author: YELVERTON, Judge.

text:
    Walter CLOUD, Plaintiff-Appellee, v. STATE of Louisiana, et al., Defendant-Appellant.
    No. 82-140.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.
    Writ Denied Dec. 10, 1982.

      Steven R. Giglio, Baton Rouge, for defendant-appellant.
    Eugene P. Cicardo, Alexandria, for plaintiff-appellee.
    Hicks & Breedlove, Roger J. Breedlove, Gist, Methvin, Hughes & Munsterman, David A. Hughes, Alexandria, for defendant-appellee.
    Before DOMENGEAUX, DOUCET and YELVERTON, JJ.
   YELVERTON, Judge.

Walter M. Cloud, M.D., sued the State of Louisiana in tort, and alternatively under Workers’ Compensation, for injuries received when he fell on the front steps of Central Louisiana State Hospital in Pine-ville while performing duties as deputy coroner of Rapides Parish. In addition, Dr. Cloud sued his personal workers’ compensation insurer, Hartford Accident and Indemnity Company.

Judgment was rendered awarding Dr. Cloud $265,816.86 against the State based on strict liability. The trial court allowed plaintiff to sue the State in tort finding that he was a public official and therefore excepted from coverage under the workers’ compensation laws. The trial court also recognized Hartford’s intervention for certain benefits paid plaintiff under the personal workers’ compensation policy. Plaintiff’s demands against Hartford for further benefits, as well as attorney fees and penalties, were rejected.

The State of Louisiana appeals. The plaintiff answered the appeal seeking an increase in the award of damages. Plaintiff also appeals the rejection of his claims against Hartford.

The first issue on appeal is whether Dr. Cloud was a public official or a public employee.

DR. CLOUD’S STATUS

When Dr. Cloud had the accident he was acting coroner for Rapides Parish. The accident happened on November 22, 1979, while he was exiting a building at Central Louisiana State Hospital after having seen some 15 or 20 patients there as part of his coroner duties.

The elected coroner of Rapides Parish was Dr. Ronald R. Tischler. In 1973 when plaintiff, Dr. Cloud, moved his practice to Alexandria, he entered into a relationship with Dr. Tischler which initially involved simply covering each other’s calls in their private practice on alternate weekends. This relationship expanded over the years to the point that Dr. Cloud was also covering coroner calls for Dr. Tischler. Due to a number of circumstances and especially Dr. Tischler’s failing health, the plaintiff began to do more and more of the coroner’s work. Prom September 1979 until after the accident the elected coroner was hospitalized in Shreveport. During this period plaintiff performed all of the coroner’s duties in Rapides Parish.

Dr. Cloud did not receive a salary. He was paid on a fee basis by Rapides Parish, presumably under the statutory fee schedule of LSA-R.S. 33:1558. Beginning in 1978, the coroner of Rapides Parish was required to examine patients committed from the .42 parishes of the State served by Central Louisiana State Hospital in Pine-ville; Dr. Cloud charged a commitment fee for each of these examinations. This is what he was doing the night of his accident. Income from his coroner-related medical practice is not separately stated on his 1979 income tax return, but is treated simply as part of his gross professional income.

Dr. Cloud was never administered an oath of office nor was he ever issued a commission. However, these are not valid tests of whether he was a public official because there are no statutory formalities involved in the commissioning of a deputy coroner. The testimony of both doctors indicated that Dr. Cloud had the authority from Dr. Tischler to act in his stead. Dr. Tischler wrote on a card and gave it to Dr. Cloud indicating that he had the power to act as coroner. Dr. Cloud was under the control of no one, not even Dr. Tischler, and he had the power to perform the duties of the office as he saw fit.

Under these factual circumstances the trial court concluded that Dr. Cloud was not an employee of the State or any political subdivision but rather that the doctor was a public official. Because of his status he could not sue the State under the workers’ compensation laws but he could sue the State in tort. We agree with these conclusions for the following reasons.

LSA-R.S. 23:1034 provides workers’ compensation benefits to public employees but excepts from coverage “an official of the state or a political subdivision thereof”. The terms “public office” and “public officer” are statutorily defined by LSA-R.S. 42:1 as follows:

“As used in this title, the term ‘public office' means any state, district, parish or municipal office, elective or appointive, or any position as member on a board or commission, elective or appointive, when the office or position is established by the constitution or laws of this state.
“ ‘Public officer’ is any person holding a public office in this state.”

The office of coroner is established by the Constitution. La.Const. of 1974, art. 5, § 29. The office of coroner is a State agency. Mullins v. State, 387 So.2d 1151 (La.1980). The position of deputy or assistant coroner is authorized by statute. LSA-R.S. 33:1552 provides that any coroner may appoint deputy or assistant coroners to perform his duties and that they are to possess the same qualifications as the coroner. It appears certain that “official of the state or a political subdivision thereof” as used in R.S. 23:1034 means the same as “public officer” as used in R.S. 42:1. Thus, both the coroner and a deputy coroner are public officials. The first is an office established by the Constitution and the second is a position authorized by the statutory law of the State.

Deputy sheriffs have been found to be public officers of the State rather than employees, and as such, not covered by workers’ compensation. Mitchell v. James, 182 So.2d 144 (La.App. 3 Cir.1966); Richardson v. Heyd, 278 So.2d 167 (La.App. 4 Cir.1973). When Phillips v. State, Through Department of Transportation, 400 So.2d 1091 (La. App. 1 Cir.1981), writ denied 401 So.2d 1195, writ not considered 403 So.2d 70, reached a contrary result, the Legislature promptly overruled it by amending R.S. 23:1034 to declare that sheriffs’ deputies are appointed public officers and officials of their respective political subdivisions.

Other cases on the subject have used various tests to distinguish between employees and public officials. When measured by these tests, deputy coroners come out looking like public officials. For example, a public official acts as agent of the State and exercises a portion of the sovereign power. Hyrhorchuk v. Smith, 390 So.2d 497 (La.1980); Courville v. Globe Indemnity Co., 63 So.2d 446 (La.App. 1 Cir. 1953). Another test is whether the office involves a large degree of independence and the public servant is not under the direct control and supervision of an employer. Hall v. City of Shreveport, 157 La.Ann. 589, 102 So. 680 (1925); Landry v. City of New Iberia, 223 So.2d 922 (La.App. 3 Cir.1969). A public official makes important policy decisions. Courville, supra. He has no contractual relationship with the State. In the case of McBeth v. Salvation Army, 314 So.2d 468 (La.App. 4 Cir.1975), the court stated: “Under our compensation law, the essence of the employer-employee relationship is a contractual hiring, either express or implied; in the absence of such a relationship, the law is not applicable”. (See also Hall, supra; Jeansonne v. Parish of East Baton Rouge, 354 So.2d 619 (La.App. 1 Cir.1977); Malone and Johnson, Louisiana Workers’ Compensation Law and Practice, § 51 (2nd Edition 1980)). A public official has to meet certain qualifications prescribed by law. Gourville, supra. Clearly, Dr. Cloud’s position meets these tests: he derived his authority from legislative enactment and exercised a portion of the sovereign power to the same extent as the Coroner himself; he was completely independent and not under the control or supervision of anyone, not even Dr. Tischler; he made important policy decisions, for example whether or not to commit a person to a mental hospital; he had no contractual relationship with the State; and he was statutorily required to have the same qualifications as the Coroner.

Based upon the above considerations we conclude, as did the trial judge, that plaintiff was a public official and, as such, excepted from coverage against the State under the workers’ compensation laws, and that he could therefore sue the State in tort.

The next issue is whether the trial court was correct in finding the State strictly liable for Dr. Cloud’s injuries.

THE STATE’S LIABILITY

The accident happened at about 11:30 on a rainy night. Dr. Cloud and his wife, who was assisting him on his rounds at the State Hospital, were leaving the building by the front door. . Outside, Mrs. Cloud was using the umbrella and Dr. Cloud began descending the steps in front of her. At about the third or fourth step from the street level his feet went out from under him and he fell backward. Mrs. Cloud did not see her husband fall. In a deposition taken before trial, Dr. Cloud stated that the step on which he fell was slick from the rain. This is all we know about how the accident happened.

The building and steps were constructed in 1927. This was the main set of steps at the front door of the hospital. They were described as “monumental” steps. Of concrete construction, the steps were approximately 20 feet wide between bulwarks on each side. There were 17 steps altogether. Between the top eight and the bottom nine there was a four or five foot wide plateau. There were no handrails. Although there were plenty of lights in the area, including two at the entrance doors and one on each of the two bulwarks, Mrs. Cloud testified that she did not think they were lit in the area where her husband fell. There was contrary evidence regarding the lighting.

The trial court concluded that the design and construction of these outside monumental steps, the absence of a handrail, the weather conditions and the lighting conditions, combined to create an unreasonable risk of injury. For these reasons the court awarded Dr. Cloud damages against the State based upon La.Civ.Code art. 2317.

We find the trial court clearly wrong in these conclusions for reasons which we will now explain.

The elements of proof required to make out a case under article 2317 are:

(1) the thing which caused the damage was in the care or custody of the defendant;
(2) the thing had a vice or defect, that is, it occasioned the unreasonable risk of injury to another; and
(3) the injury was caused by the defect.

