author: LEMMON, Judge. GULOTTA, Judge, GARRISON, Judge,

text:
    Russell SEIFERT v. GENERAL TIRE & RUBBER COMPANY.
    No. 10173.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 4, 1980.
    Rehearing Denied April 18, 1980.
    Giraud, Cusimano & Verderame, Charles A. Verderame, New Orleans, for plaintiff-appellee.
    Christovich & Kearney, John J. Cooper, New Orleans, for defendant-appellant.

      Before SAMUEL, LEMMON, GULOTTA, SCHOTT and GARRISON, JJ.
   LEMMON, Judge.

In this action plaintiff, an employee discharged by defendant employer on November 4, 1976, seeks to recover a bonus he would admittedly have been entitled to under the terms of the company’s Incentive Payment Plan if he had worked through the end of the fiscal year on November 30. Defendant has appealed from a judgment, rendered after a trial on the merits, which awarded the bonus to plaintiff.

At the time of his discharge plaintiff had been employed by defendant for nine years and had been the store manager at defendant’s retail and commercial store in New Orleans for over five years. While there was no written document outlining the overall employment agreement, plaintiff admittedly was not hired for a fixed period of time. However, there was a written document covering the Incentive Payment Plan, which was a bonus plan for key employees. Under the plan these supervisory and administrative employees, who were paid a fixed salary and did not receive commissions on sales as did the salesmen, could earn additional wages based on the particular store’s quota achievement. The plan’s eligibility requirements included the following pertinent provision:

“He (the employee) must, at the time of the Bonus payment, be in the employment of the company or an affiliate thereof. (Note: A customer, dealer or consumer is not considered an affiliate.) The employee is eligible for Bonus payment if he: (1) is retired in conjunction with Company Retirement Program; (2) is in the Armed Forces of the United States under a military leave of absence from the Company or affiliate thereof; or, (3) is on an approved maternity leave of absence from the Company or affiliate thereof.”

Defendant had previously established similar plans, and plaintiff had earned bonuses during four of six previous years. The current incentive plan was effective for the 12 month period ending November 30, 1976.

On Saturday, October 30, 1976 the store did not open for business, because plaintiff did not show up with the key, and three employees waited outside for an hour before finally leaving. Defendant discharged plaintiff five days later and also refused to pay him any bonus, reasoning that he was •not in the company’s employment at the time of the bonus payment.

The trial court instructed the jury that defendant could discharge plaintiff for any reason, but that if the discharge was without fault on plaintiff’s part so that plaintiff was prevented through no fault of his own from meeting the eligibility requirement of the Incentive Payment Plan, he was entitled to his proportionate share of the bonus. This instruction was based on the holding of Morse v. J. Ray McDermott & Co., 344 So.2d 1353 (La.1976) that if an employer agrees to pay a bonus on certain conditions and prevents the employee who is bound to perform the condition from doing so, without fault on the.part of the employee, the condition is considered as fulfilled. See also C.C. art. 2040.

The Morse case involved an employee’s termination for reasons beyond the control of the employee. Since we conclude the record in this case does not support the jury’s apparent finding that plaintiff was discharged without fault on his part, the Morse case is not controlling.

Defendant’s district manager of retail stores, who had been plaintiff’s immediate superior since May 1, 1976, evaluated plaintiff as a capable employee whose performance was declining because he did not devote the required amount of time to management of the store and did not have a proper working relationship with his subordinates. Although the store’s profit record for that fiscal year had increased above the previous year, he stated (without supporting documentary evidence) that the store’s sales, after a great start, had declined monthly during his tenure. He added that he discussed plaintiff’s situation with the regional manager immediately after plaintiff failed to open the store on the last working day in October and fired plaintiff as soon as the regional manager obtained higher approval to do so.

The former district manager stated a similar evaluation, and a salesman in that store described declining morale there, relating an incident in which he had to contact the regional manager in order to get credit for an account for which plaintiff claimed entitlement.

On the other hand, plaintiff contended he was fired without cause at that particular time because the district manager desired to deprive him of his bonus. Pointing out that the store’s sales record was better in most respects in 1976 than in 1975, he admitted considerable problems in 1976, but blamed them on the termination of the office manager’s position (when a complicated computer system was installed without adequate training) and on the service manager’s three-month absence due to illness. He further noted that there were no written complaints about his performance prior to his firing. While he admitted he was responsible to have the store opened daily, he emphasized he had failed only on the one occasion. He also admitted, however, he had caused substantial damage to a company truck in 1975 while using it to haul bricks in the construction of his home, although use of vehicles for personal missions was strictly prohibited.

On this record the jury perhaps accepted plaintiff’s factual version of the various occurrences when the versions conflicted, but even if all of the factual evidence favorable to plaintiff is accepted, the jury erred as a matter of law in its apparent determination that plaintiff was discharged without just cause attributable to plaintiff.

Either plaintiff’s use of the truck in deliberate disobedience of company rules or his failure to open the store on October 30 was a clearly sufficient ground for discharge. The latter incident, which occurred just before the termination, was obviously the most important.

The store was to be opened until noon, the normal Saturday schedule. Plaintiff did not return to New Orleans until about 2:00 p. m., and he immediately called his district manager in Memphis.

Plaintiff explained in testimony before the jury that he and a female companion he had met at a party that Friday night had driven out of town in her car and had a flat tire several hours before dawn. Because the spare was also flat, he had to roll the tire three or four miles to a service station and had to wait several hours for someone to repair the tire. He did not inquire if there wás a telephone at the station, because none of the three employees who had store keys was scheduled to work that day, and he did not have the telephone numbers of the employees who were scheduled to work.

Even if plaintiff’s version of the occurrence is accepted, there is simply no justification for his failure to make some effort to have the store opened. The flat tire occurred only about 50 miles from New Orleans. Plaintiff did not seek a telephone, either at the service station or at other places in the area. His excuse that he did not know the telephone numbers of the employees scheduled to work ignores the obvious possibility of obtaining the numbers of these employees (or of other employees who had keys and could have opened the store, though not scheduled to work) through directory assistance. Numerous other reasonable courses of action come to mind, but the one thing obvious from the overall circumstances is that a responsible supervisory employee desirous of furthering his employer’s interest would at least have attempted to do something. Plaintiff did nothing, and his immediate firing cannot reasonably be said to be without just cause.

Accordingly, the judgment of the trial court is reversed, and it is now ordered that plaintiff’s suit be dismissed at his cost.

REVERSED AND RENDERED.

GULOTTA and GARRISON, JJ., dissent and assign reasons.

GULOTTA, Judge,

dissenting:

I am of the opinion that the record supports an apparent finding of the jury that the discharge was without fault on plaintiff’s part. The jury was unanimous in its finding in favor of plaintiff.

A reasonable conclusion can be reached that the discharge was based upon an isolated instance of failure by plaintiff to open the store on time. Perhaps, the jury believed plaintiff’s explanation for this failure. Perhaps, the jury believed this isolated failure by this nine-year employee was seized upon by defendant to deprive Seifert of his earned bonus. Perhaps, the jury believed plaintiff’s explanation of the low morale of the employee. Perhaps, they were impressed with the increased profits of the store.

It is significant that plaintiff was discharged on November 4, 1976, twenty-six days before the November 30, 1976 date, which was the termination of the fiscal year. Under the incentive payment plan for an employee to be entitled to the bonus he was required to be employed at the termination of the fiscal year, November 30th.

Admittedly, with the exception of the termination date, the above observations are speculative. We are unable to determine what was in the minds of the jurors. Nevertheless, we cannot substitute our conclusions for the reasonable conclusions of the fact finder.' I would affirm the unanimous jury verdict.

GARRISON, Judge,

dissenting:

Based upon the evidence presented, I see no manifest error in the conclusion of the court below. Accordingly, I would uphold, as rendered, the judgment in favor of the plaintiff. Canter v. Koehring, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

      . At the end of that fiscal year the store which plaintiff had managed was eligible for a bonus of $10,205.00, of which $7,143.50 would have been his share, if he was eligible. The average bonus that year for defendant’s 220 stores was $6,500.00.

      . Further distinction is that the Morse case involved a forfeiture of earned 'compensation payable over an extended period, and the court held it was against public policy to require an employee to continue in employment into the future as a condition for recovery of remuneration for services already performed.
      In the present case the fiscal year for which the bonus was to be awarded had not ended at the time of plaintiffs discharge. Nevertheless, because of the result we reach on the issue of discharge without fault, we need not decide whether this other distinction would require a different result from that reached in the Morse case.


source: Caselaw Access Project

author: REDMANN, Judge. PER CURIAM.

license: Public Domain

text:
    Luke BONURA, Jr. v. COMMERCIAL UNION INSURANCE COMPANY et al.
    No. 10366.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 7, 1980.
    Rehearing Denied April 8, 1980.

