author: GUIDRY, Judge.

text:
    Curtis BAILEY, Plaintiff-Appellee, v. MISSOURI PACIFIC RAILROAD CO., Defendant-Appellant.
    No. 7451.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 1980.
    Rehearing Denied May 5, 1980.
    Writ Refused June 13, 1980.

      Anderson, Leithead, Scott, Boudreau & Savoy, Everett R. Scott, Jr., Lake Charles, for defendant-appellant.
    Perrell Fuselier, Oakdale, for plaintiff-ap-pellee.
    Before CULPEPPER, GUIDRY and DOUCET, JJ.
   GUIDRY, Judge.

This is an action brought under the Federal Employers’ Liability Act, 45 U.S.C. Sec. 51 et seq., for injuries alleged to have been sustained by the plaintiff as a result of defendant’s negligence. Plaintiff-appellee, Curtis Bailey, alleges that defendant-appellant, Missouri Pacific Railroad Company, negligently required him to perform tasks normally assigned to more than one person under such conditions so as to causé him to suffer a heat stroke. Plaintiff further alleges that as a direct result of the heat stroke he subsequently suffered a myocardial infarction which left him permanently disabled. Defendant denied any negligence on its part and pled alternatively plaintiff’s independent negligence and contributory negligence in diminution of plaintiff’s claim for damages. The matter was tried without a jury. The trial judge in his written reasons concluded as follows:

“A. Defendant was negligent in requiring the plaintiff to perform a two man job alone considering his age and the weather conditions.
B. This negligence caused the plaintiff’s heart attack and resulting damages.
C. It was forseeable considering plaintiff’s age and weather conditions that he would suffer some sort'of collapse similar to that which he experienced as a result of this increased activity under the circumstances.
D. Plaintiff was not negligent in performing the task assigned to him which caused his collapse. He could hardly refuse to do the work he was instructed to do. The remaining crew members had other tasks to perform and could not help him. He could not procrastinate because trains periodically used that section of track. There was apparently no other way for plaintiff to perform the work assigned to him other than the way he did. It is therefore the opinion of the court the plaintiff is entitled (sic) damages against defendant undiminished by any negligence on the part of the plaintiff.

DAMAGES

1. Loss of Earnings to date of trial $ 35,565.54
2. Loss of Future Earnings (To age 65) 30,000.00
Total Special Damages 65,565.54
Pain, Suffering, and Emotional upset, past, present and future, and loss of enjoyment of life 50,000.00
Total damages $115,565.54"

Accordingly, judgment was granted in favor of plaintiff and against defendant; condemning defendant to pay to plaintiff damages in the amount of $115,565.54. Defendant appeals and asserts that the trial court’s findings are unsupported by the testimony and evidence adduced at trial and urges reversal of the lower court judgment. We disagree and affirm the trial court judgment for reasons which follow.

FACTS

The record shows that on the morning of June 30, 1975, plaintiff was employed by defendant as a Helper on a Bridge and Building Gang (B & B Gang). Plaintiff was 58 or 59 years old and had been working for defendant for over thirty years. The B & B Gang to which plaintiff was assigned consisted of five men: Ronnie La-tiolais, Foreman; Robert Duran, Assistant Foreman; Jack N. Fontenot and Ira E. Fuselier, Sr., Carpenters; and plaintiff, Helper. As helper, plaintiff assisted generally in the B & B Gang’s operations and in particular, was the “crab” operator. The “crab” is a small motorized crane mounted on a small non-motorized platform car. One of the functions of the crab is to move cross-ties from a storage area along the railroad tracks to the point where the ties are to be installed and when used thusly, is a two-man job: one to operate the crane; the other to secure the cables around the ties to be moved; and then both to assist in rotating the loaded crane’s boom and pushing the crab along the track. On June 30, 1975, plaintiff was required to operate the crab without a helper as the crew was shorthanded. Ira E. Fuselier, Sr., who normally assisted plaintiff in operating the crab, was on vacation.

The sequence of events on the Monday morning of June 30, 1975 are as follows: Plaintiff’s B & B Gang started work at 8:01 A.M. at the railroad’s Bridge No. 630.5, north of Oakdale, Louisiana. The weather was hot and humid. The crew had a stop order out and flags were set up on the track to inform trains of their presence. The crab was moved onto the tracks from a set-off and the gang began pulling spikes out of the railroad ties in the bridge that were to be replaced. The replacement ties had been stacked about 125 feet north of the bridge the week before in preparation for this work. Plaintiff’s work as crab operator after the first set of spikes were pulled consisted of pushing the crab along the track to the stack of ties; manually rotating the crane’s boom to a position over the ties; securing the winch cable around six cross-ties (each weighing 150 lbs.); manually rotating the boom back parallel to the tracks; pushing the loaded crab back to the bridge; and, finally, operating the boom to position the replacement ties for the other members of the gang to slide under the rails into position on the bridge. After making two such trips, plaintiff went back for his third load between 8:30 and 9:00 A.M. and was in the process of getting onto the crab to boom up the replacement ties when he collapsed. After a delay of approximately 30 minutes, plaintiff was taken by Robert Duran to the Mowad-Nesom Clinic in Oakdale. Plaintiff was examined and treated by Dr. George B. Mowad, who diagnosed plaintiff’s condition as a classical case of heat prostration. Plaintiff was hospitalized the same day at Oakdale General Hospital. Sometime during the night of July 1 and/or the morning of July 2, 1975, while still being treated for the effects of the heat stroke, plaintiff suffered a myocardial infarction. On July 4, 1975, plaintiff was transferred to the St. Francis Cabrini Hospital in Alexandria, Louisiana, where he remained under the care of Dr. M. L. God-ley, until he was discharged to return home on July 24, 1975. As a result of plaintiff’s heart attack, he is permanently disabled from performing his job with defendant and is, and will continue to be, highly restricted in his physical activities. Further, plaintiff will be required to take medication for the rest of his life to prevent heart failure.

MEDICAL EVIDENCE ON CAUSATION

The medical evidence presented at trial consisted of the depositions of the two physicians who treated plaintiff for his heat stroke and heart attack: Dr. George B. Mowad and Dr. M. L. Godley. In reference to the cause of heat strokes in general, Dr. Mowad explained as follows:

“. . . Anything that would cause an increase, cause an increased amount of activity, regardless of what it is, in the sun, that would cause an increased amount of oxygen requirement by the body could cause more of a strain, whether be it a stroke or whatever it is. There’s more likely — the more hotter you get, the more work you do in the heat, the more likely you are to have a heat stroke, be it this work or whatever work it is. (P- 5, page 15)
* * * * * *
. As a general rule, in the majority of the cases, you don’t see heat strokes unless there is some change in the normal work patterns of a person. Either it gets unusually hot, or unusually hot with humidity or there’s an increase in the work load. These are the things that usually create these stokes (sic). It’s unusual to see a person doing his usual job under the same — the average set of circumstances have a heat stroke.” (P-5, page 38)

Dr. Mowad also stated in his deposition that the stress on the heart is increased with the severity of the heat stroke. Dr. Mowad rated plaintiff’s heat stroke to have been moderate to severe.

Dr. Godley, a cardiologist and specialist of internal medicine, was plaintiff’s treating physician for his heart attack. When asked if he had formed an opinion as to whether the increased work load performed by plaintiff and the increased stress from the heat stroke contributed or precipitated plaintiff’s heart attack of July 2, 1975, Dr. Godley replied as follows:

“Well, I — ordinarily I feel fairly strongly that heart attacks come on when they’re going to come on and I’ve been very reluctant to assign a person’s job as a cause of his heart attack. However, in this man’s case I feel with reasonable certainty that it was an aggravating or precipitating factor because of the particular change in his work load that day. Ordinarily — and medical books will bear it out — heart attack is caused by the development over a period of many years of sufficient hardening of the arteries to finally result in decreased flow of blood as I defined for a certain area of the heart muscle and a heart attack will take place. Precipitating factors are known, such as tobacco and heat and cold and diabetes, high blood pressure, anger, fear, exertion and that sort of thing. Ordinarily if a man is engaged at his same occupation doing the same thing and on a particular day has a heart attack, well it’s a little difficult to say that job aggravated it or precipitated it. But if he’s suddenly called upon to do far more than his usual occupation and without any forewarning himself — I was unable to determine by questioning him later that he had had any symptoms of heart disease prior to this — I feel like that in this particular instance why his work load was a définite precipitating factor on top of his atherosclerosis (sic) that he unknowingly developed.” (P-3, pages 17, 18, 19).