Jones v. City of Baton Rouge, 388 So.2d 737 (La.1980); Shipp v. City of Alexandria, 395 So.2d 727 (La.1981); Morgan v. Hartford Accident and Indemnity Co., 402 So.2d 640 (La.1981); Goodlow v. City of Alexandria, 407 So.2d 1305 (La.App. 3 Cir.1981); Usry v. Louisiana Department of Highways, 402 So.2d 240 (La.App. 4 Cir.1981).

The essential factual determination is whether these steps presented an unreasonable risk of harm. To prove that they did, plaintiff relied on the testimony of Stephen R. Rosen, an expert in the biomechanics of stairstep fall accidents. It was this expert’s opinion that the steps were unreasonably dangerous because of a three to four degree back to front slope of the stair treads and a variation of one-quarter inch between riser heights. According to Dr. Rosen, these two defects in combination with the rain caused plaintiff to fall backward in his descent. Dr. Rosen did not know whether stairstep construction standards had been encoded as early as 1927. He could cite no modern code which prohibits or addresses the subject of inclines of outside tread construction. He correctly opined that a variation of one-quarter inch in riser heights is in violation of both the Southern Building Code and the Life Safety Code. He was under the mistaken impression that Louisiana had adopted only the Southern Building Code, which permits no variation. The Life Safety Code permits variations in riser heights of up to three-sixteenths inch. This expert felt that the presence of handrails will help break a fall and reduce injuries if the victim is within the “lunge range” of a handrail when he commences to fall. Dr. Rosen did not testify as to the effect, if any, of the lighting conditions, except to gratuitously comment that people walk down the stairs in their homes in darkness without falling. He also testified that the defects he measured in the daytime were “not easily perceivable to the eye”.

Dr. Rosen did not explain the biomechan-ics of how the very slight slant in the tread levels caused the fall. All he said was that there was a slant and that in his opinion this was the main reason for the fall. He was mistaken in his conclusion that the riser height variations were in violation of the Life Safety Code: in this respect he was in error either in his measurements or in his arithmetic. Our calculation based on his measurements results in a variation of only one-eighth inch which is well within the tolerance permitted by the Life Safety Code.

■ Betty Lee, an architect, testified as an expert for the State. She testified that the steps meet modern architectural principles and standards. She said she thought Louisiana had adopted the Life Safety Code and that her measurements of the slight variations in tread heights revealed compliance with the code. Her explanation of the slight decline in tread levels which amounted to no more than one-quarter inch at the forward edge of the tread was that this design conformed to a long-established architectural practice of sloping the tread for drainage purposes. In her opinion the steps were quite safe.

Hospital officials testified that during the 13 years of their tenure there, no record existed of any slip and fall accidents on these steps.

Under these circumstances, we fail to see how these irregularities rise to the dimension of presenting an unreasonable risk of harm. Not only that, but we fail to see in the record proof that these slight imperfections were the cause in fact of the injury. The facts reveal only that measurements were taken somewhere on the lower nine of these wide steps, and that the plaintiff was somewhere on the third or fourth step when his feet went out from under him. The facts neither generally nor specifically relate the fall to the location of the imperfections. The instant facts are unlike those in Jones v. City of Baton Rouge, supra, where the defective manhole cover was clearly the cause of the fall into the manhole, and also unlike the facts in Shipp v. City of Alexandria, supra, where a slight imperfection in the street surface, though ultimately found not to be unreasonably dangerous, was nevertheless the probable cause in fact of the ensuing fall. A finding for the plaintiff herein would mean that any time there is a fall on stairs which can be found to have any measurable variation in'riser heights or a measurable tread slant, strict liability is mandated. This would in effect make the State the insurer of anyone falling on steps of any of its numerous public buildings, for it is doubtful that any steps, old or new, are so perfectly constructed that minor imperfections cannot be found.

Since we have found that the plaintiff did not prove that the steps presented an unreasonable risk of injury, which is a fundamental element of proof required for either strict liability or negligence theories of recovery, we find that recovery cannot be allowed under either concept. For this reason we find it unnecessary to consider the State’s contention that contributory negligence, though not pleaded, should be considered by us on appeal.

For the above reasons, we conclude that the trial court was clearly wrong in finding liability and awarding damages against the State, and the judgment herein will be reversed.

PLAINTIFF’S PERSONAL WORKERS’ COMPENSATION INSURANCE

The final issue is whether the trial court erred in failing to find Hartford Accident and Indemnity Company liable to plaintiff as his personal workers’ compensation insurer.

There was in effect at the time of this accident a policy issued by Hartford to Dr. Cloud providing workers’ compensation coverage within his duties as “PHYSICIAN & C”. The policy also provided that the workman’s compensation law of Louisiana was applicable.

Hartford initially paid the plaintiff $148 a week for 47 weeks ($6,956) in compensation benefits and paid $16,543.82 in medical expenses. These payments covered the period between November 22, 1979 and October 15, 1980, at which time the company terminated benefits under the policy. There is no evidence in the record as to what facts Hartford relied upon to discontinue benefits, nor did Hartford ever notify plaintiff as to why benefits were discontinued. We can surmise, based upon appellant’s brief, that it was Hartford’s position that Dr. Cloud was not within the course and scope of his duties as a physician but was acting in his official capacity as a deputy coroner.

We fail to see how this might constitute a reasonable basis for discontinuing benefits. Although we have found that the doctor was a public official at the time of his accident, that means only that he was not covered for workers’ compensation benefits as a public employee by the State. At the time of his accident he was very much engaged in his profession as a physician. He did not cease being a physician just because he was seeing patients in connection with his official duties as deputy coroner. The law requires that a coroner and a deputy coroner be physicians. The policy clearly covered all duties which related to Cloud’s medical practice as a physician. Dr. Cloud’s income derived from coroner-related duties was just another source of income from his practice of medicine. For these reasons we believe that Hartford was not justified in terminating benefits under its policy.

It is clear from the record that Dr. Cloud was totally and permanently disabled by his injuries and complications and was entitled to benefits in accordance with LSA-R.S. 23:1221(2). At the time of trial he was suffering from chronic osteomyelitis involving the right femur and a draining infection that made it dangerous for him to be around patients. It was felt that possibly he could resume limited practice in a year, perhaps longer, but due to the weakness in his legs it was doubtful that he would ever be able to handle his past workload.

As to the issue of attorney’s fees and penalties, whether the discontinuance of compensation payments is arbitrary, capricious or without probable cause depends primarily upon the facts existing and known to the insurer at the time payments were stopped. Such facts must justify the discontinuance. See Lee v. Smith, 248 La. 16, 176 So.2d 413 (La.1965); and Thibodeaux v. Dresser Industries, Inc., 407 So.2d 37 (La.App. 3 Cir.1981); writ denied 412 So.2d 85 (La.1982).

In the present case Hartford has offered no evidence as to the facts which it relied upon when it discontinued the benefits. The company also failed to notify the plaintiff of the reasons for such discontinuance. We can find from the record no facts to justify the discontinuance of benefits. Under these circumstances we find the termination of benefits was arbitrary and capricious and Hartford is therefore liable for penalties and attorney’s fees. LSA-R.S. 23:1201.2.

We have reviewed the record in the case and conclude that an award of $4,000 for the attorney’s services, including the trial and appeal involved in this matter, is appropriate. See Thibodeaux, supra.

The further award of 12% interest applies from the date on which benefits were terminated (October 15, 1980) until date that such back payments are made current.

For the reasons assigned, the judgment herein awarding plaintiff damages against the State of Louisiana is reversed. The judgment rejecting the demands of plaintiff against Hartford Accident and Indemnity Company is reversed, and judgment is rendered awarding weekly benefits at the rate of $148 from October 15, 1980 to September 11, 1982, together with 12% interest as a penalty from October 15, 1980, until the date the back payments are made current, and attorney’s fees for services both at trial and on appeal in the amount of $4,000. The trial court judgment awarding Hartford’s claims by way of intervention against the State is also reversed, and judgment is rendered rejecting the intervention. Costs both at the trial level and on appeal are assessed to Hartford Accident and Indemnity Company.

REVERSED AND RENDERED.

      .“Any coroner may appoint deputy or assistant coroners to perform his duties, they are to possess the same qualifications as the coroner, to be paid by the coroner appointing them, and the tenure of their appointment to continue for the length of time determined by the appointing coroner, but not longer than his own term of office, and the coroner shall be responsible for their acts. The coroner may appoint any necessary secretaries, stenographers, clerks, technicians, investigators, official photographer, or other helpers, and the fee or salaries of each and all of these to be paid by the coroner out of his fees, or by arrangement with the police jury if the coroner is on a salary basis, except parish of Orleans where fees or salaries are to be paid by the city of New Orleans.”

      . The Legislature in 1981 added language to R.S. 23:1034 to expressly so provide. See Act 25, Ex. Sess. of 1981.

      . At first glance it might seem that the same reasoning applies to “secretaries, stenographers, clerks, technicians, investigators, official photographer, or other helpers", since R.S. 33:1552 (set out in footnote 1) also authorizes a coroner to appoint them. However, the statute appears to make a clear distinction between a deputy coroner who is to have the qualifications of the coroner and is empowered to perform his duties, and helpers who are merely employees because they lack the qualifications and authority of the coroner.

      . Act 25, Ex. Sess. of 1981.

      . Monumental steps have an aesthetic purpose. According to the State’s expert, they are found on structures like the Louisiana State Capitol and the War Tower at LSU.