      Frank J. D’Amico, New Orleans, Vincent J. Glorioso, Jr., Kierr, Gainsburgh, Benjamin, Fallon & Lewis, New Orleans, for plaintiff.
    Wood Brown, III, Montgomery, Barnett, Brown & Read, New Orleans, for Dixie Dredge Co.
    James H. Drury, Drury, Lozes & Curry, New Orleans, for Commercial Union Ins. Co.
    Before SAMUEL, REDMANN and SCHOTT, JJ.
   REDMANN, Judge.

From a judgment for $179,000 for longshoreman Luke Bonura, Jr. against Dixie Dredge Company and the insurer of longshoreman superintendent Edward C. Cook in solido, Dixie alone appeals.

Cook’s insurer had third-partied Dixie for contribution but the judgment was silent on that demand. Counsel advise us, at oral argument, that Cook’s insurer has now paid the judgment under an agreement with Bonura that Bonura will defend against this appeal and will refund half if he defeats this appeal and collects half from Dixie. We therefore treat this appeal as one in which Cook’s insurer pursues Bonura’s claim, as by subrogation, to obtain contribution. The real question is thus whether Dixie is liable in contribution to Cook’s insurer, even if both are liable to Bonura. We conclude that Dixie is not liable in contribution towards Cook’s insurer; to the contrary, Dixie would be entitled to full indemnity from Cook’s insurer. For that reason the question of whether Dixie is liable to Bonura need not be decided; instead we amend to expressly deny contribution to-Cook’s insurer.

Dixie built a steél hydraulic dredge in sections, which it shipped by rail from St. Louis to New Orleans for transshipment to an oceangoing vessel. The dredge’s 46-ton center section, 12' wide by 57' long, was not covered by an integral steel deck across its top as other sections were. It had steel decking for perhaps 20 feet at one end, at a level perhaps four feet below the top of the coamings. Much of the dredge’s gear, piping and wiring was located in the undecked remainder, and Dixie erected a temporary cover to protect it from the elements and from intruders. Dixie constructed a wall from near the end of the decking to the top of the coamings with 4' X 8' sheets of quarter-inch plywood, supported by wooden 2" X 4" bracing erected on four-foot centers. Dixie then covered the undecked remainder with five rows of three sheets each of similar plywood sheets across the 12-foot width at the top of the coamings. These sheets were supported by two-by-fours crossing the 12-foot width at four-foot intervals. Each crosswise two-by-four was in turn supported at its ends.by the coamings and at its center by one vertical two-by-four about 12 feet tall. There appears to have been no lengthwise bracing; eight-foot slats of plywood were attached on top of the plywood sheets along their eight-foot sides more as a cover for the crack between the sheets than as a support for them.

At the request of Cook’s employer, Texla Stevedores, Inc., Dixie sent its foreman, Charles Medley, to New Orleans to instruct Texla on how to rig the center section for lifting because of its unique lack of steel decking. It was Cook, with one or two others, to whom Medley gave instructions and a sketch illustrating the desired rigging. Dixie contemplated that the longshoremen should affix the rigging (already attached to the crane’s block) at the two ends of this center section while standing outside the section at both ends (and on the steel decking at the one end at which the cables had to pass through the coaming), rather than atop the plywood cover, and that a chain fall should attach around the suction pipe, accessible through a hatch (although apparently one sheet of plywood would have had to be removed to allow the chain fall access to the pipe).

Cook removed one corner sheet and three center sheets of plywood from atop the dredge section (presumably to enable the chain fall to reach the suction pipe). The thinness of the plywood and its lack of support (except for crosswise two-by-fours, four feet apart) therefore had to be visible to Cook. Yet instead of spanning the 12-foot width with suitable boards or beams across the coamings, he caused two or three short two-by-sixes (or -eights or -tens) to be placed across the four-foot-wide opening he had created between sheets of quarter-inch plywood, unsupported on its sides, and placed the 300-pound chain fall on those boards. In addition to that weight, the four IV2" steel cables attached to the ends of the dredge section also lay atop the plywood covering, awaiting attachment to the crane’s block. Three longshoremen atop the plywood with the chain fall and cable are shown in a photograph taken from the vessel onto which the dredge was to be loaded. When moments later the accident occurred, Cook and one more longshoreman had joined the other three and the plywood gave way.

Under these circumstances we conclude that Cook or his insurer cannot, even if Bonura could, accuse Dixie of fault in Bonura’s injury on the theory that Dixie created the false appearance of a sturdy plywood floor upon which Dixie should have expected longshoremen to stand and to load their gear.. Whatever appearance of strength may have been created by the plywood covering was dispelled, at least as to Cook, when he removed four sheets of the plywood.

Texla and its superintendent Cook owed to Dixie the proper and workmanlike rigging of the dredge section for lifting. If it be true, as testified by two longshoremen, that rigging could not be accomplished without standing atop the dredge section, Cook owed it to his men to provide a safe place to stand and he knew or should have known that quarter-inch plywood braced crosswise at four-foot intervals was not a safe place for five men to stand with heavy equipment. If it can be said that Dixie also owed to the longshoremen the duty of providing a safe place to stand because Dixie should have known that they had to stand atop the dredge section, it cannot be said that Dixie owed that duty to Cook and Texla after they knew of the flimsiness of the plywood covering. To the contrary, Cook and Texla owed that duty to Dixie as part of their overall contractual duty to move the dredge section from rail car to ship’s hold in a proper and workmanlike manner.

Cook breached his duty to the longshoremen and to Dixie by placing only two or three boards only six or eight feet long across the four-foot opening between unsupported edges of quarter-inch plywood, rather than a sufficient number of boards 12 or more feet long across the entire 12-foot top of the dredge section, and by ordering the longshoremen atop the self-evidently too-weak plywood.

The judgment appealed from is therefore amended so as to dismiss the third-party demand of Cook’s insurer for contribution from Dixie, so that the judgment appealed from may not be executed against Dixie in Cook’s insurer’s behalf; and this appeal is otherwise dismissed as moot because plaintiff personally no longer has a real interest in the judgment.

ON APPLICATION FOR REHEARING

PER CURIAM.

Attachments to the application for rehearing show that Cook’s insurer did not pay the judgment in full but merely settled for its principal amount without the legal interest from judicial demand that the judgment provided. The settlement obliged Bonura to pay back half of principal alone if he defeated Dixie’s appeal and collected half of the judgment from Dixie. Thus Bonura does appear to retain a real interest in the judgment', in that the legal interest he might collect from Dixie would belong to him.

On the principles of Williams v. Marionneaux, 1960, 240 La. 713, 124 So.2d 919, and of La.C.C. 2106, 2205 and 3061, however, Bonura cannot now collect from Dixie because Bonura, by accepting the payment “in full satisfaction of the judgment” as against Cook’s insurer, has defeated Dixie’s right to indemnity against Cook’s insurer.

Rehearing is therefore denied.

      . If the affair for which the debt has been contracted in solido, concern only one of the co-obligors in solido, that one is liable for the whole debt towards the other codebtors, who, with regard to him, are considered only as his securities.

      . The remission or even conventional discharge granted to a principal debtor, discharges the sureties.
      That granted to the sureties does not discharge the principal debtor.
      That granted to one of the sureties does not discharge the others.

      . The surety is discharged when by the act of the creditor, the subrogation to his rights, mortgages and privileges can no longer be operated in favor of the surety.

      . Plaintiff’s application recites that Dixie had third-partied Cook’s insurer but we find no such pleading. We should have framed our decree differently were such a pleading present.


author: REDMANN, Judge.

text:
    Mrs. Margaret KIBODEAUX et al. v. JEFFERSON PARISH SCHOOL BOARD.
    No. 10549.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 7, 1980.
    Rehearing Denied April 18, 1980.

      John R. Rarick, St. Francisville, for plaintiffs.
    Jack A. Grant, Gretna, for defendant.
    Before REDMANN, LEMMON and BOU-TALL, JJ.
   REDMANN, Judge.

Margaret Kibodeaux, a tenured special education teacher, was suspended from employment by the Jefferson School Board because she refused to confer with the special education department director and the executive assistant superintendent except in the presence of parents of her handicapped students, a condition to which those superiors would not accede. She does not dispute her refusal to confer except on her terms.

Mrs. Kibodeaux had philosophical objections to federal “Individualized Education Programs,” not then adopted by the Louisiana Legislature or by the School Board but ordered implemented by the Board’s administrative officials. Those objections could have been aired at the conferences that her supervisors ordered her to attend. Perhaps her experience qualifies her better than her supervisors, the Board and the Congress to make certain judgments respecting special education, and perhaps she could have done a service to all students by persuading her superiors to alter those programs or their administration. But that is not the question here.