STANDARD OF REVIEW

On appeal, defendant has placed the trial judge’s findings of negligence, causation and damages at issue. It is appropriate at this point to outline the standard by which we have reviewed the issues in this matter. The scope of review by state appellate courts in reviewing federal statutory actions, such as FELA cases tried in state courts, is the same scope of review as is applicable in the federal court system. Trahan v. Gulf Crews, Inc., 260 La. 29, 225 So.2d 63 (1971); Broussard v. Missouri Pac. R. Co., 376 So.2d 532 (La.App. 3rd Cir. 1979).

The applicable standard of federal appellate review is prescribed in Rule 52(a) of the Federal Rules of Civil Procedure and is set forth and discussed by Mr. Justice Reed in United States v. United States Gypsum Co., 333 U.S. 364, 394-395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948), as follows:

“That rule prescribes that findings of fact in actions tried without 'a jury ‘shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.’ . A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.”

The mandate of Rule 52(a) also applies to mixed questions of law and fact. Determinations of negligence and contributory negligence by the trial judge in a federal action, as in the instant suit, are tested under the “clearly erroneous” rule. McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20 (1954); Black v. Greyhound Corporation, 314 F.2d 485 (CA5th, 1963); Carrier v. United States, 369 F.2d 322 (CA5th, 1966) cert. denied, 386 U.S. 1027, 87 S.Ct. 1388, 18 L.Ed.2d 470; Bethlehem Steel Corp. v. Yates, 438 F.2d 798 (CA5th, 1971); Nelson v. Jacksonville Shipyards, Inc., 440 F.2d 668 (CA5th, 1971).

CONCLUSION

In the instant suit, we think the evidence, when considered most favorably to plaintiff-appellee and in view of our circumscribed standard of review, supports the trial judge’s finding of negligence chargeable to defendant for not providing a sufficient and safe work force for the performance of the work required when measured by standards of due care commensurate to the danger of injury by collapse or heat prostration in light of the work conditions encountered.

Defendant’s main argument against a finding of negligence, aside from the insufficiency of evidence, is that the occurrence of plaintiff’s heart attack was unforeseeable because of his unknown arterioscle-rotic condition; therefore, foreseeability being a necessary element of negligence, defendant was not negligent. We believe defendant misstates the issue. The foreseeable risk of harm created by defendant’s negligence was that plaintiff would suffer a collapse or heat stroke, which in fact did occur. In this regard the record supports the trial judge’s finding of causation, in that, according to the medical evidence, the heart attack was a consequence of the increased strain on the heart caused by the heat stroke in combination with plaintiff’s pre-existing condition of arteriosclerosis. Plaintiff’s heart attack and resulting injuries, while perhaps unforeseeable, were'consequential to the foreseeable harm suffered initially by defendant’s negligence, i. e., collapse or heat prostration; therefore, defendant is liable in damages. As stated by the U.S. Supreme Court in Gallick v. Baltimore and Ohio Railroad Company, 372 U.S. 108, 83 S.Ct. 659, at 667, 9 L.Ed.2d 618 (1963):

. . It is widely held that for a defendant to be liable for consequential damages he need not foresee the particular consequences of his negligent acts: assuming the existence of a threshold tort against the person, then whatever damages flow from it are recoverable. See, e. g., Boal v. Electric Battery Co., 98 F.2d 815, 819 (C.A. 3d Cir.); Koehler v. Waukesha Milk Co., 190 Wis. 52, 57-63, 208 N.W. 901, 903-905 (collecting authorities); Restatement, Torts, § 435; 2 Harper and James, Torts, 1139-1140; Prosser, Torts, 260 (2d ed.); Seavey, Mr. Justice Cordozo and the Law of Torts, 48 Yale L.J. 390, 402-403. And we have no doubt that under a statute where the tort-feasor is liable for death or injuries in producing which his ‘nearliarence played any part, even the slightest’ (Rogers v. Missouri Pac. R. Co., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493) such a tort-feasor must compensate his victim for even the improbable or unexpectedly severe consequences of his wronarful act. Cf. Kernan v. American Dredging Co., 355 U.S. 426, 78 S.Ct. 394, 2 L.Ed.2d 382; Coray v. Southern Pac. Co., 335 U.S. 520, 69 S.Ct. 275, 93 L.Ed. 208; Lillie v. Thompson, 332 U.S. 459, 68 S.Ct. 140, 92 L.Ed. 73 ..."

Finally, as to damages, the trial judge had the benefit of the testimony of two experts as to future loss of wages, as well as other evidence of past loss of wages and general damages. Our review of the record reveals no abuse of discretion in the award of damages; nor can we say that the trial court was clearly erroneous in finding plaintiff free of contributory negligence and denying any diminution of damages. We conclude that the trial judge’s findings are supported by the evidence in the record and the case’s disposition, when viewed totally, does not require a reversal as being clearly erroneous.

Accordingly, for the above and foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed against defendant-appellant.

AFFIRMED.

      . Federal Employers’ Liability Act, 45 U.S.C. Sec. 51 reads as follows:
      “Liability of common carriers by railroad, in interstate or foreign commerce, for injuries to employees from negligence; definition of employees
      Every common carrier by railroad while engaging in commerce between any of the several States or Territories, or between any of the States or Territories, or between the District of Columbia and any of the States or Territories, or between the District of Columbia or any of the States or Territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee’s parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of. any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, truck, roadbed, works, boats, wharves, or other equipment.

        Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce as above set forth shall, for the purposes of this chapter, be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this chapter.”

      . 45 U.S.C. Sec. 53 reads as follows:
      “Contributory negligence; diminution of damages. In all actions [hereafter] brought against any such common carrier by railroad under or by virtue of any of the provisions of this [act (§§ 51-60 of this title)] to recover damages for personal injuries to an employee, or where such injuries have resulted in his death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee: Provided, That no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee . . . .”

      . F.R.Civ.P. Rule 52(a) provides:
      “(a) Effect. In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered pursuant to Rule 58; and in granting or refusing interlocutory injunctions the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action. Requests for findings are not necessary for purposes of review. Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. The findings of a master, to the extent that the court adopts them, shall be considered as the findings of the court. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein. Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 41(b).”


source: Caselaw Access Project

author: GARRISON, Judge. GULOTTA, Judge, SCHOTT, Judge,

license: Public Domain

text:
    Clifford F. FAVROT, Jr. v. Katherine Boulet BARNES
    No. 10829.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 11, 1980.
    Rehearing Denied May 22, 1980.
    Writ Refused July 7, 1980.
    Sessions, Fishman, Rosenson, Snellings & Boisfontaine, Michael R. Allweiss, New Orleans, for plaintiff-appellant.
    D. Douglas Howard, Jr., New Orleans, for defendant-appellee.
    Before GULOTTA, SCHOTT and GARRISON, JJ.
   GARRISON, Judge.

This appeal is part of the voluminous litigation between Clifford F. Favrot, Jr. and Katherine Boulet Barnes, parties to the landmark decision of Favrot v. Barnes, 339 So.2d 843 (1976) in which our Supreme Court held that the earning capacity of an unemployed divorced wife does not bar her from alimony .under Article 160.

In that case, the Louisiana Supreme Court upheld the findings of the trial judge that Mr. Favrot was at fault and that the former Mrs. Favrot was in necessitous circumstances, by reinstating an alimony award of $800.00 per month in favor of Katherine Boulet.

Since that time, Mr. Favrot has continued unsuccessful litigation on the alimony issue through the Federal system, until his writ of certiorari was denied by the United States Supreme Court, after the case had been informally briefed to that Court, as per the Court’s- request.

The instant appeal arises from a motion to terminate or reduce alimony filed by Mr. Favrot in response to Katherine Boulet’s motion to increase alimony. Both parties stipulated that any alteration of the alimony granted would be retroactive to February 16, 1977.

After hearing, the trial court rendered judgment increasing alimony by $250.00 per month, retroactively as stipulated, and taxing all costs to Mr. Favrot.

In the course of the litigation, plaintiff propounded the following interrogatory to Katherine Boulet:

“No. 1. Do you own a parcel of immovable property described as follows:
“A certain tract of land, situated, lying and being in the Parish of Lafourche, State of Louisiana, on the right bank of Bayou Lafourche, at a distance of about thirty-two (32) miles below the town of Thibodaux measuring one hundred, twenty (120) feet, more or less, front of Bayou Lafourche, by forty (40) arpents in depth; bounded above by lands of Erwin J. Boul-et, Jr., and below by lands of Robert M. Boulet.”

The land in question is a tract which was formerly part of a rural plantation. The property description used by Mr. Favrot was the same description used not only in the succession proceedings by which Katherine Boulet obtained an interest in the property, but also in prior acquisitions.