      . “Art. 2317. Acts of others and of things in custody. We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.”

      .The witness formulated this opinion on the day before trial. Previously, based upon measurements supplied to him by mail and his understanding that the plaintiff had fallen forward, he was prepared to testify that something having to do with the tread lengths caused the fall. On discovering the day before trial that plaintiff had fallen backward, the expert went to Central Hospital and took some measurements of his own. It was then that he came to the conclusion that the tread lengths had nothing to do with the accident but that the actual cause was a combination of the back to front decline of the tread levels and the variations in riser heights.

      . Dr. Rosen said: “At this particular accident scene yesterday, on the nine risers on the side where Dr. Cloud fell, I got measurements of six point 0 inches (6.0), six point 0 (6.0), and all the rest were five and seven eights [sic] (5/sths) inches. So there was a quarter inch ('A") difference going down.”
      The permissible variations apply from step to step, not cumulatively.

      . She was correct. By Act 706 of 1975 (LSA-R.S. 40:1722), the Legislature adopted both the Southern Building Code and the Life Safety Code.

      . The State argues on appeal that evidence was admitted at the trial without objection that plaintiff was a longtime user and heavily addicted to the morphine derivative drugs Dilau-did and Talwin and under the influence of these drugs at the time of the accident, as evidenced by the hospital records of Herman Hospital in Houston where he was taken after the accident, and also by the depositions of his two physicians there.

      . Under LSA-R.S. 33:1556 the coroner of each parish shall be a licensed physician unless a licensed physician fails to accept the office. In the present case, both Dr. Tischler and Dr. Cloud were licensed physicians.

      . At oral arguments plaintiff’s counsel informed the court that Dr. Cloud died on September 11, 1982. A certificate of death was received by the court on_Therefore plaintiff is entitled to benefits from October 15, 1980 to September 11, 1982, and medical expenses incurred as a result of the accident after October 15, 1980.


source: Caselaw Access Project

author: LABORDE, Judge.

license: Public Domain

text:
    COILED TUBING, INC., Plaintiff-Appellee, v. Robert MORRIS, d/b/a Eldorado Gas Company, Inc., Defendant-Appellant.
    No. 82-144.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.
    Hawley & Sehexnayder, W. Paul Hawley, Lafayette, for defendant-appellant.
    Mark C. Landry and Robert T. Wakefield, of Newman & Drolla, New Orleans, for plaintiff-appellee.
    Before CULPEPPER, GUIDRY and LA-BORDE, JJ.
   LABORDE, Judge.

This matter comes before this Court after having been consolidated for purposes of appeal with suit # 82-143 entitled Cudd Pressure Control, Inc. v. Eldorado Gas Company, 420 So.2d 1270. Both suits were brought for the enforcement of a lien that Coiled Tubing, Inc. had recorded against defendant, Eldorado Gas Company Inc., as a consequence of the reworking of an oil and gas well located in Evangeline Parish, Louisiana.

Coiled, just prior to the start of the trial, moved to substitute Cudd Pressure Control, Inc. as party plaintiff in lieu of itself, since the two companies being subsidiaries of the same parent company, Rollins, had allegedly been merged effective January 2, 1981. Counsel for Eldorado objected to the substitution and filed an exception of no right of action at that time. Both the motion to substitute and the exception were taken under advisement by the trial judge and, at the conclusion of the evidence, the trial court allowed Cudd to be substituted for Coiled, overruled Eldorado’s exception of no right of action, and granted judgment as prayed for by plaintiff, (now Cudd), recognizing and maintaining its lien in the amount of $30,527.96 with legal interest from March 16,1981, until paid, with attorney’s fees of 10% and all costs. From this adverse judgment, Eldorado has appealed devolutively. We affirm.

In the companion case above captioned, bearing # 82-143, Cudd brought suit against Eldorado as a consequence of the reworking of the same well referred to earlier, likewise seeking the enforcement of the lien that Coiled had recorded against Eldorado. In its petition, which was filed on December 1, 1981, (one day before the rendition and filing of the judgment in Cudd’s favor in the first suit), Cudd alleged that it was the surviving corporation of a merger between itself and Coiled which became effective on January 2, 1981, and hence, was the proper party to bring an action to enforce the lien against Eldorado held under the name of Coiled. Eldorado filed an exception of lis pendens seeking dismissal of Cudd’s suit with prejudice. The trial court granted Eldorado’s exception of lis pendens, dismissing Cudd’s suit without prejudice. From this judgment, Cudd has appealed.

EXCEPTION OF LIS PENDENS

For ease of discussion, the exception of lis pendens will first be considered. By the filing of the exception of lis pendens, Eldorado naturally contends that Cudd and Coiled are one and the same. It is admitted by Cudd in paragraph 2 of their “Motion to Consolidate Cases on Appeal”, that “both parties in each suit are identical”. Therefore, it is conceded by Coiled Tubing and/or Cudd Pressure Control, Inc. that the exception of lis pendens is valid. Since suit # 82-143 deals only with the validity of the exception of lis pendens, that issue is now moot and we need concern ourselves only with the merits of suit # 82-144.

Even supposing that the issue was not moot, the exception of lis pendens would nevertheless have to be sustained. Article 531 of the Louisiana Code of Civil Procedure provides in part, that:

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

In the case of Scott v. Ware, 160 So.2d 237 (La.App. 2nd Cir.1964), a suit had been filed, tried, and was on appeal, when the same plaintiff filed an identical action against the same defendant. Defendant filed an exception of lis pendens, which the trial court sustained. In sustaining the judgment of the trial court, the Court of Appeal cited the case of Gardino v. Scroggins, 190 La. 53, 181 So. 810 (La.1938), where, “a plea of lis pendens was sustained and the second suit dismissed, where the second suit involved the same parties in identical capacities, was based upon the same cause of action and had the same object, even though the same suit was pending on appeal.”

Clearly, in the case at hand, the exception of lis pendens was properly sustained in that the parties, cause of action, and object of both suits were identical. At the time that'the exception of lis pendens was filed and decided, there was as yet no final judgment in the matter entitled “Coiled Tubing, Inc. v. Eldorado Gas Company, Inc.”, the delays for devolutive appeal not having yet run. Therefore, the exception of lis pendens was properly maintained.

SUBSTITUTION AS PARTY PLAINTIFF

Eldorado’s first contention is that the trial court erred in allowing Cudd to substitute itself as plaintiff in the action originally begun by Coiled. In the case of Gulf Bldg. Serv. v. Travelers Indem., 365 So.2d 870 (La.App. 4th Cir.1978), the Court of Appeal was faced with similar facts. Plaintiff, Gulf Building Services, merged into Macke Building Services Co., Inc., in 1970. In 1974, Gulf Building Services instituted suit on a claim against Travelers, and Travelers filed an exception of no right of action. The trial court dismissed the case, and Gulf appealed, seeking leave to substitute parties plaintiff. The court therein stated:

“We hold only that in the case of a petition by a merged corporation asserting a claim under a premerger contract, a judgment maintaining an exception of no right of action (on the grounds that the merged corporation is no longer a “person” at interest, C.C.P. 681, and that the claim was not “existing” within R.S. 12:115E at the time of the merger) should, rather than dismiss the petition, order amendment to substitute as plaintiff the corporation which survived the merger.”

Furthermore, LSA-C.C.P. Article 934 provides:

“When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection cannot be so removed, or if plaintiff fails to comply with the order to amend, the action shall be dismissed.”

Therefore, even if. the trial judge had in this case sustained Eldorado’s exeeption, it could properly have granted Coiled the right to substitute Cudd as plaintiff. As this court said in Hodges v. LaSalle Parish Police Jury, 368 So.2d 1117 (La.App. 3rd Cir.1979):

“When the ground of exception can be removed by amendment, the trial court must allow petitioner the opportunity to amend.”

We agree with this statement of the law and find no error on the part of the trial judge.

NO RIGHT OF ACTION

Eldorado next contends that the trial court erred in having failed to sustain its exception of no right of action, which was filed in response to Cudd’s motion to substitute itself as party plaintiff. The exception of no right of action raises the question of whether a remedy afforded by the law can be invoked by the particular plaintiff bringing the action. Concerned Citizens of Rapides Parish v. Hardy, 397 So.2d 1063 (La. App. 3rd Cir.1981); Bamber Contractors, Inc. v. Henderson Brothers, Inc., 345 So.2d 1212 (La.App. 1st Cir.1977).

There can be little doubt that had Coiled never allegedly merged with Cudd, Coiled would have had a cause of action to enforce and recognize its lien, and it would have as well had a right of action to bring the suit. However, in this case, Eldorado urges that because of the alleged merger of Cudd and Coiled, and the substitution of Cudd as plaintiff, that Cudd is without right to bring the cause of action.

Referring once again to Eldorado’s exception of lis pendens filed in the companion case, # 82-143, 420 So.2d 1270, the following language is used:

“... that the parties therein are the same parties in this action, that the said proceeding involves the same cause of action, and has the same object as the instant suit; and the exceptor specifically pleads the pendency of the said action in bar of prosecution of the instant suit.”

Because of this judicial admission made by Eldorado, it cannot now be heard to say that Cudd and Coiled are not one and the same. It is obvious that they are, and as a result thereof, Cudd has the right of action to prosecute the suit to enforce and recognize the lien.

