts have continued the jurisprudential rule that a disabling injury develops when “disability to perform work becomes manifest either to the injured employee or his employer.” Wallace v. Remington Rand, Inc., 229 La. 651, 86 So.2d 522 (1956). See Russell v. Employers Mutual Liability Ins. Co. of Wis., 246 La. 1012, 169 So.2d 82 (1964); Harris v. Seaboard Fire & Marine Ins. Company, 337 So.2d 262 (La.App. 2nd Cir. 1976) and cases therein cited; and Strange v. Commercial Ins. Co. of Newark, 346 So.2d 752 (La.App. 1st Cir. 1977). Malone and Johnson, Louisiana Workmen’s Compensation, 13 La.Civ.L. Treatise, Section 384, pgs. 241-263 (2d Ed. 1980).

One distinguishing factor in all these cases is that the claimant returned or tried to return to work and then left because of the inability to perform. The day they left was considered the day the injury developed so that the date of disability and the date of discontinuance of employment was one and the same. In our case, Mrs. Stewart never did return to work.

Plaintiff’s last day of work was on February 16, 1976, while she was terminated as an employee of Doctors Hospital sometime in June, 1976. Plaintiff’s disability occurred at a different time. Her initial injury occurred in December of 1975 and her initial disability occurred on February 19 or 20, 1976, the date of the myelogram and surgery. The total and permanent disability did not result until January of 1977, when she fell and slipped in the bathtub.

For the fall in the bathtub to be compen-sable, there must be a showing that the injury complained of on that day was causally connected to the work related injury of December, 1975. In this case, plaintiff had complained of back pains and pains in her left leg following the injury and after the operation in February of 1976. In describing the fall in the bathtub she stated that her leg gave out like it had been doing.

An injury which is work related that is aggravated by an off the work accident is compensable only if there is a causal relation between the off the job accident and the work related injury. Bolden v. Georgia Cas. & Sur. Co., 363 So.2d 419 (La.1978) and Carter v. Rockwood Ins. Co., 341 So.2d 595 (La.App. 2nd Cir. 1977). We find there is sufficient evidence of record to substantiate the causal connection. We have our doubts about the trial court’s action in addressing interrogatories to one of the doctors after the case was taken under advisement, but need not consider this argument because the answers do not conflict with or detract from our holding herein.

Since the total and permanent disability did not occur until January, 1977, filing of suit on June 2, 1977 was timely. The filing of suit was within one year of the date of the disability as well as within the two year peremptive period provided by La.R.S. 23:1209. Defendant’s plea of prescription was properly overruled.

The next contention is that the trial court erred in finding the plaintiff totally and permanently disabled. There is sufficient evidence in the record, especially that of Dr. Poche, to find that Mrs. Stewart could not engage in any gainful occupation for wages. Plaintiff might only have been totally and temporarily disabled until September of 1976, but the fall in the bathtub, which is causally connected to the work related injury as hereinbefore shown, aggravated the injury so as to render the plaintiff totally and permanently disabled thereafter. Such an aggravation is com-pensable. Carter, supra.

For these reasons, the judgment of the trial court is affirmed. Defendant is cast for all costs of these proceedings.

AFFIRMED.


text:
    Leo J. DUNDY v. LOUISIANA STATE UNIVERSITY IN BATON ROUGE.
    No. 13830.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    Rehearing Denied Feb. 11, 1981.

      Robert C. Funderburk, Jr., Baton Rouge, for appellant.
    William A. Norfolk, Baton Rouge, for appellee.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

Leo J. Dundy, appellant, appeals the ruling of the State Civil Service Commission (Commission) affirming the termination of his employment as a Building Services Supervisor I with Louisiana State University (LSU).