Mr. Favrot filed two motions to compel Katherine Boulet to provide a “better” legal description of the property. In response, thereto, defendant filed a motion for a protective order alleging that Mr. Favrot was harassing his ex-wife with unnecessary depositions and interrogatories.

The trial judge granted Mr. Favrot’s motion to compel with the condition that Mr. Favrot bear the burdensome costs of discovery; the court dismissed the protective order.

On appeal, Mr. Favrot contends that the trial court erred in failing to terminate or reduce alimony, in granting an increase in alimony and in taxing costs against him. We disagree and affirm the judgment of the trial court.

C.C. Art. 160 provides that alimony “shall not exceed one-third of (the ex-spouse’s) income.” The evidence indicates that Mr. Favrot has an ordinary income of $150,-000.00 per year, so that an award of $50,-000.00 per year or $4,166.00 per month would not be excessive under - our Code. Katherine Boulet asked for an increase from $800.00 monthly to $2,316.00 monthly. Instead, she received an increase of $250.00 per month. The trial court’s award of $1,050.00 per month is approximately one-twelfth of Mr. Favrot’s admitted income per year.

In order for the moving party to reduce or terminate alimony, it is not necessary that he show that the recipient is in necessitous circumstances. Necessitous circumstances is an element proven by the recipient at the time that the alimony is initially set. It is a prior determination by the trial court.

In order for the moving party to reduce or terminate alimony, he must show a change in the circumstances of either party. The trial court must determine that a change has occurred before it can re-open the prior determination of necessitous circumstances. In the instant appeal, Mr. Favrot has failed to convince this court that a change has in fact occurred. Katherine Boul.et’s percentage of naked ownership was acquired some thirteen years prior to the judgment of divorce. Her financial condition was considered by the trial court at the time of the initial award of alimony.

Mr. Favrot’s appeal comes perilously close to a harassing and frivolous action, inasmuch as clearly no change for the better has occurred in Katherine Boulet’s financial condition. Rather, the evidence indicates that her financial condition has only worsened in the years since the divorce. Mrs. Boulet submitted to the trial court detailed, itemized lists of monthly and yearly expenses for each year of the period 1973 through 1979 inclusive. As the trial judge noted, she was examined for a considerable period of time: “You’ve had her on the stand for something like three hours with that list . ” This court concludes that more than sufficient evidence was presented justifying the increase of $250.00.

Mr. Favrot’s final specification of error is that’the trial judge erred in assessing against him the costs of obtaining a “better” legal description. We disagree. Mr. Favrot told the trial judge that he would pay the costs of discovery and the motion for a protective order alleging harassment was dismissed. As noted by counsel for appellee before this court on the day of oral argument, the instant appeal constitutes counsel’s thirty-first appearance before a tribunal on this matter. Our judicial system was not meant to be used as a manipulative device through which a party may force his ex-spouse onto the brink of financial ruin and emotional bankruptcy. We conclude that the trial judge was within his discretion in assessing costs against Mr. Favrot.

Accordingly, we affirm the judgment of the trial court, all costs of this appeal to be paid by the appellant, Clifford F. Favrot, Jr.

AFFIRMED.

GULOTTA, J., concurs in the result.

GULOTTA, Judge,

concurring.

I concur in the result.

SCHOTT, Judge,

assigning reasons for denying application for rehearing:

In his application for rehearing appellant has emphasized that appellee is not entitled to the alimony set by the trial court because she has real estate worth $50,000. Aside from the fact that this value is not clearly established, the argument is without merit in view of Loyacano v. Loyacano, 358 So.2d 304 (La.1978). There the Supreme Court reversed our decision (345 So.2d 365), and concluded that Mrs. Loyacano was entitled to alimony even though she had assets worth approximately $46,000 and even though some of these assets were easily susceptible of liquidation. The property owned by appellee in the instant case is not so easily susceptible to liquidation and even by appellant’s estimate is not worth substantially more than Mrs. Loyacano’s. In Loyacano the Supreme Court left the decision in large measure to the discretion of the trial judge as to whether the divorced wife’s assets were of sufficient worth to preclude her from alimony. Appellant has not demonstrated an abuse of that discretion in the instant case.

      . As noted by counsel on oral argument, descriptions of country property are often not as minutely precise as descriptions of urban lots. The instant interrogatory was not part of a case litigating a boundary dispute or other action directly involving the status of the immovable property so described. The interrogatory was merely seeking to confirm that Katherine Boulet still retained an interest in certain property. Mr. Favrot’s search of the property records in Lafourche Parish had already confirmed that Katherine Boulet had inherited an undivided interest and had provided the property description recited by Mr. Favrot in the interrogatory.

      . To provide a “better” legal description, defendant would be forced to hire surveyors as well as outside counsel and experts in the area of real estate.


author: SAMUEL, Judge.

text:
    Laurie BURKE, Derrick Morrison and Joel Aber v. James PARSONS, in his Capacity as Superintendent of the New Orleans Police Department.
    No. 10962.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 15, 1980.
    Writ Granted June 6, 1980.
    Mark A. Moreau and George Troxell, New Orleans, for plaintiffs-appellees.
    Delbert G. Talley, Deputy City Atty., and Salvador Anzelmo, Acting City Atty., New Orleans, for defendants-appellants.
    Before SAMUEL, SCHOTT and HOOD, JJ.

       Due to the death of Judge Hood prior to rendition, but after his concurrence therein, this opinion is rendered unanimously by Samuel and Schott, JJ.

   SAMUEL, Judge.

This is an action, under the Louisiana Public Records Act (R.S. 44:1 et seq.), seeking to force the Superintendent of the New Orleans Police Department to disclose certain public records which plaintiffs believe contain information about them. Plaintiffs later joined the City of New Orleans as a defendant.

The Superintendent of Police filed exceptions of no right or cause of action and lack of an indispensable party. The proceedings thereafter are somewhat confused, apparently because of the nature of the case. However, they need not be sifted out in this opinion.

On June 29, 1979 plaintiffs obtained a rule ordering the City of New Orleans and the Superintendent to show cause why they should not be ordered “to allow plaintiffs to inspect and copy any and all records, writings, accounts, letters, maps, drawings, memoranda, papers, cards, tapes, recordings and any other documentary materials and information, and any non-exempt portions thereof, in their custody and control, which relate in any manner or degree whatsoever to the plaintiffs, Laurie Burke, Joel Aber, their political activities and the Socialists Workers Party, pursuant to L.S.A.-R.S. 44:1 et seq.”

With consent of the parties, on July 2, 1979 the trial judge conducted an in camera inspection of the records in dispute, and on July 6, 1979 the trial of the plaintiffs’ motion was heard. At this trial no evidence was introduced and the case was submitted for adjudication by stipulation.

The trial court judgment decrees some of the disputed records were exempt from disclosure and some were not exempt. Defendants appeal from the judgment as to those records which were ruled non-exempt from disclosure. Plaintiffs filed an answer to the appeal in which they request all records reviewed by the trial judge be declared non-exempt from disclosure.

Defendants rely on the exemption from disclosure which the act grants to records of prosecutive, investigative, and law enforcement agencies. These exemptions are contained in R.S. 44:3 A(1), (2), and (3). They read as follows:

“A. Nothing in this Chapter shall be construed to require disclosures of records, or the information contained therein, held by the offices of' the attorney general, district attorneys, sheriffs, police departments, Department of Public Safety, marshals, investigators, correctional agencies, or intelligence agencies of the state, which records are:
(1) Records pertaining to pending criminal litigation or any criminal litigation which can be reasonably anticipated, until such litigation has been finally adjudicated or otherwise settled; or
(2) Records containing the identity of a confidential source of information or records which would tend to reveal the identity of a confidential source of information; or
(3) Records containing security procedures, investigative training information or aids, investigative techniques, investigative technical equipment or instructions on the use thereof, or internal security information;” LSA-R.S. 44:3 A(1), (2), and (3).

A detailed discussion of the records in this case would effectively frustrate the purpose of R.S. 44:3 A. It suffices to say that we have carefully reviewed those records and we find that all of them are exempt from disclosure by reason of the fact that all of them would tend to reveal the identify of a confidential source of information, or contain security procedures or investigative techniques.

For the reasons assigned, the judgment appealed from is affirmed in part and reversed in part and it is now ordered that the plaintiffs’ suit be dismissed at their costs in both courts.

AFFIRMED IN PART; REVERSED IN PART.


author: REDMANN, Judge.

text:
    Karrie HAMBLEN, wife of Norman J. Ockman, Jr. v. Norman J. OCKMAN, Jr.
    No. 10905.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 15, 1980.
    Arthur S. Mann, III, Tucker & Schone-kas, New Orleans, for plaintiff.

      William D. O’Regan, III, La Place, for defendant.
    Before ’ REDMANN, BOUTALL and CHEHARDY, JJ.
   REDMANN, Judge.