THE MERITS

Eldorado’s final contention is that the trial court rendered judgment based on hearsay testimony and on evidence in the form of exhibits, in violation of the best evidence rule.

In Hebert v. Brazzel, 393 So.2d 135 (La. App. 3rd Cir.1980), this Court reiterated the law concerning appellate review of factual issues:

“Our review of factual issues is controlled by the principle established by the Supreme Court in Canter v. Koehring Company, 283 So.2d 716 (La.1973) and Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). In those two cases, the standard of review to be applied to factual determinations by the trier of fact, whether judge or jury, was declared to be manifest error. Manifest error was defined as meaning clearly wrong. Therefore, our review of the factual determinations consists of a review of the record to establish whether or not they are clearly wrong.”

In doing so, this Court must give great weight to the reasonable evaluations and inferences of fact made by the trial court. The trial court evaluated the testimony of William F. Alexander. Alexander was the Coiled Tubing employee who actually performed the work at the job site for Coiled and was in charge of their crew. He testified that the work charged for on the “job orders” filed in the record as P-1 in globo was in fact performed and that he knew of this from his personal knowledge. Alexander testified that as the work was done, he signed the Coiled Tubing “tickets”. He further testified that the work was performed by Coiled under his supervision and was properly done. The trial court was not clearly wrong in accepting Alexander’s testimony. Such a conclusion was a reasonable evaluation of testimony and credibility of the witness which is well supported by the record.

Eldorado’s contention that the trial court based its decision upon documents in the record which are “not the best evidence” is without merit. At the time that the documents in question, namely P-1 in globo (invoices and job orders) and P-2 (lien affidavit) were offered and filed into evidence, counsel for Eldorado had no objection to their introduction. Having failed to object to the introduction of the documents into evidence at the time they were offered, counsel for Eldorado may not now question their introduction into evidence on appeal.

For the reasons assigned, the judgment in Coiled Tubing Inc. v. Eldorado Gas Company, Inc., 420 So.2d 1267 is affirmed with costs assessed to appellant.

AFFIRMED.

      . LSA-C.C.P. Article 532; LSA-C.C.P. Article 925(3).


text:
    CUDD PRESSURE CONTROL, INC., Plaintiff-Appellant, v. ELDORADO GAS COMPANY, Defendant-Appellee.
    No. 82-143.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.
    Newman & Drolla, Mark C: Landry, New Orleans, for plaintiff-appellant.
    Hawley & Schexnayder, W. Paul Hawley, Lafayette, for defendant-appellee.
    Before CULPEPPER, GUIDRY and LA-BORDE, JJ.
   LABORDE, Judge.

This matter comes before this Court after having been consolidated for purposes of appeal with suit # 82-144 entitled Coiled Tubing, Inc. v. Robert Morris, d/b/a Eldorado Gas Company, Inc., 420 So.2d 1267. For the reasons assigned in the judgment of this date in # 82-144, Coiled Tubing, Inc. v. Robert Morris d/b/a Eldorado Gas Co., Inc., 420 So.2d 1267, judgment of the trial court on the exception of lis pendens is affirmed.

Costs of this appeal are assessed against Cudd Pressure Control, Inc.

AFFIRMED.


author: CULPEPPER, Judge.

text:
    Willie BEATY, Plaintiff and Appellee, v. COLGROVE CONSTRUCTION COMPANY, et al., Defendant and Appellant.
    No. 82-147.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.
    Henderson, Hanemann & Morris, Robert L. Morris, Houma, for defendant and appellant.
    C. Brent Cored, Ville Platte, for plaintiff and appellee.
    Before CULPEPPER, GUIDRY and LA-BORDE, JJ.
   CULPEPPER, Judge.

This is a suit by a laborer against a subcontractor and a general contractor for past due wages in the sum of $3,136 and penalties and attorney’s fees. The trial court rendered judgment against McCullough & Associates, Inc., the general contractor, for the amount of past due wages, legal interest, plus penalties in the amount of $12,960, and attorney’s fees in the sum of $1,043.33, under authority of LSA-R.S. 23:631. Additionally, McCullough was cast for $50 costs of recording the lien. There was no judgment taken against the subcontractor, Colgrove Construction Company, and that matter is still pending. From this judgment, McCullough & Associates, Inc. has appealed.

There are two issues. The first is whether the general contractor, McCullough & Associates, Inc., was an employer within the meaning of R.S. 23:631 and therefore liable for penalties and attorney’s fees in addition to the past due wages. McCullough stipulated prior to trial that if plaintiff proved his demand for wages against Colgrove Construction Company, then McCullough was liable for the amount of past due wages. However, McCullough reserved all rights on its liability for penalties and attorney’s fees under R.S. 23:631 and 632 and submitted written briefs on that issue.

If we overturn the holding of the trial court, there will be a second issue, i.e., whether McCullough is liable for 10% attorney’s fees under LSA-R.S. 38:2246.

There is no factual dispute as to who actually employed the plaintiff. In the laborer’s lien which plaintiff recorded with the clerk of court for Evangeline Parish and which is attached to his petition, he states that he was an employee of Colgrove Construction Company who was a subcontractor of McCullough Contracting Company, Inc. His testimony at trial is identical. He makes no claim that McCollough was his diréct employer.

Plaintiff claims he is entitled to penalties and attorney’s fees under LSA-R.S. 23:631 which states:

“Upon the discharge or resignation of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, not later than three days following the date of discharge or resignation.”

LSA-R.S. 23:632 outlines the penalties for anyone failing to comply with the previous section. It states that the employer who fails or refuses to comply with the above statute shall be liable to the employee, either for 90 days’ wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made, until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is lesser. Additionally, reasonable attorney’s fees are to be allowed the laborer, in the event a well-founded suit for unpaid wages is filed to collect the amounts due after the 3-day period.

These statutes are penal in nature and should therefore be strictly construed. Mitchell v. Fein, 281 So.2d 463 (La.App. 4th Cir.1973) and Mitchell v. First National Life Insurance Company of Louisiana, 109 So.2d 61, 236 La. 696 (La.1959).

LSA-R.S. 23:631 and 632 refer specifically to the “employer.” In this ease, it is undisputed that Colgrove Construction Company was the employer of the plaintiff. McCullough & Associates, Inc. was not the employer, although it admits it is liable to plaintiff under the Public Works Lien Statute, LSA-R.S. 38:2241-2247, for any wages due from its subcontractor, Colgrove.

Johnson v. Banner Corporation, 308 So.2d 534 (La.App. 4th Cir.1975) held in a similar case that a contractor who was liable to a laborer employed by a subcontractor for wages was not an employer within the meaning of R.S. 23:631 and, therefore, the plaintiff was not entitled to penalties and attorney’s fees under LSA-R.S. 23:631. We agree.

Additionally, we note that no demand was ever made in the present case upon McCullough for payment pursuant to La. R.S. 23:631. The notice was sent only to Colgrove.

We now turn to the issue of whether plaintiff is entitled to attorney’s fees under LSA-R.S. 38:2246 which states:

“After amicable demand for payment has been made on the principal and surety and thirty days has elapsed without payment being made, any claimant recovering the full amount of his recorded or sworn claim whether by concursus proceeding or separate suit, shall be allowed ten percent attorney’s fees which shall be taxed in the judgment on the amount recovered.”

Amicable demand was made upon McCullough. Plaintiff testified that he orally contacted a representative of McCullough and did mail McCullough his statements for past due wages, which are a part of the record. The mailing of these statements was amicable demand. McCullough responded with a letter to the plaintiff dated December 5, 1980, stating that he would be paid as soon as some other documents were received from the subcontractor, Colgrove. The date of the letter of demand to Col-grove was October 16, 1980.

We conclude McCullough is liable for 10% attorney’s fees under LSA-R.S. 38:2246, i.e., the sum of $313.60.

During trial, the court asked plaintiff’s attorney whether he wanted to prove up his default against Colgrove Construction Company, who never filed an answer. He stated that things are “still up in the air” with regard to Colgrove. Thus, the question of whether Colgrove Construction Company is liable for penalties and attorney’s fees under 23:631 and 632 is not before us.

For the reasons assigned, the judgment appealed is reversed and set aside and is recast as follows: It is ordered, adjudged and decreed that there be judgment herein in favor of the plaintiff, Willie Beaty, and against the defendant, McCullough & Associates, Inc., in the full sum of $3,136, plus legal interest thereon from date of judicial demand until paid, and attorney’s fees in the sum of $313.60 and the sum of $50 representing the cost of preparing and recording the labor lien. All costs in the trial and appellate courts are assessed against the plaintiff-appellee.

REVERSED AND RECAST.


text:
    McKinley SIMMONS, Plaintiff-Appellant, v. BARTLEET CHEMICAL, INC. and United States Fidelity & Guaranty Company, Defendants-Appellees.
    No. 82-148.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.

      Emile C. Toups, Lafayette, for plaintiff-appellant.
    Gachassin & Capretz, Nicholas Gachassin, Jr., Lafayette, for defendant-appellee.
    Before CULPEPPER, GUIDRY and LA-BORDE, JJ.
   LABORDE, Judge.

McKinley Simmons, plaintiff-appellant, sued Bartleet Chemical, Inc. and its insurer, United States Fidelity & Guaranty Company (USF&G), for personal injuries sustained in an automobile accident. The lower court sustained defendants’ plea of prescription and Simmons appeals. Whether plaintiff’s claim had prescribed is the issue on appeal. We affirm.