The only question here is whether a school board can suspend a special education teacher who admittedly refuses to confer, except in the presence of the parents of her students, about a special education program with the director of the special education department and the executive assistant superintendent for personnel and administrative affairs. Mrs. Kibodeaux does not put forth any philosophical justification for refusing to talk alone with her supervisors about her work. Her thus unjustified position is, in effect, that one at the bottom of a chain of command should be allowed to refuse the reasonable terms of his or her superiors and dictate to them the terms upon which he or she will discuss his or her work.

Appellant has not given us any grounds upon which to reverse the judgment appealed from.

Affirmed.

      . We do note our concern over the Board’s apparent use at its hearing of one lawyer as a judge and his partner in private practice as the Board’s lawyer. Because there is no dispute on the material facts, however, this questionable _ employment cannot affect the outcome of this matter.
      other points argued, such as Mrs. Kibo-deaux’s freedom of speech and her right to limit administrative conferences to regular class hours, are not really at issue.


author: LEMMON, Judge.

text:
    NATIONAL OIL SERVICE OF LOUISIANA, INC. v. Ronnie David BROWN, Bernard Roseman and John Fernandez.
    No. 9740.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 7, 1980.
    Rehearing Denied April 18, 1980.

      MeGlinchey, Stafford, Mintz & Hoffman, Donald A. Mintz and Leopold Z. Sher, New Orleans, for plaintiff-appellant.
    Monroe & Lemann, Jerry A. Brown and A. Justin Ourso, III, New Orleans, for defendants-appellees.
    Before SAMUEL, LEMMON and SCHOTT, JJ.
   LEMMON, Judge.

Plaintiff has appealed from a judgment denying its request to preliminarily enjoin three former employees from conducting an identical business in plaintiff’s business area and to restrain them from using plaintiff’s equipment, records and customer lists, from soliciting plaintiff’s customers and employees,' and from making derogatory statements about plaintiff’s business. The issues on appeal involve alleged breaches by the employees of express and implied contractual obligations relating to their commencement of a competitive business before and after the termination of their employment.

I

Plaintiff corporation was chartered in November, 1975, and it immediately began its waste oil operations in Louisiana. The corporation was owned by Blair family, which also owned several other firms that collected waste oil throughout the southeastern states and processed the oil for resale. Defendant Fernandez, who had worked for the Blairs’ Florida company for several years, was named initial manager of the Louisiana operation, and defendant Roseman was employed in October, 1977 as Louisiana sales manager.

Fernandez had been employed with the Florida company under a written contract that contained a non-competition agreement and other prohibitory conditions relating to the employee’s activities after termination of employment. Jerrold Blair, plaintiff’s president, testified that he and Fernandez verbally agreed to the same terms of employment with the Louisiana corporation, except for a salary increase, and that when Roseman was hired as sales manager, he and Roseman reviewed the contract of the Tampa sales manager and agreed to the same terms, except for a higher salary. Defendant Brown was a truck driver who admittedly was not employed under a written contract (although Blair testified Fernandez had been instructed to have all drivers execute written contracts). Defendants were three of the nine employees in the Louisiana operation.

Plaintiff’s operation consisted essentially of collecting waste oil from area businesses by use of trucks with regularly assigned routes, Customers with large amounts of oil for collection were paid by the gallon and were signed to exclusive sales contracts, while waste oil was collected without payment to smaller customers who considered the service as a benefit. New customers were continuously solicited, and customer lists were maintained indicating frequency of collection. These customer lists also formed the basis for daily route sheets which were prepared for the drivers who were paid according to the amount of oil collected. Organization and systematic efficiency were stressed in the operations.

On May 19, 1978, without prior notice, defendants- sent Blair a letter of resignation, effective immediately. Blair testified: He immediately flew to New Orleans and discovered that Fernandez had fired his most experienced driver and, along with Roseman, had pirated two other drivers and had begun an identical waste oil operation in the same area under the name of Southern Oil Service. He learned upon further investigation that defendants had copied and taken his customer lists, his route system records and many of his customer contracts; had taken pumps, tanks, pipes, hoses and fittings belonging to the company; had not performed required maintenance work on the company trucks , which were in serious disrepair; had discontinued signing major customers to contracts for exclusive sale of waste oil; had collected oil from some customers, processed and sold it without remitting the sales proceeds to the company (all of the waste oil collected in normal operations was transported to Florida and processed there); had told many customers that National Oil was out of business or that National Oil’s name had been changed to Southern; and had neglected to collect oil from other customers for a long period until Southern began business fand then picked up the accumulated oil from these customers for Southern’s account. He reported the matter to the police, who arrested defendants and recovered many of the missing items from them. He did rehire the discharged driver and one of the two that had been lured away by defendants, but he was unable to reestablish the business immediately because of the difficulty of reconstructing the missing customer and route lists. He then filed this injunction proceeding to enjoin defendants from operating the new business, soliciting plaintiff’s customers or using plaintiff’s records, procedures and trade secrets. The petition also reserved plaintiff’s right to seek damages.

In their testimony defendants admitted they had begun planning the new business about April 1, but did not notify Blair; that they had removed some of plaintiff’s records (pertaining to plaintiff’s best customers, according to Blair) “just to call up possibly later”; that they had solicited all of plaintiff’s experienced drivers; that they had taken 6,000 gallons of oil belonging to plaintiff, sold it, and deposited the proceeds to Southern’s account, and that they had another 4,500 gallons of plaintiff’s oil in their possession; that they stopped signing larger customers to contracts because the customer didn’t want to be bothered (although they had identical form contracts printed for Southern’s use); that they had taken some tanks, pipes, fittings and hoses which they considered abandoned; and that Fernandez had prepared the following list when they decided to start their own business:

“1) Take Contracts
2) Make duplicate Contracts
3) get Pocket Registers
4) Remove important phone numbers from rolodex
5) write phone numbers on master sheets
6) take naptha
7) test tubes and equip.
8) pull Business Cards
9) oil pipes for trucks”

One of plaintiff’s customers testified that he had called for a pick-up several times before May 19, because his tank was overflowing, and that defendant Brown finally collected his oil on May 23, telling him that Southern had bought plaintiff’s business.

II

Plaintiff first contends defendants were prohibited by enforceable contract provisions from engaging- in competitive business in the area, or alternatively, in the event the non-competition provisions are unenforceable under R.S. 23:921, from using the employer’s customer lists.

Generally, in the absence of a contrary agreement, an employee is free to compete with his former employer. In Louisiana non-competition agreements are disfavored and are deemed contrary to public policy, except under circumstances outlined in R.S. 23:921 relating to the employer’s expenditures of substantial amounts in training the employee or in advertising the business. Under such circumstances a voluntary non-competition agreement is permitted for limited periods in limited areas.

In the present case, however, under the evidence most favorable to the prevailing party, the existence of a non-competition agreement was not proved. ' The only written and signed contract in evidence is one between Fernandez and a corporation other than plaintiff, and plaintiff’s president’s testimony as to verbal agreements on the pertinent terms was contradicted by Fernandez and Roseman. Inasmuch as there is no proved non-competition agreement, defendants were free to compete against plaintiff upon terminating their employment.

Even in the absence of a specific agreement prohibiting certain methods of competition, however, unfair methods of competition are unlawful in Louisiana. R.S. 51:1405. What constitutes unfair competition is a matter to be decided in each individual case and involves a balancing between the right of the employee to individual freedom on one hand and the right of the employer to honest and fair competition and to protection of business assets and property in the nature of trade secrets on the other hand. See generally Annotation — Former Employer’s Duty, in Absence of Express Contract, Not to Solicit Former Employer’s Customers or Otherwise Use His Knowledge of Customer Lists Acquired in Earlier Employment, 28 A.L.R.3d 7 (1969).

A former employee who enters business in competition with his former employer necessarily utilizes the experience he acquired and the skills he developed while in his former employment. While the employer may by contract obtain limited protection against competition from former employees, by law he may be entitled to protection against wrongful appropriation and use by former employees of things specially developed by the employer in his business, such as lists of customers (particularly in route sales) whose regular patronage has been acquired by the employer’s advertising, solicitation and organized effort. Considerations as to the type of protection to be afforded to the employer in a specific case include the manner in which and the purpose for which customer lists are compiled; the conduct and motivation of the employee before and after termination of the employment; the manner in which the customers are contacted after the termination and the nature of the-representations made to the customer by the former employee; and the existence of a scheme to take over all or a substantial part of the former employer’s business, or of an intent to injure the former employer’s business.