Dundy had been suspended from duty and pay on June 5, 1979. After an investigation by LSU, appellant was notified that he was being terminated as of June 11, 1979. The following excerpt from his termination letter sets forth the basis of his termination, to wit:

“It has recently come to our attention that you are not handling your assigned duties in a responsible manner by permitting an employee for whom you are responsible, Anthony Hookfin, to leave his job for about three hours before the end of his shift and report to another job off the campus. According to the time card of this employee his card was being punched out at the end of his shift from his position with the department and he was being paid for a full eight (8) hours by the University. The dates involved are May 17, 18, 21, 22 and 23, 1979. George Sheppard, a supervisor under you, made a statement to us on May 25, 1979, that you told him not to worry about two employees, Anthony Hookfin, the employee involved, and Mary Belin who was working in the same location. You stated to this supervisor that those employees knew what they were doing and that he was not to check on them. George Sheppard checked on these employees only at the beginning of their shift and you were to check on them after that. These instructions by you to the supervisor made you directly responsible for the activities of Anthony Hookfin. Under the above circumstances, you must have known that Anthony Hookfin was leaving his job before the end of his shift and that someone was punching his time card out at the end of his shift.
‡ ‡ ‡ ‡ ‡ ‡
“On or about July 20, 21, and 22, 1978, you spent the entire shift driving employee Jerrie Ayio around in the University pickup truck. On or about July 21, 1978, you drove off campus to your home, taking Jerrie Ayio with you. The transportation used was a University pick-up truck and this was done during the scheduled working hours for you and Jerrie Ayio.
“On September 16, 1978, you were observed by James King punching out on the time card of Willie C. Smith who was known to be in Texas on that date.”

On July 9,1979, a timely appeal was filed by Dundy to the State Civil Service Commission, appealing the action taken by LSU. A hearing was held in which the action of LSU was found to be reasonable and the appeal was denied. The Commission made the following “Findings of Fact”:

“1. Anthony Hookfin, a former employee with the Custodial Department at L.S.U., under the supervision of appellant, held two jobs simultaneously, during conflicting hours, with the knowledge, consent, and assistance of appellant. Hookfin’s hours of employment with L.S.U. were from 11:00 p. m. until 7:00 a. m., while his hours of employment with the U.S. Post Office commenced at 4:00 a. m. From May 17, 1979 through May 24, 1979, during the days of work, Hook-fin was present at the U.S. Post Office during the hours of 4:00 a. m. through 7:00 a. m.; and during the same time period, his card at L.S.U. indicated that he was present on the job at L.S.U. until 7:00 a. m., at which time his card was ‘punched.’ Hookfin had made arrangements with appellant that enabled him to accomplish this. As a consequence, Hookfin was paid for a full shift at L.S.U. for the time he was working at the U.S. Post Office.
“2. On the first night of her employment with the Custodial Department, Jerrie Ayio, employed under the supervision of appellant, was taken by appellant to his home during working hours, in an L.S.U. truck. The purpose of the trip was personal.
“3. Although there is conflicting testimony as to whether a subordinate was in Texas during working hours and was ‘punched out’ by appellant, there is no doubt that appellant could and did permit an employee to absent himself from work, without suffering any diminution in pay or other penalty, since time cards were ‘punched out’ notwithstanding the absence of the employee.”

It is upon these findings of fact that the appellant appeals. Five of the six specifications of error assigned by the appellant involve rules of evidence with the remaining error centered on the actual fact finding of the Commission.

The appellate review of the Commission’s ruling is now on any question of law or fact. La.Const.1974 Art. 10 Sec. 12. Brown v. L. H. H. R. A., 346 So.2d 758 (La.App. 1st Cir. 1977). The scope of review is essentially the same as that provided for appeals from the decisions of the district courts. La.Const.1974 Art. 5 Sec. 10(B). Michel v. Dept. of Pub. Saf. Al. Bev. Con. Bd., 341 So.2d 1161 (La.App. 1st Cir. 1976), writ refused 343 So.2d 1078 (La.1977) Case 1. Brown, supra, page 762.

That scope of appellate review was established in the case of Canter v. Koehring Company, 283 So.2d 716 (La.1973) and explained in Arceneaux v. Domingue, 365 So.2d 1330 (La.1978) to be as follows:

“... Appellate review of facts is not completed by reading so much of the record as will reveal a reasonable factual basis for the finding in the trial court; there must be a further determination that the record establishes that the finding is not clearly wrong (manifestly erroneous).” Arceneaux, supra, page 1333.