On July 13,1979, plaintiff, McKinley Simmons, was injured when his automobile was involved in a collision with an automobile owned by Bartleet, insured by USF&G and driven by an employee of Bartleet. After the accident, Simmons hired an attorney to represent him. During October, 1979, the property damage claim resulting from the above accident was settled for $1,650.00. A cancelled check and a letter confirmed this settlement. USF&G’s agent, Arlene Signo-relli contacted Simmons’ attorney by letters dated October 22, 1979, November 29, 1979, January 17, 1980, and March 25, 1980. By the above correspondence USF&G tried to obtain copies of any medical bills, reports or lost wage verification. The attorney for Simmons did not respond to the requests for information sought by USF&G. USF&G closed their file concerning Simmons on July 29, 1980. On November 19, 1980, Simmons’ attorney wrote USF&G regarding a possible settlement of Simmons’ personal injuries. USF&G replied that the claim for Simmons had prescribed on July 13,1980, therefore, they would not be in the position to make a settlement with him. It should be noted that from October 1979, to November 1980, a period of one year, USF&G had no contact from either Simmons or his attorney regarding any claim being made by. Simmons for his alleged personal injury. On July 8, 1981, Simmons filed a lawsuit for bodily and personal injury damages as a result of the accident which occurred on July 13, 1979. USF&G filed an Exception of Prescription inasmuch as the suit was filed more than one year after the date of the accident. The trial judge ruled in USF&G’s favor after a hearing on the exception and dismissed Simmons’ suit.

Simmons’ claim is predicated upon an offense or quasi-offense within the purview of Louisiana Civil Code Article 2315, the applicable prescriptive period of which is one year. LSA-C.C. Articles 3536 and 3537. A prima facie showing has been made that the claim has prescribed due to the fact no judicial demand had been made prior to the lapse of one year from the date of the accident. An important question arises whether the running of prescription has been interrupted. The general rule regarding the burden of proof is that when the plaintiff’s petition shows on its face that the prescriptive period has run, and the plaintiff contends that there was a suspension or interruption of prescription, the burden is on the plaintiff to prove the suspension or interruption. Cordova v. Hartford Accident and Indemnity Co., 378 So.2d 1088 (La.App.3rd Cir.1979).

Simmons argues that his suit was timely filed because the running of prescription was interrupted. The interruption occurred when USF&G acknowledged their liability by sending letters to Simmons’ attorney requesting medical bills, reports and lost wage verifications and by paying the property damage claim.

Louisiana Civil Code Article 3520 provides as follows:

“Prescription ceases likewise to run whenever the debtor, or possessor, makes acknowledgment of the right of the person whose title they prescribed.”

Louisiana Civil Code Article 3520 does not require that such an acknowledgment be in any particular form. It may be made verbally, in writing, by partial payment, by payment of interest, by pledge or in other ways; and it may be inferred from the facts or circumstances. By its terms, Louisiana Civil Code Article 3520 is applicable to the prescription of all rights and actions and the Supreme Court finds no justification in the Civil Code for insulating rights based on offenses or quasi-offenses from its effects. Flowers v. U.S. Fidelity & Guaranty Co., 381 So.2d 378 (La.1980). To constitute an acknowledgment the actions of the defendant must clearly and specifically indicate that the defendant accepts liability. Marathon Insurance Company v. Warner, 244 So.2d 353 (La.App. 2nd Cir.1971). The facts show the adjuster, Arlene Signorelli, expressed a willingness to discuss Simmons’ claim. However, her statements and actions in writing the letters did not manifest an intention to admit the company’s liability for the personal injuries. In our view, the insurance company never admitted that it owed Simmons for his personal injuries.

The Supreme Court in Collins v. Capital Valve and Fitting Co., 409 So.2d 579 (La.1982) held that the settlement of property damages resulted in a transaction or compromise. The court looked at Louisiana Civil Code Article 3073 to determine the scope of a transaction or compromise. Louisiana Civil Code Article 3073 states:

“Transactions regulate only the differences which appear clearly to be comprehended in them by the intention of the parties, whether it be explained in a general or particular manner, unless it be the necessary consequence of what is expressed; and they do not extend to differences which the parties never intended to include in them.”

The court held based on the above that the payment of the property damage did not affect the prescriptive period on the other elements of damage. In the present case which is similar to Collins v. Capital Valve and Fitting Co., supra, the parties agreed that the payment in October of 1979 was for the property damages only. This settlement was a transaction or compromise. In this case, the intent of both parties concerning the scope of the transaction is readily apparent. Simmons restrictively endorsed the draft to show he settled only the property damage. USF&G issued a letter to Simmons confirming the offer to settle the property damage. The letter states: In our view, payment of Simmons’ property damage claim did not amount to an acknowledgment sufficient to interrupt prescription running against his claim for personal injury damages.

“This will confirm our phone conversation wherein United States Fidelity & Guaranty Company offered $1,650.00 to settle Mr. Simmons’ property damage. Please present this offer to your client and let me know of the decision...”

Even if the prescription had been interrupted by an acknowledgment by USF&G, the suit would still not be timely filed. The last possible interruption took place on March 25, 1980, which was a year and five months prior to the filing of the suit. When prescription is interrupted, the prescriptive period starts anew. Therefore, the one year prescriptive period running from the interruption had expired prior to the filing of the suit. In our view, the trial court was correct in sustaining the plea of prescription.

Simmons alternatively argues that under the circumstances defendants are es-topped from relying on the prescription of one year as a bar to his claim. To use equitable estoppel, the pleader must prove he relied on the representation or conduct of the other party, the reliance was justified and the position of the plaintiff was changed to his detriment because of his reliance. Wilkinson v. Wilkinson, 323 So.2d 120 (La.1975).

Simmons’ reliance was not justified. He was represented by an attorney at all times. The only contact prior to the running of prescription and after the property settlement consisted of four letters sent by USF&G requesting medical information. The record discloses that Simmons did not communicate with the defendants from October, 1979, to November, 1980, approximately one year. An essential element of estoppel, justifiable reliance, is totally lacking in this case. We must conclude that Simmons failed to exercise reasonable diligence in pursuing his claim, and that claim is prescribed under Louisiana Civil Code Articles 3536 and 3537.

For the reasons assigned the judgment appealed from is affirmed at appellant’s cost.

AFFIRMED.

      . The Supreme Court reversed the court of appeal’s decision. Cordova v. Hartford Accident & Indem. Co., 387 So.2d 574 (La.1980). The reversal was based on other grounds. The general rule stated above was not addressed by the court.


author: CUTRER, Judge.

text:
    NAPASCO INTERNATIONAL, INC., WESTERN DIVISION, Plaintiff-Appellant, v. Keith MAXSON, Defendant-Appellee.
    No. 82-152.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.

      Frank J. Uddo, New Orleans, for plaintiff-appellant.
    Leger & Babineaux, Mark A. Babineaux, Lafayette, for defendant-appellee.
    Before FORET, CUTRER and STOKER, JJ.
   CUTRER, Judge.

This appeal arises from a trial court judgment which denied a preliminary injunction in a suit by an employer who was seeking to enforce noncompetition and nonsolieitation clauses of an employment contract entered into with a former employee.

Napasco International, Inc., Western Division (Napasco) filed suit against its former employee, Keith Maxson, seeking a preliminary injunction to enjoin Maxson from violating the provisions of his employment contract with Napasco.

After hearing, the trial court found that under the provisions of LSA-R.S. 23:921 the noncompetition and nonsolicitation clauses of the employer-employee contract were unenforceable. Napasco’s suit for in-junctive relief was dismissed. Napasco appeals. We affirm.

The substantial issue is whether LSA-R.S. 23:921 renders the noncompetition and nonsolicitation clauses of the employment contract unenforceable.

Napasco contends that the statute is inapplicable for the following reasons:

(1) Maxson was not an employer of Napasco but his relationship with Napas-co was akin to that of an “independent contractor;”
(2) Maxson entered into the contract in bad faith; or
(3) The nonsolicitation clauses of the contract are enforceable under the contract by jurisprudential rule which distinguishes nonsolicitation clauses from non-competition clauses.

Napasco sells chemical products such as janitorial supplies, degreasers and solvents. To facilitate its sales business Napasco employs sales representatives who contact established and prospective customers. On August 13, 1980, Keith Maxson entered the employ of Napasco as a sales representative. At that time, or sometime thereafter, Maxson executed a written employment contract with Napasco. The contract is in evidence and contains clauses which prohibit competition and solicitation of former customers by Maxson for one year after termination of his employment.

Maxson continued in the employ of Na-pasco until July 1981. At that time Maxson left Napasco and went to work for Bancroft Paper Company (Bancroft). Bancroft is a distributor of paper products, cleaners, detergents, and insecticides. Some of Bancroft’s sales occur in the same geographical area as that of Napasco.

Napasco sought to enjoin Maxson from violating the noncompetition clauses and the nonsolicitation clause of his contract with Napasco. Napasco alleged that Max-son was calling on customers of Napasco, passing on trade secrets of Napasco, providing information about Napasco’s operations, selling competitive' products to Napasco’s customers and causing Napasco to lose business.

The trial court held that the statute in question rendered the contract unenforceable. The record fully supports the trial court’s ruling.