A separated wife complains that the trial judge awarded only $40 weekly support for her child not quite two years old at trial time, and that the judge did not decide her claim for pre-divorce alimony.

We conclude that the $40 amount is within the trial judge’s necessary discretion in his attempt to balance needs (typically increased substantially when spouses separate) and incomes. The husband earns $320 gross and $215 “take-home” pay, and the wife only $100 gross and $96 take-home pay weekly. The husband had at trial time fixed obligations of $600 monthly (including a $250 mortgage note payment on the community’s house, then up for sale), although, for example, $200 for an automobile note certainly could not diminish a father’s obligation to support his child. Nevertheless, under this family’s financial circumstances, $40 weekly ($173.33 monthly) is not beyond the trial court’s discretion as support for a normal two-year-old child.

Because the trial court judgment is expressly entitled “Judgment on Child Support,” and expresses the view that all other disputes were resolved, it seems probable that the trial judge overlooked the alimony claim (rather than rejected it by silence). (The husband’s trial-time argument that pre-divorce alimony denies equal protection of the law presumably did not affect the trial judge; it is in any case answered by Hingle v. Hingle, La.App. 4 Cir. 1979, 369 So.2d 271.) We therefore now decide the claim and award $25 weekly to the wife, effective immediately, as our best guess at a fair balance of the needs and limited incomes of the parties.

Considering the undisputed take-home pay figures (there is no explanation of why the husband’s $320 gross falls to $215 net), after deducting only $40 weekly for the child and $58 for the house note (ignoring other obligations), the husband’s available income would appear to be only $117 compared to the wife’s $96. Those figures would justify awarding the wife only $10.50 weekly. But the $215 net figure is too low for $320 gross unless some unusual deduction is being made; perhaps the credit union loan for the automobile is being paid by payroll deduction. Deducting $380 monthly or $88 weekly for fixed obligations (other than the car loan) in addition to the $40 weekly child support leaves the husband $192 weekly before taxes, compared to the wife’s $100. Although income tax withholding may be adjustable because of alimony deductibility, FICA tax is not. Moreover, income tax withholding is unaffected by the fixed obligations that are nondeductible. It is thus inaccurate to suppose that the $92 pre-tax differential could be divided equally between the spouses for pre-divorce alimony. We estimate, under all the circumstances, that $25 weekly is the most that can fairly be given to the wife until the house is sold. At that time the husband will have an additional $58 weekly and a judgment might now provide for an increase for the wife (as the wife’s counsel requests): but other circumstances may also have changed by now or by then.

Amended to award plaintiff $25 weekly alimony pendente lite, effective immediately-


text:
    Alvin J. DUVALLE, Jr. v. LAKE KENILWORTH, INC., et al.
    No. 11156.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 15, 1980.
    Rehearing Denied May 22, 1980.

      James S. Quinlivan, Jr., River Ridge, for plaintiff.
    Thomas E. Loehn, Montgomery, Barnett, Brown & Read, New Orleans, for defendants.
    Before REDMANN, LEMMON and SCHOTT, JJ.
   REDMANN, Judge.

A pest control company employee, injured while servicing an apartment complex, appeals from a summary judgment dismissing his tort suit against the owner of the apartment complex. The dismissal was based on the exclusivity of workmen’s compensation, La.R.S. 23:1032, and on defendant’s being plaintiff’s statutory employer, R.S. 23:1061.

We affirm. Plaintiff relies on Lushute v. Diesi, La.1978, 354 So.2d 179, a case that held that repair of restaurant air conditioning was not part of the business of operating a restaurant, because one may operate an unairconditioned restaurant. (We note also that a restaurant’s being airconditioned at one time does not constitute an enforceable implied contract with diners that it will continue to be airconditioned in the future.) Lushute is not in point here because the question is not whether an apartment complex can rent without providing pest control. Our facts are that defendant so conducted its apartment rental business that it impliedly contracted with its tenants to provide pest control. Thus the providing of pest control was “work . . . which [the principal] had contracted to perform . ,” R.S. 23:1061. The statutory language is disjunctive: “work, which is á part of his trade, business, or occupation or which he had contracted to perform . . .” Thus, assuming that an' apartment complex might do business without pest control and thus pest control would not be part of its “trade, business or occupation,” defendant is nevertheless liable in compensation and not in tort because it “had contracted to perform” pest control for its tenants.

Affirmed.

LEMMON, J., dissents.


author: GULOTTA, Judge.

text:
    Warren REDLER v. LOUISIANA POWER & LIGHT COMPANY, INC., and General Electric Co., Inc.
    No. 10269.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 15, 1980.
    Rehearing Denied May 22, 1980.

      Jesse S. Guillot, New Orleans, for plaintiff-appellant.
    Porteous, Toledano, Hainkel & Johnson, William A. Porteous, III, New Orleans, for defendants-appellees.
    Before GULOTTA, GARRISON and HOOD, JJ.

       Due to the death of Judge John T. Hood prior to rendition, but after his concurrence therein, this opinion is rendered unanimously by Gulot-ta and Garrison, JJ.

   GULOTTA, Judge.

Plaintiff, a Gulf Engineering Company employee, appeals from the dismissal of his damage suit against Louisiana Power and Light Company, Inc. and General Electric Company, Inc.

Issues raised by plaintiff in this appeal are (1) whether plaintiff’s remedy for injuries sustained is exclusively in workmen’s compensation (thereby exonerating the defendants, as statutory employers, from tort liability) ; and (2) alternatively, whether General Electric Company, Inc. is responsible to plaintiff for his job-related injuries sustained as a result of General Electric’s breach of its contract with Louisiana Power and Light to provide workmen on the job site with a safe place to work. Because we conclude the record clearly establishes that these defendants are statutory employers, we affirm the trial court’s judgment.

On May 26, 1974 plaintiff, a millwright foreman employed by Gulf Engineering Company, sustained an on-the-job injury while doing maintenance overhaul work on a Louisiana Power and Light turbine. The accident occurred at a Louisiana Power and Light electricity production plant in Ster-lington, Louisiana. L.P. & L. had contracted with General Electric Company to do preventive and corrective maintenance overhaul of the turbine, with some modifications being made. General Electric, in turn, had subcontracted with Gulf Engineering Company to make revisions on the outer shell of the turbine. Plaintiff’s ear injury was caused by a blast concussion from an explosion which occurred while he was drilling holes in the turbine. According to plaintiff, General Electric employees, engaging in “horseplay”, ignited an explosive device in the vicinity where plaintiff and another Gulf Engineering Company employee were working.

To determine the ultimate question whether the defendants in this case are statutory employers, it is necessary that we ascertain whether plaintiff, at the time of the injury, was engaged in the “trade, business or occupation” of these defendants. See Barnes v. Sun Oil Co., 362 So.2d 761 (La.1978). This determination depends upon the facts and circumstances of each case. Sisk v. Insurance Company of North America, 356 So.2d 1109 (La.App. 2nd Cir. 1978); Foster v. Western Electric Co., 258 So.2d 153 (La.App. 2nd Cir. 1972). Our courts also have recognized that maintenance and repair work comes within the scope of one’s trade, business or occupation. Barnes v. Sun Oil Co., supra; Gray v. Louisiana Power and Light Company, 247 So.2d 137 (La.App. 4th Cir. 1971), writ refused, 259 La. 59, 249 So.2d 202; Duplechin v. Pittsburg Plate Glass Company, 265 So.2d 787 (La.App. 3rd Cir. 1972); Sisk v. Insurance Company of North America, supra.

Karl C. P. Muller, L.P. & L.’s employee in charge of the power production department, testified L.P. & L. was in the business of the production of electricity, and that from time to time emergency repairs and maintenance work was required. Fred McBeth, also an employee of L.P. & L., stated that at the time of the injury a general overhaul and maintenance of the turbine was being carried out. Jim Crumb-ley, a field engineer for General Electric Company, who was working for G.E. in connection with the L.P. & L. contract at the Sterlington plant, stated that plaintiff was working on a maintenance job overhauling the turbine.

Warren Redler did not testify that the work in which he was engaged was maintenance work. However, he specifically mentioned that no one supervised his work; that he was in charge of the Gulf Engineering Company employees; that blueprints of the turbine were supplied by General Electric Company; that if he had any problems with the blueprints, he would seek help from his own employer rather than from General Electric or L.P. & L. employees; and that neither General Electric nor L.P. & L. people supervised or instructed the Gulf Engineering Company employees. The obvious purpose of this testimony was to support his contention that he was not subject to the control and supervision of either L.P. & L. or G.E.