Ill

The present case involved a business dependent upon personal contact. Although the names and addresses of the customers were generally available to the public and to others in the same business, the customers listed were those developed through the contacts and organized efforts of all of plaintiff’s employees, and the lists were compiled not only to record the names of customers, but also to provide the drivers with. a routine route for the purpose of efficient and systematic collection.

Moreover, in establishing their own new business, defendants exhibited a clear intent to decimate plaintiff’s existing business. They copied and then destroyed plaintiff’s contracts and records involving its most important customers; they converted a considerable amount of plaintiff’s equipment to their own use and neglected the care of other equipment; they set up plaintiff’s customers for pirating by first neglecting to collect oil and then making misrepresentations about plaintiff’s going out of business; and while using plaintiff’s equipment and facilities, they processed and sold oil which had been collected for plaintiff’s account and retained the funds for their own account (until arrested, when they then offered to make restitution). In short defendants schemed to virtually close down plaintiff’s business while starting their own, using the same customers, the same key employees, much of plaintiff’s equipment and some of the capital obtained through the sale of plaintiff’s oil.

One could hardly imagine more unfair methods of competition than were used in this case. The key consideration in this case is not one of individual freedom, but rather is one of basic business honesty. Pri- or to termination, defendants attempted to divert plaintiff’s business for their own benefit, removed equipment and records, stole collected oil, and left the business in complete disarray. At time of termination they left without notice and pirated experienced employees. And after termination, they made misrepresentations and untrue statements to customers of the former employer. While perhaps no single factor would alone be considered unfair competition, the evidence (viewed in a light most favorable to the prevailing party) established a course of calculated misconduct over a considerable period of time, and plaintiff should have been granted some preliminary injunctive relief in order to prevent defendants from profiting from their misdeeds (in addition to their reserved claim for damages).

Plaintiff sought preliminary injunctive relief to prohibit defendants from:

(a) operating the business known as Southern Oil Service;
(b) soliciting plaintiff’s customers;
(c) using plaintiff’s confidential and privileged trade information and trade secrets;
(d) making defamatory and derogatory statements to other persons about the integrity of plaintiff and its president, employees, and agents;
(e) using equipment taken from plaintiff without its consent and permission; and
(f) enticing and hiring away plaintiff’s employees.

Plaintiff was entitled to injunctive relief for Items (c) and (e) since the use of these items constitutes an invasion of plaintiff’s property rights and their use would constitute unfair competition and unfair trade practices on the part of defendants. However, we affirm the refusal of injunctive relief as regards the other items.

The relief requested an Item (a) discussed above was properly denied for failure to prove a non-competition agreement.

As to the relief requested in Item (b), the evidence established that anyone who has waste oil is a potential customer of plaintiff and that plaintiff over the years has done business with hundreds of such customers. Furthermore, previous decisions have allowed former employees in soliciting customers to rely on their memory and on the general information they acquired while they were employed by plaintiff. See, for example, Gulf Toy House, Inc. v. Bertrand, 306 So.2d 361 (La.App. 3rd Cir.1975) and Theatre Time Clock, Inc. v. Steward, 276 F.Supp. 593 (E.D.La. New Orleans Div. 1967). While the trial court perhaps could have granted limited relief under the circumstances of this case, such as prohibiting use of written lists and documents taken from plaintiff, discussion of such relief at this point in time would be academic.

As to Item (d), plaintiff apparently desired to prevent misrepresentations as to its business status, rather than defamation. We need not reach the difficult question of enjoining free speech which causes damages, which is not really an issue here, and any relief as to misrepresentations by defendants is now more appropriately addressed to plaintiff’s claim for damages.

As to Item (f), parties who are associated in a business or enterprise may agree that upon termination they will not hire the employees of the former joint business or enterprise, and such a contract is not in violation of R.S. 23:921. John Jay Esthetic Salon v. Woods, 377 So.2d 1363 (La.App. 4th Cir.1979). In the absence of such a contract, however, no basis generally exists for an injunction against the exercise of the basic freedom of association which is inherent in the hiring of employees and the taking of a job with an employer.

In the final analysis plaintiff is for the most part relegated to its claim for damages sustained as a result of the unfair methods of competition by which it was victimized. Moreover, the matter before the court is merely a rule for preliminary injunction, and the trial on the merits of the final injunction is not before us.

Accordingly, the judgment appealed from is affirmed in part and reversed in part and the trial judge is ordered to preliminarily enjoin the defendants from:

(1) using the confidential and privileged trade information and trade secrets of National Oil Services of Louisiana, Inc., and
(2) using equipment allegedly taken from National Oil Services of Louisiana, Inc. without its consent and permission.

This injunction is to be issued, upon the trial judge’s setting and plaintiff’s furnishing a bond in accordance with C.C.P. art. 3610. The case is remanded to the trial court for further proceedings, and all costs are taxed against defendants.

AFFIRMED IN PART, REVERSED AND RENDERED IN PART, AND REMANDED.

      . Fernandez admitted he prepared the list, but was later advised by his attorney not to take anything from plaintiff.

      . Other types of agreements have been held enforceable and not subject to the prohibition of R.S. 23:921. These include agreements not to solicit the employer’s customers, not to use the employer’s customer lists, and not to disclose the employer’s trade secrets. See cases reviewed in Duncan, Agreements Not to Compete, 33 La.L.Rev. 94 (1972).


author: BOUTALL, Judge.

text:
    BRIAN INVESTMENTS, LTD. v. ASCANTIA, INC.
    No. 10522.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 7, 1980.
    Rehearing Denied April 18, 1980.
    Martzell, Montero & Lamothe, by John R. Martzell, Janine Syll Dingleman, New Orleans, for Brian Investments, Ltd., appellant.
    William S. Moss, Jr., Robert B. Allen, Vinson & Elkins, Houston, Tex., for As.can-tia, Inc., appellee.
    Stephen B. Murray, Murray, Murray, Ellis, Braden & Landry, New Orleans, Victor A. Sachse, III, Claude F. Reynaud, Jr., .Breazeale, Sachse & Wilson, Baton Rouge, for appellee.

      Before REDMANN, LEMMON and BOU-TALL, JJ.
   BOUTALL, Judge.

Brian Investments, Ltd. sued Ascantia, Inc. for a recission of a sale of some 32,600 acres of land on the basis of lesion beyond moiety. In defense, Ascantia, Inc. filed a motion for summary judgment which was maintained by the trial court, dismissing Brian’s suit. Brian appeals. We affirm.

The issues raised turn mainly upon the effect of several documents and agreements entered into between the parties, and the effects and obligations arising therein. The facts which led to the making of these agreements are not in dispute.

On May 7, 1976, Brian Investments, Ltd. agreed to buy from Champion Realty Corporation some 32,600 acres of land at a price of $125.00 per acre cash with a down payment of $100,000. The agreement was amended to extend the deadline of purchase until October 1, 1976 and the sale to be on credit with $500,000 payable cash and a promissory note for $3,450,000. Because of difficulty in obtaining the necessary financing, Brian Investments, Ltd. entered into an agreement with several individuals, Daniel E. Zelenka, Jack J. Reynolds and John Pol-laro on October 1, 1976 whereby Brian would furnish $100,000 of the cash purchase price, Zelenka and Reynolds would furnish $400,000 and Pollaro had furnished $44,000 in cash for expenses in order for Brian to consummate the purchase from Champion Realty. The document provided that the land thus acquired would be transferred to a new corporation to be formed by the parties known as Ascantia, Inc. to be owned on the basis of one half by Brian and the other half equally by Zelenka and Reynolds. This document contains numerous other provisions for the financing and development of the property which are not necessary to set out in detail here, except that there was to be an effort made to raise a minimum of $7,500,000 in loans in order to accomplish their purposes. Pursuant to the agreement, 5 days later on October 6, 1976, Brian sold to Ascantia the land for a consideration of $100.00 and the assumptions of the obligations in the October 1 sale as well as all of the obligations itemized in the October 1st agreement between them. The total consideration amounted to $6,344,100.

It is this sale of October 6th that is the subject of the suit for recission brought by Brian a year and several months later, January 26, 1978. The suit alleges that there was a reduction in purchase price of approximately $1,000,000 by virtue of cancellation of some of the indebtedness assumed, and that the actual reasonable market value of the land was not less than $24,450,000. Brian contends that the market value of the land was thus approximately four times the value of the consideration received and prayed for the annulment of the sale on grounds of lesion beyond moiety or alternatively that Ascantia be required to pay to Brian the difference between the consideration already paid and the reasonable market value of the land.

In defense Ascantia has filed the subject motion for summary judgment contending that the course of events show that the document is not really a sale between these parties which is a subject to attack for lesion and additionally that the subsequent transactions between the parties preclude Brian from bringing such a suit.