LSA-R.S. 23:921 provides as follows:

“No employer shall require or direct any employee to enter into any contract whereby the employee agrees not to engage in any competing business for himself, or as the employee of another, upon the termination of his contract of employment with such employer, and all such contracts, or provisions thereof containing such agreement shall be null and unenforceable in any court, provided that in those cases where the employer incurs an expense in the training of the employee or incurs an expense in the advertisement of the business that the employer is engaged in, then in that event it shall be permissible for the employer and employee to enter into a voluntary contract and agreement whereby the employee is permitted to agree and bind himself that at the termination of his or her employment that said employee will not enter into the same business that employer is engaged over the same route of in the same territory for a period of two years. As amended Acts 1962, No. 104 §§ 1, 2.”

WAS MAXSON AN “INDEPENDENT CONTRACTOR?”

Napasco contends that Maxson’s relationship with Napasco was akin to an “independent contractor” as distinguished from an employee. Thus, R.S. 23:921 is not applicable. Napasco relies principally on the case of Simpson v. Kelly Services, Inc., 339 So.2d 490 (La.App. 2nd Cir.1976), writ den., 341 So.2d 1121 (La.1977), to support its position. In that case the court found that Mrs. Simpson was not an employee of Kelly but an independent contractor. The court applied the following tests:

‘It is well settled by our jurisprudence that besides other factors, the most important test in determining “whether a person employed to do certain work is an independent contractor or a mere servant is the control over the work which is reserved by the employer.” It is also well settled that whether the employer “actually exercises control or supervision” over the movements and the services rendered by the employee, such a fact is of no great moment, the “important question is whether, from the nature of the relationship, he had the right to do so”. * * *
“‘In the case of Hartwig Moss Ins. Agency, Limited, v. Board of Com’rs of Port of New Orleans, 206 La. 395, 19 So.2d 178, 184, we said:
“‘An independent contractor is one who renders service in the course of an occupation representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished.’”

In Kelly, Mrs. Simpson was the branch manager of a national temporary personnel agency (Kelly Services, Inc.). Receiving no salary, she worked purely on a commission basis and furnished at her own expense the facilities necessary for the operation of her business. She paid the salaries of the people that helped her in her branch office and, importantly, in Section 15 of her employment contract, she was expressly denied the status of employee of Kelly Services, Inc.

With these considerations in mind the court then assessed the degree of control Kelly Services Inc. had over Mrs. Simpson. That court found that Mrs. Simpson was in complete control of her business with the exception of some office procedure. Based on these findings the court found that Kelly Services, Inc.’s degree of control over Mrs. Simpson was insufficient to make her an employee of that company. In view of such a conclusion the court held that LSA-R.S. 28:921 did not apply to her employment contract.

By comparison Keith Maxson did not enjoy the same freedom with Napasco that Mrs. Simpson enjoyed. Maxson was given a list of customers by Napasco that he was to contact. He was also given direction by Napasco as to how he was to handle his contacts. Maxson received a salary and worked out of Napasco’s office in Lafayette.

The right of control and direction in the conventional sense of employment relation is one of the most important tests in determining whether one is an employee. Whether the right is exercised is of much less importance. Simpson v. Kelly Services, Inc., supra; Amyx v. Henry & Hall, 79 So.2d 483 (La.1955). Applying this test this court finds that as a salesman, Maxson was subject to sufficient control and direction of Napasco to make Maxson an employee of Napasco. In view of this court’s finding that Maxson was an employee of Napasco, that company cannot escape the operation of LSA-R.S. 23:921 which makes the subject contract unenforceable.

WAS MAXSON IN BAD FAITH IN SIGNING THE CONTRACT

Napasco contends that LSA-R.S. 23:921 is inapplicable as Maxson was in bad faith when he signed the contract. Napasco cites a portion of Maxson’s testimony and interprets this testimony to mean that Maxson had no intention of remaining in the employment when he signed the contract. We have reviewed the entire testimony of Max-son, including the small portion cited by Napasco, and conclude that the argument that Maxson was in bad faith is without merit.

After reviewing Maxson’s uncontroverted testimony in its entirety, we find that Max-son signed the employment contract to verify his employment with Napasco in case Ashland Chemical Corporation bought Na-pasco. His uncontroverted testimony also reveals that Maxson signed the contract for the above purpose upon request of the president of Napasco.

In view of the request of the president of Napasco that Maxson sign the employment contract to facilitate the change of management if Ashland Chemical Corporation purchased Napasco, this court does not believe that Maxson’s underlying desire to protect his interest when signing the contract constitutes bad faith. Thus, Na-pasco’s argument in this regard lacks merit.

NONCOMPETITION AGREEMENT VS NONSOLICITATION AGREEMENT

Citing the case of John Jay Esthetic Salon, Inc. v. Woods, 377 So.2d 1363 (La.App. 4th Cir.1979), Napasco states that the non-solicitation clause of the contract (Paragraph 12), as distinguished from noncom-petition clauses is enforceable. Napasco is asking this court to draw a distinction between the noncompetition clauses and non-solicitation clauses and hold that R.S. 23:921 is not applicable to the latter.

This court, in the case of Orkin Exterminating Co., Inc. v. Broussard, 346 So.2d 1274 (La.App. 3rd Cir.1977); writ den., 350 So.2d 902 (La.1977), has declined to recognize such a distinction in its application of R.S. 23:921. In Orkin, this court stated as follows:

"... Counsel for Orkin argues that the relief sought herein is not to enjoin Broussard from engaging in the exterminating business, but only seeks to enjoin Broussard from servicing those customers of Orkin whom he was servicing prior to termination of his employment with Or-kin. We can see no distinction in legal principle....”

See also, the case of National Motor Club of Louisiana, Inc. v. Conque, 173 So.2d 238 (La.App. 3rd Cir.1965), cert. den., 175 So.2d 110 (La.1965).

Following the established jurisprudence of this court such a distinction, as argued by Napasco, will not be applied.

We hold that LSA-R.S. 23:921 is applicable and renders the contract in question unenforceable. The trial court judgment will be affirmed.

For the reasons assigned, the judgment of the trial court is affirmed. Plaintiff-Appellant is to pay all costs of this appeal.

AFFIRMED.

      . Napasco does not contend that the exception in the statute for those employers who expend substantial sums for training of employees, etc., applies in this case.

      . “Upon termination of the employment for any cause whatever, the employee agrees for a period of one (1) year after said termination he will not at any place or through medium whatever, either on behalf of himself or another, directly or indirectly, solicit business in the same or kindred or similar line of business as that of the employer from any person or persons who were customers of the employer while the salesman was in its employ or who, as customers, were contacted by the salesman while the salesman was in the service of the employer, the salesman for a period of one (1) year will not either on behalf of himself or any other persons, natural or legal, seek to employ or caused to employ by another person, natural or legal, any person employed by the employer while the salesman was engaged in the service of the employer.”


author: STOKER, Judge.

text:
    Kenneth W. BIRD, Plaintiff-Appellant, v. Richard W. BLACK, Defendant-Appellee.
    No. 82-167.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.
    Gahagan & Gahagan, Fred S. Gahagan, Natchitoches, for plaintiff-appellant.
    Watson, Murchison, Crews, Arthur & Corkern, Ronald E. Corkern, Jr., Natchi-toches, for defendant-appellee.
    Before FORET, CUTRER and STOKER, JJ.
   STOKER, Judge.

This is an action for personal injuries and property damages growing out of a collision between a bicyclist and a motor vehicle. The plaintiff, Keith W. Bird (Bird), was the bicyclist. Richard W. Black (Black) was following Bird driving a 1979 Toyota. The trial court found both parties negligent and rejected all claims. International Indemnity Company, Black’s collision insurer, reconvened for Black’s collision damages but did not appeal from the trial court’s rejection of its subrogation claim. The only appeal is that of the plaintiff, Bird. We affirm.

Bird was riding his bicycle northerly on Williams avenue in Natchitoches, Louisiana, at 3:15 PM on June 15,1979. Bird was being followed by Black who sought to pass Bird. The accident occurred in the left (southbound) lane as Bird attempted to make a left turn. The trial court rejected Bird’s trial testimony to the effect that he gave a left turn signal after having noting Black’s approach from the rear and upon further concluding that it was safe to execute the left turn. Instead, the trial court accepted statements given by Bird prior to trial that he did not see the Black vehicle, he did not know where the Black vehicle came from and did not see it until he was hit.

The trial court also concluded that Black was “traveling at an excessive rate of speed under the prevailing circumstances and that had he been traveling at a lesser speed he could have avoided the collision caused by the negligent acts of Mr. Bird.”

Our review of the record reveals no manifest error in the trial court’s conclusions, and it cannot be said that he was clearly wrong in concluding that Bird and Black were guilty of concurrent negligence which caused the accident.

Appellant Bird urges certain jurisprudence as showing he was not guilty of negligence which barred his recovery. He cites Adams v. Travelers Indemnity Co., 277 So.2d 685 (La.App. 2nd Cir.1973) for the proposition that he could assume Black would comply with the law and that a left turning motorist is not contributorily negligent when he collides with a vehicle attempting to pass within one-hundred feet of an intersection in violation of LSA-R.S. 32:76. The Adams case is distinguishable. In fact, contributory negligence on the part of the plaintiff Adams does not appear to have been an issue in the case. Moreover, the Adams case reiterates the well established rule that the left turning motorist “must ascertain in advance that the turn can be made without endangering normal overtaking or oncoming traffic,” and the “giving of a signal is not the only burden placed on the motorist for he must, in addition, check the rear immediately before the turn is attempted to ascertain whether it can be executed safely.”