On the other hand, Redler also testified that when he was injured he reported the injury to Jim Crumbley and was told by Crumbley to return to work. He stated that he tried but was unable to continue with his work. Plaintiff testified also he was referred by an L.P. & L. employee to a doctor in Monroe, Louisiana.

Crumbley testified further that he and an L.P. & L. representative checked periodically to see if the work was being done properly, and also periodically checked the timesh-eets of the Gulf Engineering Company employees.

Applying the well-established jurisprudence to the facts of our case, we conclude the maintenance overhauling of the L.P. & L. turbine, in which plaintiff was engaged at the time of the injury, was maintenance and repair work and, as such, was part of both L.P. & L.’s and G.E.’s trade, business or occupation. We reach this conclusion irrespective of Redler’s testimony that his day-to-day work was not subject to the control of L.P. & L. and G.E.

Having so concluded, we hold that Louisiana Power and Light and General Electric were statutory employers of Redler and as such exonerated from tort liability. Plaintiff’s remedy against these statutory employers is in workmen’s compensation.

Alternatively, however, plaintiff argues the contract between L.P. & L. and G.E. was a contract for the benefit of a third party because it contained provisions that G.E. shall remove from the work any “undesirable” persons, and that the “use of explosives in a manner which might disturb or endanger the stability, the safety or quality of the work will not be allowed.” Plaintiff claims G.E. breached this contract when its employees set off the explosive device. Accordingly, Redler contends, he is entitled as a third party beneficiary to recover damages for “default of contract.” We find no merit to this contention.

Because we have concluded that plaintiff’s remedy is exclusively in workmen’s compensation, it necessarily follows that neither L.P. & L. nor G.E. are responsible for damages for injuries received by a statutory employee, regardless whether the employee claims the injury resulted from a tort or a breach of contract. If we were to conclude otherwise, a plaintiff might assert a claim against any employer, statutory or otherwise (predicated oh the employer’s implied agreement to provide a safe place to work), and thereby claim recovery, based not upon tort but on breach of contract. This illogical result would in effect write out of our statutory law LSA-R.S. 23:1061 and 23:1032.

Accordingly, we hold plaintiff’s exclusive remedy for damages resulting from the accident is under the Workmen’s Compensation Act. The judgment is affirmed.

AFFIRMED.

      . R.S.23:1032 and R.S.23:1061 read as follows, in pertinent part:
      “§ 1032. Exclusiveness of rights and remedies; employer’s liability to prosecution under other laws.
      The rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said injury, or compensable sickness or disease. For purposes of this Section, the word ‘principal’ shall be defined as any person who undertakes to execute any work which is a part of his trade, business or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof.
      “§ 1061. Principal contractors; liability
      Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business, or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Chapter reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed. . . ”

      . Plaintiff gave the following description of his job:
      “A millwright foreman is the man who goes out on the job, takes the job over and directs the people under him, repairing or making revisions of machinery, or installation of machinery.”

      . LSA-C.C. Arts. 1889 and 1890 read as follows:
      “Art. 1889. No one can, by a contract in his own name, bind any one but himself or his representatives; but he may contract, in his own name, that another shall ratify or perform the stipulation which he makes,* and in this case he shall be liable in damages, if the contract be not ratified or performed by the person for whose act he stipulates.”
      * Note error in English translation of French text; “he makes” should be “is the object of the contract.”
      “Art. 1890. A person may also, in his own name, make some advantage for a third person the condition or consideration of a commutative contract, or onerous donation; and if such third person consents to avail himself of the advantage stipulated in his favor, the contract can not be revoked.”


text:
    MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED v. Donald E. THERIOT.
    No. 10915.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 15, 1980.
    Barham & Churchill, Earl S. Eichin, Jr., New Orleans, for plaintiff-appellee.
    Michael L. McAlpine, New Orleans, for defendant-appellant.
    Before GULOTTA, GARRISON and HOOD, JJ.

       Due to the death of Judge John T. Hood prior to rendition, but after his concurrence therein, this opinion is rendered unanimously by Gulot-ta and Garrison, JJ.

   GULOTTA, Judge.

In this stock transfer case, defendant Donald E. Theriot appeals from a judgment in favor of the plaintiff stockbroker, Merrill Lynch, Pierce, Fenner and Smith, Inc., in the sum of $8,046.69. This amount represents the purchase price of 300 shares of Chart House, Inc. stock Merrill Lynch erroneously credited to Theriot’s account in transferring the account to another broker, A. G. Edwards and Sons, Inc.

The thrust of defendant’s appeal is threefold: (1) That plaintiffs suit, filed on November 23, 1976, is based upon a tort claim for unlawful conversion which occurred on March 19, 1975, and which has prescribed since filed more than one year after the unlawful conversion; (2) that plaintiff has failed to establish by a preponderance of the evidence that Theriot’s account was credited with more stock than he actually delivered; and (3) that the trial judge erred •in basing the award on the price of 300 shares of stock Merrill Lynch acquired in June 1976 at a price well in excess of the value of the stock in March 1975, when it was credited to defendant’s account. Finding no merit to any of these contentions, we affirm.

In March 1975, Theriot sold 300 shares of Chart House, Inc. stock through Merrill Lynch, but he had none of this stock in his Merrill Lynch account. To cover the shortage, on March 19, 1975 he delivered to the plaintiff-broker two certificates of stock in Self-Service Restaurants, Inc. (the former name of Chart House, Inc.), each in the amount of 1Ó0 shares. Each Self-Service Restaurants certificate was the equivalent of an equal number of shares of Chart House, Inc. In addition, he delivered 300 shares (represented by 100-share certificates) of Chart House Enterprises stock. The value of one share of Chart House Enterprises stock was the equivalent of one-third share of Chart House, Inc. stock. Although 500 shares of stock were delivered to the plaintiff-broker, their equivalent in stock value amounted to 300 shares of Chart House, Inc. stock. The plaintiff-broker, however, erroneously credited to the client’s account 500 shares of Chart House, Inc. stock. Unknown to either plaintiff or defendant at this stage, Theriot’s account was overcredited with 200 shares of Chart House, Inc. stock.

Sometime thereafter, Theriot transferred his account to A. G. Edwards and Sons, Inc., another stock brokerage firm, and Merrill Lynch erroneously delivered 300 shares of Chart House, Inc. stock to Edwards on November 25, 1975. (Apparently an intervening August 1975 stock split increased the 200-share error to a 300-share error.) In April 1976 Merrill Lynch demanded defendant either return the 300 shares of Chart House, Inc. stock, or else pay it for the stock delivered. Defendant, however, denied he owed the stock to plaintiff. After reiteration of his denial, on June 16, 1976 plaintiff purchased 300 shares of Chart House, Inc. stock to cover the shortage remaining on its books. Of these 300 shares, 298 shares were bought at $26.75 per share, or a total of $7,807.60, including broker’s charges, and two additional shares were later purchased at a total price of $58.37, including broker’s charges. These amounts, plus $199.44 in dividends on the Chart House, Inc: stock transferred to Edwards, reduced by a credit of $18.72, comprise the total amount claimed. The trial judge awarded plaintiff its demand amounting to $8,046.69.

PRESCRIPTION

We reject defendant’s contention that a one-year prescriptive period applied to this transaction. Plaintiff’s claim is not based upon an unlawful conversion of stock by Theriot. It more properly comes within LSA-C.C. art. 2301 et seq.,. relating to “payment of a thing not due.”

Plaintiff’s suit is founded upon defendant’s failure to respond to the demand for the debit balance owing on his account. Thus, the underlying theory is either recovery of a balance owed on an account, providing a three-year prescriptive period (LSA-C.C. Art. 3538), or breach of contract, providing for a ten-year prescriptive period (LSA-C.C. Art. 3544.) In any event, it is not based upon a tortious unlawful conversion controlled by a one-year prescriptive period. Accordingly, we conclude the suit was timely filed.

In this connection, when Theriot opened his account with Merrill‘Lynch, he signed a written agreement with plaintiff. The document stated that, in consideration of plaintiff acting as a broker, defendant agreed, among other things, that he would “at all times be liable for the payment of any debit balance owing” in any of his accounts with plaintiff, upon demand. He also agreed to be liable “at all times” for any deficiency remaining in his account. The agreement further established that the securities held by the broker would be security for the payment of any liability owed to the broker in any of defendant’s accounts, and authorized the broker to buy any and all securities which might be short in those accounts.

However, defendant claims the contract was not in existence at the time his account was closed and transferred to Edwards. We reject this contention. The clear meaning of the contract is that the broker is entitled to recover any debit balance owing by the client whether or not the account remained active with the broker. To reach the result claimed by defendant would be to deny recovery to any broker where a mistake or error was made, and would defeat the broker’s right to obtain recovery as contemplated under LSA-C.C. Art. 2301 et seq.