In furtherance of the efforts to achieve the financing for development of the property, the parties, along with a number of other persons, had confected a stock purchase agreement on the 31st day of October, 1977 by which all of the shareholders of Ascantia, including Brian, Zelenka and Reynolds as sellers, entered into a stock purchase agreement with Iman Investments, N. V., as buyer. The consideration for the stock sale was to be $1,000 in cash and a' loan to Ascantia from Iman of $7,267,926.24, said loan to be secured by the pledge of a $10,000,000 collateral mortgage note which was in turn secured by a mortgage on the 32,600 acres. That agreement imposed a number of obligations and warranties upon the parties to this suit, and these are controlling of the issue here. Despite its representations and warranties in this agreement, plaintiff Brian chose to bring this suit some three months later. Brian’s position seems to be that the court should rule that this document has no effect upon it nor impose any obligation upon it. By this device it would reap all of the benefits of those arrangements, while seeking to destroy the very foundation upon which the arrangements were made.

It is apparent that the relationships between these parties must be considered in light of the entire series of transactions that occurred between them and by reference to the totality of all of the documents, not merely by isolating one event, that is, the act of sale of October 6, 1976, and adjudicating the rights of the parties in that isolation. The act of October 6th must necessarily be considered along with the agreement of October 1st which gave it being and caused it to be effected. That agreement shows that the October 6th sale does not stand alone, and that if there exists any issues of contention between Brian and Ascantia, the basis of such a suit must rest upon the agreement of October 1 and not upon the purported sale of October 6. The sale, as well as the corporate existence of Ascantia, Inc., simply carried out the terms of the October 1 agreement.

Additionally, all of these prior documents are bound together by the provisions of the stock purchase agreement of October 31, 1977. In that agreement, Brian, as well as the other shareholders warranted that the Iman Investments would receive the stock free and clear of all liens, incumbrances or other adverse claims and that there were no claims of any sort against their ownership of the stock; that Ascantia had no liabilities or obligations except those that were disclosed in the document and there were no claims or any legal basis for claims that might result in or cause any material adverse change in the financial condition or operations of the business of Ascantia; that Ascantia had good valid and marketable title in and to all of the assets and properties which it purported to own and was subject to no other incumbrance, charge or lien against the property; that there was no litigation or proceedings pending or threatened against Ascantia at law or in equity, nor any knowledge of any developments or threatened developments that would be materially adverse to the business or properties of Ascantia; that they have made full disclosure of all of the facts necessary to the statements made by them. The agreement provides in Section 3.02 for a release of Ascantia in the following language:

“Section 3.02. Release of Company.
“Effective on and after the Closing each Seller hereby releases, acquits and forever discharges Ascantia of and from any and every claim, debt, demand, liability, action, cause of action and other obligation which such Seller has or may have against, or to which such seller may be entitled to performance from, Ascantia by virtue of or arising with respect to any agreement, transaction, relationship, dealing or other circumstances which have occurred or occur at any time prior to the Closing, ****’’

To the argument that Ascantia is not a party to the agreement, we say that the very purpose of the agreement was to induce Iman to loan the over $7,000,000 to Ascantia on the real estate it owned and to cause Ascantia to place a mortgage in the amount of $10,000,000 on its property. As-cantia appeared as a party and made the following representations contained in Section 8.07:

“Section 8.07 Joinder by Ascantia. As-cantia appears and executes this Agreement for the purpose of taking cognizance of all of its terms and conditions, including, without limitation, the representations and warranties made herein, and further agrees that if any representation or warranty by Ascantia or the Sellers set forth herein or in the Loan Agreement is materially misrepresented, or if any undertaking or covenant of Sellers or Ascantia under this Agreement or the Loan Agreement is breached, any such material misrepresentation or breach shall entitle the holder of the Note, at its option, to declare said Note forthwith due and payable, without presentment, demand, protest or other notice of any kind. Ascantia hereby waives any preemptive or other rights it may have under Article XI of its Articles of Incorporation, or otherwise, to purchase the Stock to be sold to Buyer hereunder.”

. We are of the opinion that the terms of that agreement act as a bar to prevent Brian from bringing a suit to rescind the October 6, 1976 sale. As the trial judge remarked in his Reasons for Judgment:

“To allow Brian the shareholder of A's-cantia stock to enter into a Stock Purchase Agreement and make representations, warranties and releases to Iman to induce it to loan money to Ascantia and to induce it to mortgage 32,600 acres to secure the Imán loan and then to allow Brian the vendor of land to Ascantia by action of rescission to negate, contravene, contradict and nullify the covenants made by Brian the Shareholder when such action would be prejudicial to Iman’s security for its loan and prejudicial to Ascantia’s ownership of the land would be to countenance an ultra vires act by Brian, and, at the very least it would be unconscionable. ****’’

The stock purchase agreement is clearly a waiver and release of any claims that Brian may have had against Ascantia arising out of the October 1 agreement, which, of course, controls the terms of the October 6 sale and caused it to come into being. The absurd result of Brian’s position is equally unconscionable when considered in relation to the parties to the October 1 agreement, who furnished the money to make the acquisition of the land possible.

Again we refer to the release of Ascantia in Sec. 3.02 quoted above. We believe the language contained therein is clear and plain. Legal agreements have the effect, of law upon the parties, and the courts are bound to give legal effects to such contracts according to the intent of the parties as determined by these clear words. Civil Code Article 1945.

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

AFFIRMED.


author: BOUTALL, Judge. GULOTTA, Judge, GARRISON, Judge,

text:
    Police Officer Ronald J. CANNATELLA and Police Officer Howard P. Robertson v. CITY CIVIL SERVICE COMMISSION OF the CITY OF NEW ORLEANS.
    No. 10961.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 22, 1980.
    Writ Refused May 9, 1980.

      Law Offices, Sidney M. Bach, Gerald D. Wasserman, New Orleans, for Officers Can-natella and Robertson, plaintiffs-appellees.
    Ralph D. Dwyer, Jr., Many, LoCoco & Dwyer, New Orleans, for City Civil Service Commission of the City of- New Orleans, defendant-appellants.
    Before SAMUEL, BOUTALL and GARRISON, JJ.
   BOUTALL, Judge.

Two police officers of the City of New Orleans brought a petition for injunctive and/or declaratory relief against the Civil Service Commission complaining of unfair scoring on a promotional examination ftir the rank of Police Sergeant, and praying that the regulation for computing scores be changed and that they be ordered to be promoted. The trial court rendered judgment in their favor, and the- Commission has appealed.

Ronald J. Cannatella and Howard P. Robertson were initially enrolled in the Police Department of the City of New Orleans under a program which permitted persons under 20 years old to be enrolled as a “police cadet”. This program was initiated with a view to enabling the police to recruit younger members of the community and interest them in a police career prior to the established age requirement of 20 years for enrollment as a regular policeman. Both successfully completed their service as police cadets and were enrolled as patrolmen at the age of 20 years. Thereafter they continued to serve for a number of years and took a promotional examination in November, 1976 to qualify on the promotional list for advancement to the rank of Police Sergeant. The applicants were ranked according to a weighted formula which considered both the score made on the test as well as a score for length of time in grade. Robertson received a score of 73.54 and was ranked 138 on the promotion list, Cannatel-la received a score of 74.55 and was placed 115th. The basis of their suit is that neither was granted any credit for time in service as a police cadet, and that had such credit been granted under the formula used in computing the score, that each would have been advanced up the promotional list, and would have been by now promoted to sergeant.

The first problem that is presented is the nature of the relief sought and granted in the trial court’s judgment. The petition sought both injunctive and declaratory relief. The judgment rendered decreed “that a permanent writ of injunction issue herein, as prayed for, according to law, and that the declaratory relief prayed for herein be granted.” On its face, that judgment is contrary to the requirements' of Code of Civil Procedure Article 3605 which requires an injunction order to “describe in reasonable detail, and not by mere reference to the petition or other documents, the act or acts sought to be restrained.” See for comparison Allied Navigation Company, Inc. v. International Organization of Masters, Mates and Pilots, 272 So.2d 23 (La.App. 4th Cir. 1973) and Van Vrancken v. Roy, 296 So.2d 460 (La.App. 4th Cir. 1974). The judgment appealed is a final injunction, but it is ineffective because of its insufficiency in describing the act sought to be restrained. If the appealed judgment was composed entirely of injunctive relief, we would remand this matter back to the trial court for further proceedings. However, we still have before us the issue of the declaratory relief, and we are informed in argument that the effective date of the promotional list will soon expire.

Petitioners prayed for the following declaratory relief: To declare legally void and unreasonable the rule whereby the Commission refuses to give the police officers any credit for time and service as police cadets, for rating on the promotional examination, to recognize them as qualified for promotion to the rank of police sergeant; and order them to be promoted retroactive to the time they would have been qualified for and promoted to the rank of police sergeant.