Bird also relies on the concurring opinion in Fontenot v. American Fidelity Fire Insurance Co., 386 So.2d 165 (La.App. 3rd Cir.1980). That case involved a motorist who struck a boy on a bicycle riding on a sidewalk at the site of a service station as the motorist attempted to turn right from the highway into the service station premises. The majority in Fontenot held that the accident was caused by the sole fault of the motorist and held that the plaintiff bicyclist was not guilty of contributory negligence.

Our distinguished colleague, Judge Foret, agreed with the result in Fontenot but disagreed with the holding on the contributory negligence issue. Judge Foret took the position that where there is a collision between a motorist and a bicycle, the responsibilities and duties of the bicyclist should be equated to those of a pedestrian as set forth in Baumgartner v. State Farm Mutual Auto. Ins. Co., 356 So.2d 400 (La.1978). Baumgartner abolished the defense of contributory negligence in pedestrian-motorist cases. We do not need at this time to address that issue and the views of our distinguished brother because we do not feel that we are faced with a situation within the ambit of risks contemplated by Baumgartner.

We hold that a person riding on a bicycle in a roadway, using the roadway on the same manner and mode as a motorist, has the same obligations and duties as that of a motorist. This is a matter of statutory provision which has been firmly applied in jurisprudence. LSA-R.S. 32:194; Hanks v. Melancon, 338 So.2d 1215 (La.App. 3rd Cir. 1976) and Ardoin v. State Farm Mutual Automobile Ins. Co., 205 So.2d 632 (La.App. 3rd Cir.1967).

Plaintiff-appellant urges that as stated in Hanks v. Melancon, supra, a bicyclist like a motorist must ascertain whether a left turn may be safely made without “danger from normal overtaking or oncoming traffic.” Appellant further urges that, because of its speed, the Black vehicle was not a normal overtaking vehicle. We do not find the evidence of speed of Black’s vehicle (which is not exceptionally graphic or specific) is convincing that the vehicle was not “normal” in the context in question. The situation was not such as to convince us that Bird was relieved of his duty to make certain he could make his left turn maneuver.

Finally, plaintiff-appellant invokes the doctrine of last clear chance. In this regard Bird failed to bear the burden of proof in establishing the essential elements necessary to bring the doctrine into application. Jackson v. Watson, 360 So.2d 582 (La.App. 4th Cir.1978).

For the foregoing reasons, the judgment of the trial court is affirmed. The costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.

FORET, J., concurs in the result.


text:
    HARTFORD ACCIDENT & INDEMNITY COMPANY, INC., et al., Plaintiffs-Appellants, v. CHAMPION CHEMICALS, INC., et al., Defendants-Appellees.
    No. 82-168.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.

      Jeansonne, Gibbens, Blackwell & Briney, Patrick J. Briney, Lafayette, for plaintiffs-appellants.
    Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Edward C. Abell, Jr., and Arthur Vingiello, Lafayette, for defendants-appellees.
    Before FORET, CUTRER and STOKER, JJ.
   CUTRER, Judge.

This appeal arises from a suit for damages resulting from a fire occurring during services rendered by oil production specialists in an oilfield located near Port Barre, Louisiana.

Wood Services, Inc. (Wood) and its insurer, Hartford Accident & Indemnity Company, Inc. (Hartford), brought suit against Dr. Irwin Parnés (Parnés) and Champion Chemicals, Inc. (Champion), to recover damages arising out of the loss of a pumper truck and an automobile which were destroyed by a fire occurring at a heater-treater located on an oil producing lease owned by Parnés. Parnés filed a reconventional demand against Wood and Hartford for damages sustained by his heater-treater and for the loss of profits. Parnés also filed a third party demand against Champion for these losses. Prior to judgment upon motion of Wood and Hartford, which indicated that a settlement had been reached, the suit against Champion was dismissed.

The trial court rendered judgment dismissing Wood’s and Hartford’s claim against Parnés. Judgment was rendered in favor of Parnés on his reconventional demand against Wood and Hartford awarding Parnés $4,549.38 for damages to the heater-treater and $1,013.16 for Parnés’ loss of profits. Wood and Hartford appeal. We affirm in part and reverse in part.

Parnés, a dentist, was the owner and operator of a producing lease in the Port Barre field. Two wells had been producing on the lease. Shortly before April 26,1974, the day of the fire, one of the wells became “plugged up” and ceased production.

To alleviate the plug problem and to again obtain production, Parnés and his engineer consulted with a sales representative and engineer of Champion, Roy Lyons, about chemically treating the well. It was decided by these parties that a chemical “injection” process was the proper procedure to be used on the well.

This process called for the injection of a certain amount of chemicals, mixed with either diesel or crude oil, to be pumped into the well. After this mixture was pumped into the well, then more diesel or crude oil would be pumped in behind the mixture as a “chaser,” the object being that the chemical mixture would be pumped into the well and out into the producing sand to dissolve the substances that were obstructing the production.

Lyons first suggested that diesel oil be used as a carrier and chaser, but after further discussion with Parnés, it was decided that crude oil would be used as this was readily available at Parnés’ production tanks located in the vicinity of the well.

The injection procedure was to be supervised by Lyons as he was considered a specialist in this process. Lyons went to the well location and spoke to a pumper that attended to the wells for Parnés. The pumper, Roy Woodson, showed Lyons the location of an oil line connection from which the necessary crude oil could be obtained to perform the work.

Lyons contacted Wood, who rendered pumping services for injection processes, and employed Wood to furnish a pumper truck, driver and operator to do the job.

On April 24, 1974, Wood dispatched the pumper truck with Jordan Labbie as driver and Joseph Peltier as operator of the pumping unit. Peltier drove his company car to the location. Upon arrival Lyons showed Peltier the oil line where he was to obtain the crude oil. To obtain the oil, Peltier had Labbie to drive the pumper truck to the location of the oil line opening in order that the pumper truck could be attached to the flow line for the purpose of filling the two 12-barrel truck tanks with crude oil. Peltier went to this area in his company car and parked it near the truck. In order to get the crude oil into the truck tanks, it was necessary to attach a 4" rubber suction hose to the oil line which hose was attached to a centrifugal pump on the truck.

The oil line was located about twelve feet from where the truck was located. The oil line ran parallel to the road. Between the road and the oil line was located a heater-treater. After the 4" suction hose was connected, Peltier laid the hose alongside the heater-treater and connected it to his truck parked on the road.

Peltier then filled the two truck tanks with crude oil and after disconnecting the hose, he proceeded to the well for the injection process. In order to complete the injection it was necessary to haul two or three loads of crude to the well. After filling the truck tanks each time, Peltier and Labbie would disconnect the hose at the truck. This left the suction hose attached to the oil line. The valve at the tank nearby was closed and Peltier propped up the open end of the hose in order to prevent the crude oil in the hose from spilling on the ground. Peltier stated that he propped the hose up against the heater-treater on one occasion.

After Peltier had pumped a small amount of the last load into the well, the pressure began to build and Lyons stopped the injection procedure. It was then decided by Lyons and Peltier that the remaining oil in the truck tanks would be pumped back into the oil line which was connected to the production tank. Lyons left the scene and went to Port Barre.

Peltier and Labbie returned to the flow line, reconnected their suction hose and set the control valves on the pump in order that the centrifugal pump would move the oil out of the truck tanks through the hose and into the flow line. Labbie opened the valve at the production tank nearby in order that the oil could travel into the tank.

Peltier started operating the truck pump from controls located upon the truck near the rear of same. During this pumping procedure, Peltier felt something spray in his face that felt like oil. At that time, Peltier saw flames on the outside of the heater-treater. The flames, fueled by crude oil, spread to the area of the truck and car destroying both vehicles. The heater-treat-er was also damaged.

Hartford, under its insurance coverage with Wood, paid for the loss of the truck and car. Hartford filed this suit as subro-gee of Wood. Wood filed suit for loss of profits due to the loss of use of the truck. Parnés reconvened for damages to the heater-treater and for loss of profits for being deprived of the use of the heater-treater.

The trial court held that the fire and ensuing damages were caused solely by the negligence of Peltier, the employee of Wood, or a defect in the hose furnished by Wood. Judgment was rendered in favor of Parnés and against Wood and Hartford. This appeal followed.

The issues on appeal are:

(1) Whether the trial judge erred in holding Wood and Hartford liable to Dr. Parnés;
(2) If Wood and Hartford are liable, whether profit losses should be awarded to Parnés.

LIABILITY

Wood and Hartford contend that the trial court erred by (1) not recognizing the duty of Parnés to exercise reasonable care for the safety of persons on his premises, and by (2) not exposing such persons to unreasonable risks of injury without warning such persons of the danger.