BURDEN OF PROOF

Further, we find no merit to defendant’s claim that plaintiff failed to establish his account was overcredited. Theriot claims this partially because the receipt given him when he delivered the stock certificates states “500” shares of “Self-Service Restaurants, Inc., now Chart House Enterprises.” Obviously the cashier erred, since Self-Service Restaurants actually had become Chart House, Inc. Theriot contends the receipt is vague and either it could represent 500 shares of Self-Service Restaurants (worth an equal number of Chart House, Inc.), or it could represent 500 shares of Chart House Enterprises (worth only Vs as many Chart House, Inc.).

We reject this argument, because the receipt also listed the certificate numbers: LC 6160 & 61 X 100 ea, L5124, 25 & 26 X 100 ea.” Merrill Lynch submitted photocopies of stock certificates bearing these numbers — two 100-share certificates of Self-Service Restaurants and three 100-share certificates of Chart House Enterprises. This evidence supports plaintiff’s version of the transaction.

Further, the positive testimony of Vernon E. Alexander, the operations manager at Merrill Lynch, as well as the exhibits of defendant’s account statements support the transaction as claimed by plaintiff. It is clear the trial judge based his award on this evidence. Alexander’s chronology of the transactions, substantially set forth above, was virtually uncontroverted. Theriot had no independent recollection of the transaction, and stated he had no way of knowing, apart from the records, what occurred in March 1975 regarding the stock transfer. He stated further that, over a period of a year, he probably had 100 different transactions and could not remember any particular delivery of any set of certificates. He did testify, however, that when the account was closed he instructed the account executive at Merrill Lynch that all debts be paid and that all securities held by them be transferred to the new broker, Edwards. He further testified that the original demand from plaintiff was for an overpayment of 96 shares, later increased to 204 shares, and finally up to 297 shares.

Neil Howard, resident manager and vice president of A. G. Edwards and Sons, Inc., added little if anything to cast doubt upon the credibility and plausibility of Alexander’s version of the transaction, upon which the overcredit is claimed. Accordingly, we conclude, as did the trial judge, that plaintiff is entitled to reimbursement of the price for the purchase of 300 shares of Chart House, Inc. stock.

QUANTUM

The more troublesome aspect of this case is the amount of reimbursement to which plaintiff is entitled. The amount of plaintiff’s claim is based Upon a June 16, 1976 purchase of the stock after defendant reiterated his denial that he owed any amount to plaintiff. The question with which we are confronted is whether whether reimbursement for the amount plaintiff paid should be based upon the stock quotations on the date when Merrill Lynch purchased the stock; on the March 1975 date when Merrill Lynch made the overcredit; or on any subsequent determinative dates in between, either when the error was discovered in September 1975 or when the stock was delivered to Edwards in November 1975.

Because we have concluded that plaintiff’s claim is not one in unlawful conversion, we are persuaded that the amount of damages is not assessable on March 19, 1975, the date on which the error occurred. Furthermore, according to Alexander, the price per share on March 14, 1975 was $30.25, well in excess of the $25.75 and $26.75 per share values in June 1976. If we were to take the amount of the damages at the time of the alleged unlawful conversion, as claimed by defendant, this result would operate to Theriot’s detriment.

We see no basis to use the date of discovery of the error (i. e., September 1975) to determine the amount of damages to be assessed. Although plaintiff became aware of the error on that date, apparently defendant was not advised, in writing, of the discrepancy until much later, nor was demand made at that time for return of the 300 shares of stock or for reimbursement of its value. Similarly, we reject defendant’s contention that damages should be assessed at the August 1975 pre-stock split price of $15.00 per share, since the mistake had not yet been discovered nor demand for reimbursement made. Nor are we inclined to base an award on the value of the stock at the time the account was transferred to A. G. Edwards and Sons, Inc., (i. e., November 21,1975), for the same reasons we reject the September 1975 date. Furthermore, if we were to use the date of transferral, defendant would be prejudiced because he wpuld be responsible for an increased amount. The stock on that date was selling at $29.00 per share, while the value and purchase price in June 1976 varied from $25.75 to $26.75 per share.

Furthermore, the contract entered into between plaintiff and defendant provides specifically that the broker is entitled to buy any securities which may be short in the client’s account. Until such time as the client denied plaintiff’s entitlement either to return of the stock or to reimbursement of the stock purchase price, plaintiff was not authorized to purchase any security which may have been short in defendant’s account.

Accordingly, we find no error in the trial court’s assessment of damages based upon the date the replacement stock was purchased by plaintiff. Having so concluded, we affirm the judgment.

AFFIRMED.

      . LSA-C.C. Articles 2301, 2302, 2303 and 2304 read as follows:
      “Art. 2301. He who receives what is not due to him, whether he receives it through error or knowingly, obliges himself to restore it to him from whom he was unduly received it.”
      “Art. 2302. He who has paid through mistake, believing himself a debtor, may reclaim what he has paid.”
      “Art. 2303. To acquire this right, it is necessary that the thing paid be not due in any manner, either civilly or naturally. A natural obligation to pay will be sufficient to prevent the recovery.”
      “Art. 2304. A thing not due is that- which is paid on the supposition of an obligation which did not exist, or from which a person has been released.”


author: BOUTALL, Judge. REDMANN, Judge,

text:
    R. Dean CODDINGTON v. STEPHENS IMPORTS, INC.
    No 10898.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 15, 1980.

      Dart & Dart, Henry P. Dart, III, New Orleans, for R. Dean Coddington, plaintiff-appellee.
    Turner & Young, Emile L. Turner, Jr., New Orleans, for Stephens Imports, Inc., defendant-appellant.
    Before REDMANN, BOUTALL and CHEHARDY, JJ.
   BOUTALL, Judge.

R. Dean Coddington sued Stephens Imports, Inc. for damages allegedly resulting from defendant’s negligent breach of its duty to repair his vehicle and for violation of L.R.S. 51:1405, itemizing his damages as an amount for cost of repairs necessitated by reason of defendant’s inability to properly repair the automobile, transportation, delay and inconvenience, and anxiety and mental distress. The trial court found no violation of L.R.S. 51:1405, but apparently did find that the repairs were negligently made, and awarded plaintiff $500 in damages without itemization as to the basis of the award. The defendant appeals. We affirm.

Plaintiff had taken his 1970 Mercedes Benz automobile to Stephens, an authorized Mercedes Benz dealer, for repairs on several occasions, and the evidence preponderates that the repairs were improperly made and that plaintiff was given erroneous advice as to the condition and operation of his car. On the first such occasion, the plaintiff was advised that his vehicle was ready for operation, and when he arrived to pick it up, he discovered that it was improperly repaired, and after several attempts at immediate repair failed, was forced to leave the vehicle and return the following day to pick it up. The other occasions for seeking repairs resulted from faulty electrical and ignition system that caused plaintiff to return the vehicle to the shop four times over a period of 2 months, before repairs were finally made. The unfortunate part of these episodes is that, after each attempt at repairs, plaintiff’s car broke down on the road, leaving him stranded on one occasion on Down-man Road near the Lakefront Airport in New Orleans; once on Interstate 10 Highway in the swamp area past LaPlace and once on the Lake Pontchartrain Causeway. On each of these occasions, plaintiff and his companions had to arrange for an alternate method of returning home and plaintiff had to have the vehicle towed to Stephens’ for repairs. It is apparent from the record that plaintiff suffered damages payable under Louisiana Civil Code Article 1934 for the repairman’s breach of his duty of reasonable care, inspection and repair work when an automobile is brought to him for repairs. It is apparent that some portion of the repair bills would have been unnecessary had the repairs been properly made initially. Similarly, plaintiff had to pay wrecker service to have his vehicle towed to the shop and utilize other means of transportation, not only to return home from the places where he had broken down, but also to and from Stephens to pick up his vehicle after repairs.

Appellant refers us to the case of Meador v. Toyota of Jefferson, Inc., 332 So.2d 433 (La.1976), as authority for the principle that inconvenience resulting from tardy repairs is not recoverable as damages. We do not find that case to be controlling of the damages attributable to the defendant in this case. Although the trial judge mentioned in his reasons for judgment that he did not believe “that the inconvenience was as great as indicated in the pleadings”, it is obvious that the damages set here go far beyond simple inconvenience. A motorist who was stranded on the highways on three occasions, not to mention the additional time and effort spent in having the repairs' completed and obtaining delivery of the vehicle afterwards, can hardly be likened to the inconvenience an owner may suffer while his car sits in the repair shop unduly. The record adequately supports the trial judge’s conclusion that $500 is a sufficient sum to compensate plaintiff for the loss he has sustained, and we affirm the judgment appealed from.