Although the trial judge in his reasons for judgment and statements from the bench does not indicate that his decree would encompass such far ranging relief, nevertheless, his decree, is controlling of the relief granted.

The primary issue is the legality and fairness of the requirements of the promotional examination. The Louisiana Constitution of 1974 in Article 10 sets up a system of Civil Service generally, and Sections 7 and 10 grant the City Civil Service Commission the authority to make and adopt rules for regulating employment and promotion and for the method of certifying persons eligible for appointment and promotion. In the City of New Orleans, Rule 5 § 2.4 imposes upon the Director of the Department of Civil Service the duty to fix the requirements and qualifications. The general rule is that the reasonable discretion of administrative boards will not be set aside in the absence of proof of an abuse of such discretion. Toye Bros. Yellow Cab Company v. City of New Orleans, 264 So.2d 768 (La.App. 4th Cir. 1972.) The courts should not interfere with the bona fide judgment of such a board based upon substantial evidence. State ex rel. Rathe v. Jefferson Parish School Board, 206 La. 317, 19 So.2d 153 (La.1943); Celestine v. Lafayette Parish School Board, 284 So.2d 650 (La.App. 3rd Cir. 1973). The decision cannot be considered arbitrary unless the setting was made without reasons or reference to relevant considerations. Arbitrariness is the absence of a rationale basis. Graffeo v. City of New Orleans, 351 So.2d 1311 (La.App. 4th Cir. 1977). We are of the opinion that the trial judge erred in not applying these basic rules, but instead substituted his opinion for that of the Civil Service Commission and its Director.

In its announcement relating to the promotional examination for police sergeant, the Director, approved by the Commission, made certain experience rating requirements. The announcement set minimum requirements which were three years of service in the police class and stated the police classes were: Police Officer, Police Woman and Desk Sergeant. The Commission then offered a further explanation of the rating of experience by granting credits up to a maximum of 10 years with a weight of two points for the class of Desk Sergeant and a weight of one point for each year as a police patrolman, police officer or policewoman, to be computed on a weighted basis according to a formula. No credit was granted for service as a police cadet, and it is this point which these two officers, who were formerly cadets, contest.

The evidence shows that the class of police cadet was started in 1967 as a method of. attracting young men in their late teens, between the ages of 17 and 20 to serve as cadets until they could achieve the age of 20, at which time they would be appointed as police patrolmen provided they had kept up with the qualifications of the program. These young men were to enter a training class in which each would be an employee and receive instructions, orientations and training to prepare nim for work as a police patrolman, both by on the job training in various offices and bureaus and by entering into the college curriculum at Loyola University leading to a degree in criminology. It was recognized at that time that this new class of police cadet would be different from that of police patrolman (to which he could be promoted after his 20th birthday) in that the cadet did not receive a police commission, that he could not carry a gun, nor did he have the arrest powers of a regular policeman. A cadet’s work assignment consisted partly of on the job training and partly of pursuing the college curriculum. There is evidence in the record which shows that in certain of these job functions, the cadet did substantially the same duties as did a police patrolman, however, this showing is made only in several instances, and not in the overall duties generally engaged in by policemen.

The trial judge found that the duties of a cadet were approximately the same as the duties and responsibilities of a police recruit or probationary officer. The evidence shows however that the classification of police recruits was not begun until after the promotional announcement had been promulgated, and after the classification of police cadet had been dropped and the program terminated. During the existence of the cadet program, there was no classification of police known as police recruit, but these were simply police officers who upon being commissioned were given training in the police academy. The evidence offered by the defendant Commission shows that there was a rational ■ consideration of the establishment of these police classes and the requirements for each. This evidence is not directly disputed, it being contended only that the cadet did similar duties in practice. It is this juxtaposition of the evidence that leads us to conclude that the decision of the trial court is a substitution of his judgment for that of the Commission.

Accordingly, we are of the opinion that the judgment appealed is in error and we reverse it. The remaining issues as to the ordering of these officers’ retroactive appointment as desk sergeant necessarily fall with our determination that we see no arbitrary classification by the Civil Service Commission. Nevertheless, we feel constrained to point out that there is no evidence in the record which would show how the other candidates would fare under the new credits sought to be granted by the trial court, nor could it be guaranteed that these plaintiffs would have been appointed. See Blake v. Giarrusso, 263 So.2d 392 (La.App. 4th Cir. 1972).

The judgment appealed from is reversed and there is now judgment in favor of defendants, dismissing plaintiffs’ demands •at their cost.

REVERSED AND RENDERED.

GULOTTA, J., concurring with CHE-HARDY, J., joining.

GARRISON, J., dissenting.

GULOTTA, Judge,

concurring.

I concur.

Although I am not in agreement with the conclusion reached by the Civil Service Commission that cadets should not be given credit, I cannot say that the action by the Commission is unreasonable, arbitrary or capricious. The record does show a minimal degree of difference between a cadet on the one hand, and a recruit or patrolman on the other. A cadet was enlisted at the age of 18 years and was sent to a university for the purpose of pursuing a criminology degree. While at the university apparently, he was assigned to various departments for the purpose of gaining on the job training and experience. He was not permitted to carry a gun; he had no authority to make arrests; and, was assigned to these departments for in training educational purposes. Although he was paid less salary than a recruit or patrolman was paid, he did get a Bachelor of Arts degree in criminology.'

A recruit, on the other hand, was re* quired to be 20 years of age, did not pursue a university program in criminology, received a higher pay, attended the police academy, where after completing a training program, became a patrolman. The record is not clear as to whether or not he carried a firearm, however, it appears that after he completed the required firearm training he was permitted to carry a firearm (since he had attained the age of 20 years), although he had not become a patrolman.

Because of the minimal differences between a recruit and a cadet, I cannot say the action of the Civil Service Commission was arbitrary, capricious or unreasonable.

GARRISON, Judge,

dissenting and assigning reasons.

I dissent from the majority’s reversal of the judgment of the trial court.

The issue before us concerns the application of standards by reviewing bodies. With regard to the City Civil Service Commission, an administrative body, its governing standard with regard to evaluating cases which come before it for decision— with regard to the promulgation of its policies and with regard to its subsequent actions — is that it act reasonably, which is to say not arbitrarily nor capriciously.

On the other hand, the governing standard of this Court of Appeals — with regard to a district court case which comes before it for review — is represented by the test as to whether or not the court below did or did not commit manifest error. Cantor v. Koehring, Co., 283 So.2d 716 (La., 1973); Arceneaux v. Domingue, 365 So.2d 1330 (La., 1978).

The precise question before this court, then, was whether or not the trial judge below committed manifest error in his judgment that the administrative agency— whose hearing it reviewed — ácted in a manner (to quote from Judge Connolly’s judgment) which was: “arbitrarily and capricious, unreasonable and discriminatory. ” (Emphasis added.)

While these respective standards — ours for the review of the trial court's decision and the judge’s for the review of the administrative agency — may appear to be essentially parallel, they are not, nevertheless, identical standards. This may be emphasized by reversing — for the sake of argument — the evaluative standards of the trial court and the administrative body. It was not, for example, our precise task simply to determine whether or not the judge acted capriciously or arbitrarily any more than was it his precise task to determine whether or not the Civil Service Commission had committed manifest error.

It is respectfully submitted that whatever standard the majority applied to its review of the City Civil Service Commission’s actions, it was not that of manifest error. More specifically, to employ the phrase of our mandate in the Arceneaux case, there was no basis for the majority’s conclusion that Judge Connolly’s finding of fact was “clearly wrong.” (Emphasis supplied.) The trial court’s Reasons for Judgment (which I adopt by reference and make a part hereof) when considered against the background of the record, make it clear that in his recitation of the law, his interpretation of the facts and his application of the law to the facts — while some may disagree with his conclusion even as others agree — there is no sound basis for concluding that he was clearly wrong with regard to his conclusion. Therefore, in my judgment, our mandate required that we not disturb his factual finding with regard to the declaratory judgment sought by plaintiff.

I do not disagree with the majority’s denial of injunctive relief, for the reasons stated in its opinion, but I would affirm the trial court’s declaratory judgment.

And, in further accord with that conclusion, I would grant the retroactive benefits prayed for by petitioners and prevented by the Civil Service Commission, including any promotion earned, any back pay which additionally would have been earned and any other benefits which would have been acquired by plaintiffs were my view to represent the majority.