Appellant contends the Commission erred in finding that he had assisted Anthony Hookfin in simultaneous employment during conflicting hours. We find a factual basis for the Commission’s ruling and the finding is not clearly wrong.

The remaining specifications of error involve the use of the rules of evidence in the Commission’s hearings. Strict compliance with the Rules of Evidence in administrative hearings is not mandatory. Michel, supra, page 1165. Messer v. Department of Cor., La. State Pen., 358 So.2d 975, 979, (La.App. 1st Cir. 1978). Nonetheless, the findings of the Commission must be based on competent evidence. Michel, supra; Messer, supra.

We find that there is competent evidence in the record to substantiate the factual findings of the Commission. Mr. Percy Hancock, a supervisor for eleven years at LSU, testified that he was present at the U.S. Post Office when Anthony Hookfin reported to work there while still supposedly working on the LSU Campus. Hancock confronted Hookfin with the situation. In addition, Hookfin testified that he was holding the two jobs simultaneously. Mr. George Sheppard, the immediate supervisor of Hookfin, testified that he was instructed by Mr. Dundy not to check on him, that Dundy would take care of him.

As to the second finding, both Ms. Ayio as well as Mr. Dundy himself stated that Mr. Dundy drove off campus with Ms. Ayio in the LSU pickup truck on the first night of her employment. The Commission concluded from the testimony that the trip was personal. The third finding by the Commission is substantiated by the eye witness testimony of James King who testified that he saw Mr. Dundy punch the time card of Willie Charles Smith.

Even though appellant has shown conflicting testimony as to each of these findings, it is not proper to substitute our judgment for the Commission's when there is a reasonable factual basis in the record supporting such a finding and the finding is not clearly wrong. As was stated in Martin v. Feiber, 357 So.2d 5 (La.App. 1st Cir. 1977), “(A)ppellate courts must accord great weight to the factual findings of the trier of fact. When testimony is in conflict, reasonable evaluations of credibility and reasonable inferences of fact drawn by the trier of fact should not be disturbed on appeal, .... ” The evaluations of credibility in this case are supported by reasonable evidence.

LSU has proven the allegations against the appellant by a preponderance of the evidence and thus was within its rights to terminate Leo J. Dundy for the causes hereinabove mentioned.

The ruling of the Commission in dismissing appellant’s appeal is affirmed at appellant’s costs.

AFFIRMED.


author: LEAR, Judge.

text:
    Roger D. FURR v. The MAYOR AND CITY COUNCIL OF BAKER.
    No. 13828.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    Rehearing Denied Feb. 11, 1981.
    Robert W. Stratton, Baker, for plaintiff-appellant, Roger D. Furr.
    William C. Bradley, Baker, for defendants-appellees, The Mayor and City Council of Baker.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

The issue in this case concerns whether or not the defendants-appellees abused their discretion in refusing a “commercial use” permit under the City of Baker, Louisiana, zoning ordinance.

Plaintiff sought to obtain a permit to operate a recording studio in a “P. Planned Commercial District” which permit was denied after a public hearing, although the Baker Planning and Zoning Commission had originally approved the permit.

Plaintiff contends that the denial was arbitrary and capricious and an abuse of the discretion and power of the city council as defined by Section 24-22 of the Code of the City of Baker.

In well-written reasons for judgment, affirming the action of the city council, the trial judge stated as follows:

“The court cannot agree with plaintiff’s position based on a reading of the entire section and the law relative to zoning matters. Section 24-22 begins by recognizing that there are many undeveloped tracts of land within existing residential areas in the P-Planned Commercial Zone. To facilitate the development of these areas, the section provides a procedure for application to the Baker Planning Commission, but final approval and issuance of the permit is reserved to the City Council. Paragraphs (3) and (7) are of particular interest:
“ ‘(3) Now, therefore, in order to encourage the most appropriate uses of land both commercially and residentially, conserve the value of residential buildings and neighborhoods, facilitate adequate transportation, lessen congestion in the public streets, contribute to safety from fire, provide adequate light and air, and promote the general welfare, convenience, comfort and public health, especially with reference to traffic congestion, the council reserves unto itself the right to review and approve any project proposed in a P Planned Commercial District.
“ ‘(7) If the planning commission has approved the proposed building and/or land use project, the city council may authorize issuance of a permit in accordance therewith. If the planning commission disapproves the application, it shall specify the basis of its disapproval. Under such circumstances, the city council shall, nonetheless have authority to review any proposal disapproved by the planning commission, and, taking into consideration the report of the planning commission, shall determine whether in its opinion, the proposed parking provisions, parking lot access and egress, provisions for loading and unloading passengers from automobiles and merchandise from delivery trucks, access and egress of delivery trucks, automobile and pedestrian circulation, and other design features of such proposal affecting traffic congestion will adversely affect the public health, safety, convenience, comfort and welfare, particularly in regard to traffic movement and congestion, both within the limits of the proposed project site and on the public streets and highways giving access to and egress from the proposed site.’
“It is evident from the above sections that the City Council is given final authority to issue or deny permits and is not bound by recommendations of the zoning commission. Since the ultimate authority has clearly been legislatively delegated to the City Council, any decisions made pursuant to that authority can only be overturned judicially if the court finds that the decision is illegal, arbitrary, or unreasonable. Cook v. Metropolitan Shreveport Board of Appeals, 339 So.2d 1225 (2d Cir. [La.App.] 1976). It should be noted that the actual procedure used here is close to rezoning and in the area of rezoning the law is similar. Rezoning is a legislative function and the courts do not get involved absent some abuse of discretion. Smith v. City of Alexandria, 300 So.2d 561 (3d Cir. [La.App.] 1974).
“The record does not reflect that the decision to deny the permit was arbitrary or an abuse of discretion. The record does indicate that after considering the welfare of the neighborhood involved, and the possibility of an increase in noise and congestion, the Council decided that the recording studio was inappropriate for this area. The authority given the Council by Sec. 24-22 of the Baker Code gives it this discretion.”

We agree. The judgment of the trial court is affirmed, appellant to pay all costs.

AFFIRMED.


text:
    Ernest C. GOFF v. Melba T. SARRADET et al.
    No. 13820.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    Rehearing Denied Feb. 11, 1981.

      Guy A. Módica, Guy A. Módica, Ltd., Baton Rouge, of counsel, for plaintiff-appellant.
    James F. Abadie, Roy, Kiesel, Patterson & Abadie, Baton Rouge, of counsel, for defendants-appellees.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

An accident occurred on June 6, 1978, near noon, at the intersection of Louisiana Highway 1 (LA-1) and Louisiana Highway 989-2 (LA-989-2) at Brusly, Louisiana. LA-1 is a four lane highway with two left turn lanes for northbound and southbound traffic. LA-989-2 is a two lane highway.

Immediately prior to the accident, plaintiff, Ernest C. Goff (Goff) was driving a pickup truck on LA-1 in a northerly direction and defendant, Melba T. Sarradet (Sarradet), was stopped on LA-989-2 near the intersection intending to proceed through the intersection in an easterly direction.

At some time prior to the collision between the vehicles being operated by plaintiff and defendant, a tractor-trailer truck had attempted a turn from LA-1 onto LA-989-2 and ended up partially in a ditch blocking a railroad track that parallels LA— 1. Goff had previously passed this intersection a little earlier and was aware of the problem created by the tractor-trailer. As Goff again approached the intersection at 35 to 45 miles per hour, he had a green light. The record also reveals that several vehicles were stopped in the left turn lane immediately to his left, partially blocking his view of the intersection. He also saw Officer Jarreau directing traffic as the officer had been doing when Goff passed earlier. At the same time Goff approached the intersection, Officer Jarreau motioned to the Sarradet vehicle to proceed through the red light in order to get a wrecker in position to move the tractor-trailer which had a train blocked. As the Sarradet vehicle moved through the red light, Mrs. Sarra-det’s view was blocked by the vehicles in the left turn lane. As she emerged into the northbound traffic lanes of LA-1, her vehicle was struck by the Goff pickup truck.