AFFIRMED.

REDMANN, Judge,

dissenting in part.

Defendant apparently accepted responsibility at the time of the breakdown after the alternator regulator replacement, because defendant made no charge, not even for towing, on that occasion.

The second breakdown was caused by failure of the alternator itself. (The only cost attributable to the breakdown itself was $47,70 towing.) Defendant had told plaintiff that the glowing alternator indicator was due to a defective diode in the alternator which affected only the indicator light and not the alternator’s function of generating electricity. (On this possibility plaintiff’s expert agrees.) Defendant told plaintiff he therefore need not replace the alternator at that time. Plaintiff theorizes that this advice breached a duty to impress upon him that he should replace the alternator immediately because the always-lit indicator light could not inform him of any alternator trouble that developed from normal wear in the future. This theory would justify plaintiff’s recovery of $47.70 towing costs (but not the cost of the alternator).

The inference that defendant was responsible for the third breakdown (after replacement of the alternator itself) is permissible from the evidence. More likely than not, the replacement alternator was mismounted and the mismounting caused the alternator belt to fray and break: the charge sheet after this breakdown shows “R & R [remove and replace?] Alternator & Bracket & Replace Shims.” The wearing out and breaking of a belt would not of itself require that work. Thus the $113.10 charged by defendant on this occasion is recoverable, as is the $4.50 taxi fare and the $38 charge for towing (to a service station). Similarly recoverable is $10.92 paid two months later to clean and tighten loose connections on the alternator. These items are pecuniary damages from breach of the earlier contract to replace the alternator in a workmanlike fashion.

Non-pecuniary damages are not recoverable; Meador v. Toyota of Jefferson, Inc., La.1976, 332 So.2d 433.

The judgment should be reduced in principal to $171.22.


author: BOUTALL, Judge.

text:
    Maggie MARSHALL v. LANDMARK LAND COMPANY, INC., Sentry Insurance Company, Winn-Dixie Stores, Inc. and Riverlands Insurance Agency, Inc.
    No. 10982.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 15, 1980.

      Donald J. Bernard, Harris, Stampley, McKee, Bernard & Lombard, New Orleans, for Maggie Marshall, plaintiff-appellant.
    Joseph R. McMahon, Jr., Young, McMahon & Levert, New Orleans, for Landmark Land Co., Inc., and Sentry Ins. Co., defendants and third-party defendants.
    Robert E. Peyton, Christovich & Kearney, New Orleans, for Winn Dixie Louisiana, Inc., defendant and third party plaintiff; appellee-appellant.
    Before REDMANN, BOUTALL and CHEHARDY, JJ.
   BOUTALL, Judge.

This is a suit for damages which arose from a slip and fall of plaintiff, Maggie. Marshall, while approaching the entrance to a Winn-Dixie food store. She sued both Winn-Dixie Louisiana, Inc. and Landmark Land Company, Inc. owner of the shopping center and Winn-Dixie’s lessor. The trial court found that only plaintiff was negligent and dismissed her suit. She appeals. We affirm.

Plaintiff contends that she was walking from the parking lot to a Winn Dixie store accompanied by two female friends. As they approached the sidewalk in front of the store entrance they began to ascend a cart ramp. At this point plaintiff slipped and fell in a forward direction, caused by stepping upon a shallot. At issue are the duty of care owed plaintiff, the presence of the shallot and the negligence of plaintiff.

The duty of care owed by Winn-Dixie is well set out in the case of Bolin v. National Tea Company, 359 So.2d 690 (La.App. 1st Cir. 1978). In discussing the duty owed by the shopkeeper, the court stated at page 691:

“. . the storekeeper, although not the insurer of the safety of his patrons, is required to exercise reasonable care to keep the aisles in his store in a safe condition, and must make a reasonable effort to keep the floor free of objects or substances which might cause someone to slip and fall. Once a customer has shown that there was a foreign substance on the floor which caused him to slip and fall and that he was injured as a result, a presumption that the storekeeper was negligent arises. The storekeeper then has the burden of exculpating himself-from the presumption, which he can do by proving that he was reasonably prudent in his efforts to keep the floors in a reasonably safe condition and free from foreign objects and substances. Kavlich v. Kramer, 315 So.2d 282 (La.1975).
******
. .a storekeeper has the same duty to keep such areas in a reasonably safe condition, and he may not permit hazardous conditions of which he has actual or constructive notice, to exist. Miller v. Broadmoor Village, Inc., 321 So.2d 925 (La.App. 1st Cir. 1975); Lecompte v. State, Dept. of Pub. Saf., 343 So.2d 449 (La.App. 3rd Cir. 1977). On the other hand, the patron in such areas is charged with using reasonable care for his own safety, and must see and avoid obvious hazards. The patron in the display areas does not have this burden because his attention is attracted to the items displayed on the shelves of the store.”

The other defendant, Landmark Land Company, Inc. is the owner of the premises which Winn-Dixie leases, and is the owner- of the parking area and adjacent premises to Winn-Dixie. Pursuant to its lease with Winn-Dixie, it was to operate and maintain all the common areas of its tenants, including cleaning and sweeping. The jurisprudence has developed imposing a duty upon the landowner to the patrons to see that no hazard be permitted to exist on the premises which could reasonably be foreseen as dangerous to their safety. The landowner is required to exercise ordinary and reasonable care in the maintenance of the premises consistent with the purpose and use of the premises. However, landowners and storekeepers are not the insurers of the safety of their patrons. Meek v. Travelers Insurance Company, 188 So.2d 677 (La.App. 4th Cir. 1966); Locascio v. Lake Terrace Center, Inc., 293 So.2d 510 (La.App. 4th Cir. 1974); Martel v. Southern Farm Bureau Casualty Insurance Company, 368 So.2d 1192 (La.App. 3rd Cir. 1979).

Applying the facts to the law in this case, we note that as plaintiff and her friends were approaching the store they were laughing and talking together, and not paying any attention to where they were walking. Plaintiff did not see what caused her to slip, but after the fall it was noted that there was a- green shallot nearby and the presumption is that she slipped on that shallot. The slip was not reported at that time to the manager of Winn-Dixie, and it was not until some time later, after plaintiff had shopped that she reported the accident. Upon being shown the scene, the manager' testified that he saw no shallot in evidence. The trial judge resolved this issue by his finding that plaintiff did slip on a shallot that lay on the ramp, but that the shallot was green and fresh.

The defendants introduced evidence to show that they ' kept the sidewalks and ramps in a reasonably safe condition through adequate inspection and cleanup crews and the court found the following facts:

“Jacobs, the Winn-Dixie Store manager, testified that all employees were instructed to report and to clean up all spills; that each morning at 7:00 A.M., an employee washed and swept the sidewalk and ramps and continued to keep the store, sidewalks and ramps clean throughout the day. Additionally, he and the Assistant Store Manager inspected the store, sidewalks and ramps throughout the day.
“Bernard, the supervisor for the landlord testified that his crew cleaned the parking lot, sidewalks and ramps every morning at 6:00 A.M.; that the sidewalks and ramps were swept at 7:00 A.M.; that another crew reported at 4:00 P.M. every afternoon and continued the clean up of the sidewalks and ramps; that all reported spills were cleaned up immediately.”

The trial judge noted that the evidence satisfied him that both the store and the landlord maintained cleanup crews and cleaned and inspected with sufficient regularity to exculpate each from the presumption of negligence; that the shallot was green and fresh, the hour early, and the defendants had neither actual nor constructive notice of the shallot; that the shallot was upon an open unobstructed ramp in good light and view and plaintiff should have reasonably and prudently observed the shallot before stepping and slipping on it. The evidence amply supports these conclusions, and we agree with the findings of the trial judge. It is apparent from the testimony of plaintiff and her companions that they were engaged in conversation, laughing and joking and not paying attention to their path. The shallot did not represent a hidden danger, but could easily have been observed by a reasonably and ordinarily prudent person who was observing his course. See Coquiile v. Expressway Bowling, Inc., 183 So.2d 347 (La.App. 4th Cir. 1966); Boubede v. Casualty Reciprocal Exchange, 209 So.2d 82 (La.App. 4th Cir. 1968).

For the above reasons, the judgment of the trial court is affirmed.

AFFIRMED.


author: SCHOTT, Judge. PER CURIAM.

text:
    Wilmer Douglas ESKINE v. Beverly Louise Chatelain ESKINE, Divorced wife of Wilmer Douglas Eskine.
    No. 10882.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 15, 1980.
    Rehearing Denied May 22, 1980.
    Harry R. Cabral, Jr., Cabral, Daniel & Merlino, Metairie, for plaintiff-appellant.
    Jerome P. Halford, New Orleans, for defendant-appellee.
    Richard A. Dowling, New Orleans, for defendant-appellant Board of Trustees of the Police Pension Fund.