Martel v. Southern Farm Bur. Cas. Ins. Co., 368 So.2d 1192, 1194 (La.App. 3rd Cir. 1979), states:

“The mere fact that someone is injured while on another's premises does not create a presumption of negligence of the owner. Rousseau v. Deramus [342 So.2d 276], supra; Thomas v. Hanover Insurance Company, 821 So.2d 30 (La.App. 3rd Cir.1975); Walker v. Union Oil Mill, Inc., 360 So.2d 894 (La.App. 3rd Cir.1978). In order to recover for injuries sustained on another’s premises, the injured party has the burden of proving a breach of duty on the part of the owner to exercise reasonable care, and such a burden is met only where the evidence indicates that the defendant’s negligence was the most plausible or likely cause of the occurrence and that no other factor can as reasonably be ascribed as the cause of the accident. Ned v. Hertz Corporation, 356 So.2d 1074 (La.App. 4th Cir.1978), writ denied 359 So.2d 197 (1978); Rousseau v. Deramus, supra.

See, also, Walker v. Union Oil Mill, Inc., 369 So.2d 1043, 1047 (La.1979), which states:

“In determining an owner’s liability under Civil Code Articles 2315 and 2316 the test has been stated to be whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others. Shelton v. Aetna Casualty and Surety Co., 334 So.2d 406 (La.1976). The owner and operator of a facility has the duty of exercising reasonable care for the safety of persons on his premises and the duty of not exposing such persons to unreasonable risks of injury or harm. In determining a particular defendant’s duty consideration should be given to the nature of the facility and the dangers presented by it. In considering a defendant’s duty to a particular person, consideration should be given to the person’s age, maturity, experience, familiarity with the premises and its dangers, and other such factors which might increase or decrease the risk of harm to that person. The duty would be greater to a person of young aere and immature judgment. It would be lesser to a person with experience. knowledge and familiarity with the premises. ” (Emphasis ours.)

Further, we quote from Pagitt Well Service, Inc. v. Sam Broussard, Inc., 293 So.2d 631 (La.App. 3rd Cir.1974), writs den., 295 So.2d 817 (La.1974):

“When confronted with a known hazard, particularly one of extreme proportions, one must exercise a degree of care commensurate with the circumstances. The greater the danger, the greater the degree of care that must be exercised when dealing with that danger. Culpepper v. Leonard Truck Lines, 208 La. 1084, 24 So.2d 148 (1945).’’

To determine the application of these principles we shall examine further the specific facts surrounding the occurrence of this incident.

It is undisputed that the fire and losses were caused when crude oil was allowed to come in contact with the heater-treater and its components that would ignite crude oil.

It is established that a heater-treater is a commonly used mechanism in the oilfield production process. The heater-treater is a tall, cylindrically shaped unit that stands upright and is connected to a tank battery serving producing wells. In this instance, the tanks and heater-treater were serving Parnés’ two wells. As the oil arrives at the tanks, it is put through the heater in order to separate water and other foreign substances from the crude oil.

Located at the bottom of the heater-treater is an automatic gas burner that heats the oil as it comes into the heater. The oil, as it comes into the heater-treater, contains contaminants such as water. As the temperature of the oil increases, the water and other contaminants separate from the oil and drop to the bottom of the heater as it is heavier than the oil. The contaminants are discharged from the heater-treater and the crude oil, without contaminants, is put into the production tank.

The area where the burner and pilot light are located is called the “firebox.” The operation of the burner is controlled by a thermostat. The firebox is enclosed except for a vent that allows air to feed into the firebox. Attached to the firebox enclosure is a vent pipe which runs upward for several feet along the side of the heater-treater. This vent pipe (commonly referred to as a “stack”) allows the fumes from the burner to escape into the atmosphere.

When the heater-treater is operating, the flame of the burner is not readily ascertainable by viewing same. The flame can be seen, however, by looking directly into the firebox. It can also be determined that the heater-treater, is operating by merely feeling of the outside which stays heated to some extent as long as it is operational. There are only two parts of the heater which contain enough heat to ignite crude oil and that is the area of the flame in the firebox and the “stack” which vents it. The evidence shows that other areas of the heater-treater would not ignite crude oil if exposed to it.

Wood specialized in furnishing operators and equipment for performing injection services. In this case, Joseph Peltier was the operator furnished by Wood. Peltier was a man of fourteen years experience in the oilfield, a large portion of which was operating pump trucks for injection purposes. He was a knowledgeable operator. He stated that he was fully aware of the presence of the heater-treater at the pump-site. He knew generally how it operated and its purpose. He had pumped crude oil on many other occasions and was fully aware of the dangerous nature of crude oil if it came in contact with a flame or highly heated object. He was aware that if he allowed crude oil to come in contact with the heater-treater components that were hot, fire would likely result.

Peltier stated that as he started pumping he pumped slowly until he was informed from Labbie that the oil was going into the tank. After this, Peltier says that he “revved” up the pump engine, increasing the pumping pressure on the hose and connections as he discharged the oil. He was standing on the bed of the truck operating the controls when he felt a spray of what felt like oil hit his face. At that time he saw flames on the side of the heater-treat-er. When he was standing on the truck, his face was several feet from the ground which reflects that the spray of oil went fairly high into the air. The crude oil struck the firebox and/or “stack” igniting same. The existence of this spray of oil clearly reflects that the emission of the crude oil was due to a leak in the hose or a faulty connection in the discharge line. Peltier stated that he didn’t know where the spray came from. He could only see a portion of the discharge hose as he operated the controls from the bed of the truck. The rubber hose was destroyed in the fire and thus was not subject to examination.

EXPERTS

Paul Montgomery, a consulting engineer, was of the opinion that the fire was caused by vapors from the crude oil being ignited by the flame in the firebox. John O’Con-nor, another consulting engineer, was of the opinion that the crude oil leaked from either the hose or its connections and ignited as it sprayed upon the heated vent pipe (“stack”) which was extended upward on the outside of the heater-treater. O’Connor stated that his reasons for coming to this conclusion was that Peltier described a spray having hit him in the face while he was operating the controls from the bed of the truck. Peltier then stated that, as he felt the spray, he saw flames up on the heater-treater. The area of the flame described by Peltier is near the “stack.” O’Connor stated that the rubber suction hose should not have been used for discharge due to the pressure exerted in this operation. He stated that the steel pressure pipe should have been used to discharge the crude oil into the oil line, which pipe was available to Peltier.

Applying the principles previously set forth to these facts, we conclude that the heater-treater, as it was normally and customarily used, was not inherently dangerous nor did it create an unreasonable risk of harm, to persons working in its vicinity. The heater-treater only demonstrated danger when crude oil was allowed to come in direct contact with the flame in the firebox or into contact with the “stack.” By adding a spray of crude oil to these areas, the potentiality for fire and damages increased.

Peltier, having knowledge of the existence, purpose and general operation of the heater-treater, was under a duty to exercise a high degree of care in the handling of the crude oil near same. Peltiers familiarity with the operation and knowledge of the risks involved in handling crude oil near a heater-treater, relieves Parnés of the duty to warn Peltier of the dangers of which he was fully aware. The evidence preponderates that Peltier was negligent in the conduct of the discharge operations by allowing the crude oil to spray upon the heater portions of the heater-treater.

Wood and Hartford contend that Parnés was negligent in not equipping the separator with a “flame arrester.” This is a device that can be installed in the firebox which tends to contain the flames of the burner within the firebox and not allow it to extend outside same.

Paul Montgomery testified that, if the heater-treater had been equipped with a flame arrester and the spray of oil went into the firebox through the flame arrester, the fire would not have traveled outside the firebox. John O’Connor stated that he was uncertain as to whether a flame arrester would have retained the fire if crude oil was sprayed directly upon the flame arres-ter. He further pointed out that, from a description of the occurrence by Peltier, the spray of oil hit the “stack” which would ignite same. Thus, the fire would have occurred even though a flame arrester had been present. In view of this evidence, we conclude that the lack of a flame arrester would not be a cause of the fire.

Wood and Hartford also contend that Parnés was negligent in electing to use crude oil as a “chaser” rather than diesel oil. There was testimony that diesel is safer to handle than crude oil. The evidence preponderates that, under the facts presented, this fire would have occurred whether crude oil or diesel oil had been used. This argument has no merit.

The trial judge correctly reasoned that LSA-C.C. art. 2317 was inapplicable to this situation. As we have previously held, this heater-treater, as normally used, did not create an unreasonable risk of harm to persons working in the vicinity.

We conclude that the record fully supports the trial court’s conclusion that this accident was caused solely by the negligence of Peltier by allowing crude oil to come in contact with the heated portions of the heater-treater. Wood and Hartford are liable to Parnés for his damages.

AWARD OF PROFITS

The trial court awarded Parnés $1,013.16 as lost profits in addition to damages for repairs of the heater-treater. The trial court reached this amount by assuming defendant had a profit margin of 25% and further assuming lost production amounted to 769 barrels at $5.27 per barrel. Although there is some evidence upon which to base the price and quantity of defendant’s production, the record contains no evidence relating to defendant’s margin of profit in his oil production operations.

Loss of profit is at best speculative in nature and a great deal of discretion must be given to the trier of fact in its determination. Almerico v. Highlands Ins. Co., 388 So.2d 1176 (La.App. 4th Cir.1980). However, the trier of fact must have some basis for its discretion. The record contains no factual support for this award. We shall reverse the trial court’s decision insofar as it allowed Parnés a loss of profits.

For the reasons assigned, the trial court judgment is amended by deleting the award of Parnés of $1,013.16 as a loss of profits. In all other respects the judgment of the trial court is affirmed. The costs of this appeal are to be paid by plaintiffs-appellants.

AMENDED AND AFFIRMED.