APPENDIX A

Civil District Court for the Parish of Orleans

State of Louisiana

No. 79-6514 Division J Docket No. 5

Police Officer Ronald J. Cannatella and Police Officer Howard P. Robertson

vs

City Civil Service Commission of The City of New Orleans

REASONS FOR JUDGMENT

This matter was heard on May 11, 1979. Plaintiffs petitioned the Court for injunc-tive and/or declaratory relief regarding the refusal of the defendant, City Civil Service Commission to allow the plaintiff police officers any credit for their time-in-service while in the employ of the City of New Orleans Police Department as police cadets. Plaintiffs contend that, but for the defendant, Commission’s refusal to grant them credit for “time-in-service” within the Police Department during their employ as police cadets, plaintiffs would not have been passed over for promotion by others who had actually less time than they as police employees in the City of New Orleans Police Department.

The City of New Orleans Civil Service Commission is the duly authorized body to promulgate rules and regulations for the orderly administration of the City Civil Service Department, including the New Orleans Police Department.

It is a basic principle of law that all rules and policies of any administrative body must be reasonable, i. e., not arbitrary and capricious.

The “policy” of not allowing any credit for time served as a Police Cadet does not meet the basic standards of reasonableness. The testimony adduced at the trial on the merits indicates that although' Police Cadets were not licensed to carry firearms, they were in all other respects police officers, both in their appearance and dress, and their assignments and responsibilities. This is not to say they were full-fledged Police Patrolmen. Their scope and characterizations were the same as Police Recruits and other Police Trainees who did receive credit for time-in-service for purposes of the Police Sergeant Examination.

Even though the “policy” was allegedly not based on Age — the only distinction between a Police Recruit and a Cadet was age, that is, a Recruit was recruited at age 20 years, and a Cadet was allowed to enter the Department at the completion of high school (17-18-19 years of age).

It is noted that at Age 20 years, the Police Cadet was neither given additional physical, mental nor psychological tests and was administratively promoted to Police Patrolman upon reaching 20 years of age.

The testimony supports the contention that Police Cadets did substantially the same work and duties of other probationary police officers, such as Police Recruits. Recruits were given full credit for time served as probationary police officers. It would necessarily follow that Police Cadets should be recognized as a class of Police Officer and receive similar credits for time-in-service for the “Sergeant’s Examination”. 40% of the total grade on this examination is calculated on time-in-service. This is an important consideration. Therefore, time served as a Police Cadet could conceivably make a substantial difference in a police officer’s ranking on the Sergeant’s list.

The failure of the Civil Service Commission to grant credit for time-in-service had the effect of denying the full benefits of this career oriented program, which had for its purpose the recruitment and integration of young police officers who could not ordinarily qualify for police service, because of lack of age requirement, into the Department of Police.

The testimony reflects that Police Cadets were given full recognition for purposes of Police Pension and Tenure, whereas the Police Cadets were denied any recognition of time-in-service for purposes of the “Sergeant’s Examination”. This policy has the effect of arbitrarily and capriciously denying Police Cadets the same rights and seniority enjoyed by other Police Officers; and in the Court’s opinion there is no reasonable basis for this distinction, insofar as the difference between a Police Cadet’s responsibilities and duties and that of a Police Recruit or other probationary police officer is negligible.

The Court should refrain and is mandated from precipitously substituting its decision for that of a duly authorized Commission. However, the Court cannot condone a policy which is, in addition to being arbitrary and capricious, unreasonable and discriminatory in its application to those' people who were actively recruited as Police Cadets and who are required to take promotional examinations, where time-in-service is an important factor, in order to further their “career” as a member of the New Orleans Police Department.

/s/ George C. Connolly. Jr.

JUDGE

New Orleans, La.

May 14, 1979

State of Louisiana

Civil District Court for the Parish of Orleans

No. 79-6514 Division “J” D.ocket #5

Police Officer Ronald J. Cannatella and Police Officer Howard P. Robertson

vs

City Civil Service Commission of the City of New Orleans

JUDGMENT

This cause came on this day for trial on petition for injunctive relief filed May 2, 1979.

Present: Sidney M. Bach, attorney for plaintiff

Ralph D. Dwyer, attorney for defendant

When, after hearing the pleadings, evidence and stipulation by and between counsel and for the written reasons to be filed and made part of the record;

IT IS ORDERED, ADJUDGED AND DECREED that a permanent writ of injunction issue herein, ás prayed for, according to law, and that the declaratory relief prayed for herein be granted.

JUDGMENT READ, RENDERED AND SIGNED IN OPEN COURT MAY 11, 1979

/s/ George C. Connolly. Jr.

JUDGE

      . See Appendix A.

      . It should be noted that this case is essentially sui generis, in the sense that the New Orleans Police Department no longer has “cadets.” The point, of course, is that the issue in this case, in any event, would remain one confined to this sole case and does not constitute one from which any “ripple” effect', broadening out into the Department, should be anticipated.


author: MARVIN, Judge.

text:
    Sylvia Tate LANGHAM, Plaintiff-Appellee, v. Thomas Franklin LANGHAM, Defendant-Appellant.
    No. 14058.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 25, 1980.
    En banc. Rehearing Denied April 3, 1980.

      Nelson, Hammons & Johnson by John L. Hammons, Shreveport, for defendant-appellant.
    James E. Franklin, Jr., Shreveport, for plaintiff-appellee.
    Before PRICE, MARVIN, JONES and McClendon, jj.
   MARVIN, Judge.

The husband appeals, contending the monthly alimony pendente lite award is excessive. We agree- and reduce the $800 award to $500.

The wife’s affidavit lists monthly living expenses totaling $1,800. Her net salary is $800 per month. Some of her expenses are duplicates of what the husband lists in his affidavit as his monthly installment obligations. These include:

Her car note $260

Miscellaneous expenses (such as monthly payments to department stores) 140

Total $400 •

The trial court’s award of $800 per month, with the wife’s net salary, affords her $1,600 per month, or % of her claimed expenses. If the $400 duplication is deducted, her claimed expenses total only $1,400 per month. Using the lower court’s proportion, the wife should be entitled to % of $1,400, or $1,250 per month. An award of $500 results in the wife having a net spendable income of almost $1,300 per month and achieves a comparable proportionate result as reached below. Of course, it is presumed that the husband is primarily obligated for the expenses which we have considered as duplicate listings.

The wife is entitled to be maintained in the lifestyle which she enjoyed prior to the separation. The 1979 amendment to CC Art. 148, in response to Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979), does not change the husband’s obligation for alimony pendente lite. Kellogg v. Kellogg, 375 So.2d 200 (La.App. 2d Cir. 1979). Ordinarily, we do not disturb alimony pendente lite determinations made by the trial court, but here there was an obvious duplication of some items on the expense lists of the litigants.

Under these circumstances, with the benefit of factual conflicts being afforded the wife, she is nonetheless entitled to at least $1,250 per month in spendable income. Accordingly, the alimony pendente lite is amended to reduce the monthly award from $800 to $500, which will achieve the result.

As amended, judgment below is AFFIRMED. Cost is assessed one-half to appellant and one-half to appellee.

PER CURIAM DENYING REHEARING

No suspensive appeal lies from a judgment awarding alimony. CCP 3943. Even though that judgment may be amended on appeal, its effect continues until the appellate court judgment becomes final. Tisby v. Tisby, 382 So.2d 1053 (La.App.2d Cir. 1980); Frederic v. Frederic, 302 So.2d 903 (La.1974); Bruner v. Bruner, 373 So.2d 971 (La.App. 2d Cir., 1979).

Applications for rehearing are denied.


author: DOMENGEAUX, Judge.

text:
    James Presley BERNARD et al., Plaintiffs-Appellants, v. MARATHON OIL COMPANY et al., Defendants-Appellees.
    No. 7475.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 1980.
    Writ Refused May 9, 1980.
    Edwards, Stefanski & Barousse, Homer Ed Barousse, Jr., Crowley* Deshotels & Deshotels, O. H. Deshotels, Jr., Kaplan, for plaintiffs-appellants.
    Plauche, Hartley, Lapeyre & Ottinger, Patrick S. Ottinger, Lafayette, and Burton B. Bossley, Jr., Houston, Tex., for defendants-appellees.
    Before DOMENGEAUX, FORET and SWIFT, JJ.
   DOMENGEAUX, Judge.

This is a suit by the heirs of Andrew Bernard against Marathon Oil Company, et al, to have an oil, gas, and mineral lease affecting a tract of land in Vermilion Parish, Louisiana, declared terminated.

The chronology of the important facts, which have been stipulated to by the parties, is as follows:

On January 16, 1961, Andrew Bernard granted to the Ohio Oil Company an oil, gas, and mineral lease affecting an eighty (80) acre tract of land in Vermilion Parish, Louisiana. (A rough, unsealed sketch of the 80 acre tract is furnished solely to aid the reader in visualizing the manner in which the property is affected by the lease and the units discussed below.) Plaintiffs, as heirs of Andrew Bernard, are the present lessors under this lease, and defendant Marathon Oil Company, as the successor to the Ohio Oil Company, is the present lessee under this lease.