      Before SAMUEL, SCHOTT and HOOD, assigned, JJ.

       Due to the death of Judge Hood prior to rendition, but after his concurrence therein, this opinion is rendered unanimously by Samuel and Schott, JJ.

   SCHOTT, Judge.

Appellee, who is the divorced wife of Wilmer Douglas Eskine, brought a rule against him to show cause why he should not account to her for one-half of the police pension fund benefits he had received since the date on which they were divorced, and against the Board of Trustees of the New Orleans Pension Fund to show cause why it should not pay to her one-half of the pension due him in the future. The trial court declared Eskine’s interest in the pension fund to be community property so that one-half belonged to appellee and he ordered that the Board issue two checks each month, paying half to Eskine and half to appellee. Both Eskine and the Board have appealed. However, Eskine has now settled his case with appellee and dismissed his appeal, so that only the Board’s appeal remains for our consideration.

The parties were married in June, 1950, and continued thereafter to live in community until the judgment of divorce in January, 1977. Eskine became a member of the New Orleans Police Department in 1956 and retired on July 1, 1976, taking his pension.

Much of the argument in the trial court and in this court was devoted to the proper classification of Eskine’s pension rights as community versus his separate property. With the settlement of the suit between these parties this issue need not be decided. The only question remaining is whether the Board can be required to divide, in effect, Eskine’s pension between him and his divorced wife.

Appellee cites no authority for her position and we have discovered no case which has ordered a pension administrator to divide retirement benefits between the member and any third party. In the absence of such authority we are satisfied that such an order cannot be imposed on the Board.

The Board is a creature of the legislature and is charged with specific responsibilities under the provisions of LSA R.S. 33:2281 to 33:2305. §§ 2293.1, 2294 and 2294.1 provide for retirement benefits to be paid to the pensioner. Conversely, they contain no authority for the Board to pay anyone other than the pensioner the benefits which may be due under these sections. § 2298 provides that no benefits “shall ever be made from the fund for any reason whatsoever, except in strict conformity with the provisions and requirements of this Sub-part.” § 2302 provides that the fund is exempt from seizure by virtue of judicial process and shall not be subject to assignment, transfer or pledge. It concludes “The fund shall be sacredly held, kept, secured, and distributed for the purposes of granting the benefits and pensioning the persons named in this Sub-part and for no other purpose.” (Emphasis ours)

We have concluded that the legislature did not intend for the Board to be ordered to split checks between the pensioner and his divorced wife. The Board’s function is to manage the fund strictly in accordance with the law and it cannot be compelled to perform services outside of the requirements of the law.

Accordingly, the judgment appealed from is reversed and there is judgment in favor of The Board of Trustees of the Police Pension Fund and against plaintiff in rule, Beverly Louise Chatelain Eskine, dismissing her rule against the Board at her cost.

REVERSED AND RENDERED.

On Rehearing

PER CURIAM.

We have noted an error in our original opinion in our stating that Wilmer Douglas Eskine has settled his case with appellee. The record does not disclose a settlement but only that Eskine did dismiss his appeal so that he is no longer a party to these proceedings.

The application for rehearing is denied.


author: SCHOTT, Judge.

text:
    SUCCESSION of Hollis BREELAND.
    No. 10891.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 15, 1980.
    Rehearing Denied May 22, 1980.
    Joseph P. Anderson, Jr., Alford, Guillot & Anderson, Ltd., Slidell, for defendant-appellant Kathie Breeland Rickert.
    Theodore W. Nass, Powers & Nass, New Orleans, for plaintiff-appellee Darlene Breeland.
    Before SAMUEL, SCHOTT and HOOD (assigned) , JJ.

       Due to the death of Judge Hood prior to rendition, but after his concurrence therein, this opinion is rendered unanimously by Samuel and Schott, JJ.

   SCHOTT, Judge.

Kathie Breeland Rickert has appealed from a judgment recognizing her mother, Vera Chastant Breeland, as the sole heir of the latter’s husband, Hollis Breeland. The issues are whether an act of renunciation by appellant was valid and if so whether a purported revocation of her renunciation was effective so that appellant is entitled to be placed into possession of a portion of the succession.

Decedent, Hollis Breeland, was married only once and then to Mrs. Vera Chastant Breeland. Of the marriage only two children were born, Kathie Breeland Rickert, appellant herein, and Darlene Breeland. Hollis Breeland died on July 7, 1978, survived by his wife and two children. All of his property belonged to the community existing between himsélf and his surviving spouse, including property in St. Tammany Parish. On October 14, 1978, the two daughters executed an act of renunciation of the succession but on March % 1979, appellant executed an act in which she purported to revoke the renunciation in accordance with LSA C.C. Art. 1031, and to accept the succession of her father.

Therefore, Mrs. Vera Chastant Breeland filed a petition seeking to have herself placed into sole possession of the estate and was met with opposition by appellant. Appellant first attacked the validity of her renunciation itself, claiming that it was induced by fraudulent misrepresentations made by her mother which caused her to be misled as to the principal reason, motive and cause for making the renunciation. The alleged misrepresentations consisted of Mrs. Breeland’s assurance that in exchange for the renunciation by appellant she would convey to appellant title to the St. Tammany Parish property at the cost at which Mr. and Mrs. Breeland had originally purchased the property. Alternatively, appellant contends that she revoked her renunciation before Mrs. Breeland accepted the succession so that her revocation was effective under C.C. Art. 1031.

The trial consisted of the testimony of Mrs. Breeland, her two daughters, appellant’s husband and Mrs. Breeland’s brother. Appellant testified that the only reason she had renounced the succession was because her mother had promised to sell the St. Tammany Parish property to her at cost but in January, 1979, her mother offered to sell the property to her at a price far exceeding the cost. She testified that she would not have executed the renunciation except for these representations by her mother. Her testimony was to some extent corroborated by the testimony of her husband. On the other hand, Mrs. Breeland denied having made such an agreement and testified that the renunciation by appellant and her sister Darlene was made in compliance with an agreement that the children had made with both of their parents that upon the death of the first they would renounce so as to leave full control over everything with the survivor. This testimony was corroborated by Darlene Breeland’s testimony and, to some extent, by Mrs. Breeland’s brother’s. The trial court was apparently convinced by the testimony of Mrs. Breeland and her witnesses, and nothing in the record would support an opposite conclusion on our part. From our own review of the record we have no difficulty reaching the trial judge’s conclusion that the act of renunciation was valid.

C.C. Art. 1031 provides that an heir who has renounced may still accept a succession “if it has not been accepted by other heirs.” The evidence shows that Mrs. Breeland continued to manage the property and affairs of the community after her husband’s death, and her conduct was sufficient to constitute a tacit acceptance of the succession on her part. In determining whether a succession has been tacitly accepted, the intent of the person must be considered along with her actions. Barnsdall Oil Co. v. Applegate, 218 La. 572, 50 So.2d 197 (1950); Bradley v. Union Nat. Life Ins. Co., 359 So.2d 663 (La.App. 1st Cir. 1978). While these .cases stress that it is necessary to distinguish acts of ownership from those of mere administration or preservation in determining whether the acts of the heirs constituted a tacit acceptance, the record shows that Mrs. Breeland’s conduct went beyond mere preservation and administration. She and her daughter, Darlene, both testified that it was the intention of all four parties; that is, Mr. and Mrs. Bree-land and their two daughters, that upon the death of the first parent, the survivor would be left to enjoy what they had worked for without interference from the daughters. Mrs. Breeland accepted rent from appellant and her husband for the St. Tammany Parish property in January and February, 1979, and she also accepted the portion of the profits from a nursery which appellant and her husband were operating on the property just as though Mr. Breeland were still alive and getting the share of the profits for the community. Finally, we find it curious that appellant would now assert that her mother had not accepted the succession when her theory necessarily requires her mother’s acceptance in order for her mother to convey the property to her at the cost figure. If any credibility is attached to appellant’s version of the agreement it necessarily implies acceptance on Mrs. Bree-land’s part in order for the agreement to be carried out by Mrs. Breeland.

Finally, we note that Art. 1031’s provisions clearly apply to Mrs. Breeland since, upon the renunciation of her daughters of the succession, she became the heir under G.C. Art. 916, there being no surviving ascendants. See Paline v. Heroman, 211 La. 64, 29 So.2d 473 (1946). Thus, we conclude that appellant could not revoke her renunciation because her mother, who was the heir next in line, had already accepted the succession before she attempted the revocation.

Accordingly, the judgment appealed from ' is affirmed.

AFFIRMED.