Plaintiff had originally filed suit against Officer Jarreau, the Town of Brusly and their insurers. That claim was settled prior to trial.

The trial court found that the sole and proximate cause of the accident was the breach of duty owed by Officer Jarreau to safely direct traffic under the circumstances, and gave judgment in favor of Mr. and Mrs. Sarradet and their insurer dismissing plaintiff’s claim. LSA-R.S. 32:56(A) and LSA-R.S. 32:231 impose a duty upon the operator of a motor vehicle to comply with any lawful order or directive of any police officer invested by law with the authority to direct, control or regulate traffic. This duty obtains, irrespective of the instructions or signals of a traffic control device. Marquis v. Hartford Accident & Indemnity Co., 40 So.2d 534, La.App. Orleans 1949.

In the case at bar, the record clearly supports the lower court’s findings that defendants were not at fault in the accident. The court in its written reasons for judgment found that the proximate cause of the accident was the negligence of the police officer in failing to secure all four lanes of LA-1 and in failing to be more specific about where and to what extent he wanted Mrs. Sarradet to proceed.

Significantly, the trial court further found that plaintiff was aware of the existing hazard, having passed the ditched vehicle an hour earlier while travelling southbound; that although plaintiff had indeed observed the officer, the ditched vehicle and the wrecker upon his return to the area, he failed, nevertheless, to slow his vehicle or to take precautions consistent with the hazards presented. The court cited Sutter v. Travelers Insurance Company, 167 So.2d 517, La.App. 4th Cir., 1964, as further legal support for its ruling. We are persuaded that the lower court is eminently correct, both in its findings of fact and conclusions of law. There is no manifest error.

For the foregoing reasons, the decision of the lower court is affirmed at appellant’s costs.

AFFIRMED.

      . A. No person shall fail or refuse to comply with any lawful order or direction of any police officer or weights and standards police officer invested by law with authority to direct, control, or regulate traffic.

      . A. The driver of any vehicle shall obey the instructions of any official traffic-control device applicable thereto placed in accordance with the provisions of this Chapter, unless otherwise directed by a traffic or police officer, subject to the exceptions granted the driver of an authorized emergency vehicle in this Chapter.


text:
    SOUTH CENTRAL BELL TELEPHONE COMPANY v. Joseph GERACE, Administrator of the Department of Employment Security et al.
    No. 13872.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    Rehearing Denied Feb. 11, 1981.
    George W. Byrne, Jr., New Orleans, E. B. Dittmer II, Talley, Anthony, Hughes & Knight, Bogalusa, for plaintiff South Central Bell Telephone Co.
    James A. McGraw, Baton Rouge, for defendant Joseph Gerace, Administrator of the Division of Employment Security, Dept, of Labor.
    Robert M. Loev, Giraud, Cusimono, Ver-derame & Loev, New Orleans, for defendant Dorothy Jefferson.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

Mrs. Dorothy Jefferson, claimant, was an employee of South Central Bell Telephone Company (employer) and on September 12, 1977, she applied for six months maternity leave to begin October 15, 1977. The leave was granted and thereafter she applied for unemployment benefits which were likewise granted. The case came before the Louisiana Board of Review for the Office of Employment Security upon an appeal by the claimant from a decision of the appeals referee reversing the administration agency’s ruling that claimant’s leaving of employment was with good cause connected with her employment.

After reviewing the evidence, the board reversed the appeals referee and ordered that the decision of the agency be reinstated. Plaintiff appealed to the district court asking for judicial review.

An additional hearing was necessary due to an accidental erasure of part of the record and after same was held by the appeals referee the court rendered judgment affirming the decision of the Board of Review. We agree.

The evidence shows that claimant was having problems with her pregnancy and was advised by her physician that she could perform light work, but should not drive the long distance (60 miles) to and from work. At the original hearing she submitted a statement to that effect signed by her doctor. Claimant’s supervisor testified that she could have been transferred to another office near her home, but this was not discussed. The witness further testified that claimant told her she wanted to take leave because her wages were being garnisheed. The Board of Review as well as the court was of the opinion that claimant’s disability resulted from health problems caused by travel to and from her job and was, therefore, work related.

The record does not disclose why plaintiff did not offer claimant a job near her home when notified of the application for unemployment benefits shortly after claimant took the leave of absence.

We find no error in the judgment of the trial court and, therefore, affirm said judgment, appellant to pay all costs.

AFFIRMED.


text:
    PIKE BURDEN PRINTING, INC., IN LIQUIDATION v. PIKE BURDEN, INC., et al.
    No. 14050.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    Donald S. Zuber and Rufus D. Hayes, Baton Rouge, for plaintiff-appellee Pike Burden Printing, Inc., in liquidation.

      Chester Hugh Boyd, Baton Rouge, for defendants-appellants, Eldren P. Nalley, William R. Bell and Pike Burden, Inc.
    James D. Caldwell, Baton Rouge, for third-party defendant-appellant Ransome and Associates, Inc.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

This is an appeal from adverse judgments rendered in favor of plaintiff-appellee, Pike Burden Printing, Inc., In Liquidation, and against Eldren P. Nalley and William R. Bell, defendants-appellants, and Ransome and Associates, Inc., third-party defendant-appellant.

By motion to dismiss, plaintiff-appellee challenges the right of defendants-appellants, Pike Burden, Inc., Eldren P. Nalley and William R. Bell to proceed by suspen-sive appeal, contending that the record reflects that defendants-appellants have failed to file the requisite bond. Finding merit in its motion, we dismiss the suspen-sive appeal, but maintain the devolutive appeal.

Judgment was signed by the lower court on June 25, 1980. On August 5, 1980, defendants-appellants obtained an order granting a suspensive appeal, provided legally acceptable security be furnished. No bond was ever filed by defendants-appellants. The third-party defendant-appellant, Ransome and Associates, Inc., obtained an order granting a suspensive appeal and timely filed a bond which stated in pertinent part:

“THEREFORE, the undersigned, who is domiciled in this parish, hereby finds (sic) himself as surety for Ransome and Associates, Inc. and in favor of H. M. Cannon, Clerk of Court for the Parish of East Baton Rouge, in the sum of $28,000.00 as security that Ransome and Associates, Inc. will prosecute its appeal, and satisfy from the proceeds of its property any judgment that may be rendered against it and should it fail to satisfy the judgment the undersigned, as surety, will be liable for the amount of the judgment.”

It is, therefore, unassailable that the only bond of record is solely in favor of Ransome and Associates, Inc., the third-party defendant-appellant. It is quite possible that the court could render judgment in its favor and adverse to either or all of the defendants-appellants. Defendants-appellants’ position is that the bond filed by Ransome and Associates makes it unnecessary to file an additional bond. In Borne v. Bourg, 327 So.2d 607 (La.App. 4th Cir., 1976), our brethren considered the same issue. The court said:

“We agree with that broad jurisprudential rule, but only when the required bond for suspensive appeal actually furnishes security for all appellants and, perhaps, when the required bond for devolu-tive appeal in fact affords security for all costs due by all appellants, i. e., when the appellee in either a suspensive or devolu-tive appeal is afforded the full required appeal security.
“[2] Here, the only security furnished is the bond filed by Schnell, Carbo and Rockwood Insurance. That bond binds its surety only for those three appellants; the bond does not mention Bourg. Thus, as to both the money judgment and costs, the appellee is without recourse against the surety insofar as Bourg is concerned. Under these circumstances, the rule relied on by Bourg has no application. Accordingly, we dismiss his appeal.”

This decision has been followed in Getchell v. Guarino, 343 So.2d 1109 (La.App. 4th Cir., 1977).

Accordingly, the motion to dismiss the suspensive appeal is granted.

SUSPENSIVE APPEAL DISMISSED:

DEVOLUTIVE APPEAL MAINTAINED.