On March 19,1962, by Order No. 367-4 of the state Department of Conservation, effective April 1, 1962, the Cristellaria No. 6 Sand Unit was created. The S. Hebert Well served as the unit well. This unit contained ' 9.9067 acres of the 80 acres leased. (See sketch, Tracts A and B).

By Department of Conservation Order No. 367-A-3 effective April 1, 1962, The Siphonina Davisi No. 1 Sand was unitized and included 1.4063 acres of the leased property included in the above mentioned Cristellaria unit (Tract A). The Siphonina Davisi No. 1 Sand Unit has produced continuously since the effective date of its creation on April 1, 1962, to date, and royalties have been continuously paid to petitioners to the date of trial.

On April 1, 1962, the Ohio Oil Company released all acreage covered by the lease lying outside of the Cristellaria No. 6 Sand Unit (Tract C). This release was executed in accordance with covenants contained in the lease. Thus, only 9.9067 acres of the original 80 acre tract remained held under the lease (Tracts A and B).

In September, 1974, Hurricane Carmen threatened the coastal parishes of Louisiana, and, in particular, posed a threat to the safety and security of the wells situated in the Theall Field Area, Vermilion Parish, Louisiana, the site of the wells discussed herein. As a precautionary measure, the S. Hebert Well (the unit well for the Cristella-ria No. 6 Sand Unit) was shut-in on September 8, 1974. After the threat of Hurricane Carmen had dissipated, attempts were promptly made to restore this well to production. Due to excessive water production the well would not flow, A service contractor then conducted swabbing operations in a further attempt to restore production, but to no avail.

On May 1,1975, The Siphonina Davisi No. 3 Sand Unit was created by Department of Conservation Order No. 367-D-l. This unit included all of the 9.9067 acres of the Bernard property still held under lease by Marathon and included in the Cristellaria No. 6 Sand Unit (Tracts A and B). The unit well for this unit was the Goldking Well and has produced continuously as a unit well from May 1, 1975, to the date of the trial.

The S. Hebert Well, the unit well for the Cristellaria No. 6 Sand Unit, was finally restored to production in December of 1976 as a result of increase in tubing pressure which accumulated over a long period of time. Production royalties attributable to this well have been paid to plaintiffs from December 21, 1976, to the time of trial.

Plaintiffs now seek to have the lease can-celled as to the 8.5004 acres contained within both the Cristellaria No. 6 Sand Unit and the Siphonina Davisi No. 3 Sand Unit (Tract B only). Plaintiffs contend that the lease should be cancelled because of any one of three reasons: (1) The S. Hebert Well was shut-in for a period in excess of sixty (60) days before production was resumed; (2) defendants failed to pay shut-in royalties; and (3) defendants were required under the lease to release the acreage lying within the Cristellaria No. 6 Sand Unit when the S. Hebert Well was not restored to production within sixty (60) days after the cessation thereof.

Providing reasons with which we agree, the trial court disposed of plaintiffs’ contentions in the following manner:

“First, plaintiffs assert that the lease should be cancelled because the S. Hebert Well was shut-in in September of 1974 and did not resume production until December of 1976. The 8.5004 acre tract which was in no other unit (at that time) was therefore without production from September, 1974, (when the S. Hebert Well was shut-in) until May 1, 1975, when the Goldk-ing unit (Siphonina Davisi No. 3) became effective. As a result, plaintiffs contend, the lease as to this acreage should be terminated because of defendants’ failure to rework and resume production of the . [S. Hebert] unit well within sixty (60) days after the shutting-in of the well.

Plaintiffs’ argument is primarily based upon the following portion of the lease:

‘. . . If, after the primary term and after the discovery of oil, gas or other minerals in paying quantities, the production thereof should cease from any cause, this lease shall terminate unless the Lessee resumes or restores production, or commences additional reworking or mining operations within sixty (60) days thereafter and continues such operations with diligence without more than sixty (60) days elapsing from the cessation of work on one well and the commencement of reworking operations or operation for drilling of another unit until such production is restored.’

It is the opinion of this Court that this provision of the lease is not applicable in this situation. As noted above, the well for The Siphonina Davisi No. 1 Sand (the southernmost part of the leased tract, containing 1.4063 acres) has produced continuously since April, 1962, to the present. After the primary term of an oil, gas and mineral lease and unless the lease contains a provision to the contrary (i. e., a “Pugh Clause”) [], production from the leased premises or lands pooled therewith serves to maintain the entire lease in effect. Hunter Co. v. Shell Oil Company, [211 La. 893], 31 So.2d 10 (La.1947); LeBlanc v. Danciger Oil & Refining Co., [218 La. 463], 49 So.2d 855 (La.1950). As a result, the production from The Siphonina Davisi No. 1 unit well served to maintain the rest of the lease in effect (i. e., The Siphonina Davisi No. 3 Sand, the 8.5004 acre tract [which was also included in the Cristellaria No. 6 Sand Unit]).”

2.

“Plaintiffs next contend that the lease should be cancelled because of defendants’ failure to pay shut-in royalties. Although the Goldking Well for The Siphoni-na Davisi No. 3 produced as a unit well from May 1, 1975, the defendant, Marathon Oil, did not begin taking its production from the well until April 1, 1976. The delay was caused by the necessity of laying a pipeline from The Goldking Well to a gathering point; Plaintiffs contend that as a practical matter, . . this well was . shut-in during this period of time, and that defendant Marathon therefore was contractually obliged to pay to plaintiffs’ shut-in royalties.

Plaintiffs further contend that The S. Hebert Well was shut-in from September of 1974, until December of 1976, and that defendant Marathon was therefore obliged to pay shut-in royalties to plaintiffs.

In considering this contention the following provisions of the lease are pertinent: Habendum Clause:

‘This lease shall be for a term of One (1) Year from the date hereof (called “primary term”) and so long thereafter as oil, gas or some other mineral is being produced from the land or from land pooled therewith, or drilling operations are conducted, as hereinafter provided for; all subject to the following conditions and agreements:’
Paragraph 2:
‘Drilling or reworking operations on or production of oil, gas, sulphur or other minerals from/and included in such pooled unit shall have the effect of continuing this lease in force and effect áfter the primary term as to all of the land covered hereby (including any portion of said land not included in said unit) whether or not such operations were on or such production was from land covered hereby.’

As authority for this proposition [that shut-in royalties are due] plaintiffs rely upon the case of Nordon [Nordan]-Lawton Oil & Gas Corporation of Texas v. Preston J. Miller, 272 F.Supp. 125 (W.D.La., 1967). In that case, the Court held that although there was actual production attributable to a mineral lease, defendant nevertheless had the obligation to pay shut-in royalties where there was another well capable of producing in paying quantities shut-in on the leased property.

However, that case is not applicable to the present case. In the Nordon [Nordan]-Lawton case, the lease in question contained a provision that obliged the lessee to pay shut-in royalties in the event any well was shut-in, even if there was actual production attributable to the leased property. The lease under consideration in the present case contains no such provision.

It is the opinion of this Court that where there is actual production attributable to a mineral lease, there is no additional obligation to tender shut-in royalties in the event a second well capable of producing in paying quantities is shut-in on the leased premises. Where there is actual production in paying quantities, the necessity for constructive production does not exist. Bennett v. Sinclair Oil & Gas Company, 275 F.Supp. 886 (W.D.La., 1967).

Thus, even if this Court were to find that either the S. Hebert or the Goldking Well were shut-in, there still remained no obligation on the part of defendant Marathon to pay shut-in royalties to plaintiffs because there was actual production attributable to the leased premises (Siphonina Davisi No. 1 Sand Unit Well).”

3.

“Finally, plaintiffs contend that the lease should be cancelled because the S. Hebert well was not restored to production within sixty (60) days after the cessation thereof, (thereby terminating the lease) and that a release of the acreage lying within this unit (Siphonina Davisi No. 3 Sand Unit) should therefore have been granted within 120 days.

Plaintiffs rely upon the following provisions of the lease to substantiate this position:

‘Notwithstanding anything to the contrary herein it is agreed between Lessor and Lessee as follows: That if by January 16, 1962, all or a part of the leased premises is not being held by unit operations (or by production), this lease may at the option of the Lessee, be continued in force and effect beyond said date by payments to Lessor in the amount of $333.33 per month, the first such payment being due on said date, and at the option of the Lessee, subsequent payments on the 16th day of each month thereafter until all or a part of leased premises has been included in a unit and being held by unit operations (or production) but in no event shall this lease be so continued in force and effect by said monthly payments beyond July 16, 1962.
In the event a portion, but not all, of the above described land is placed in a Unit or Units, Lessee agrees to file for record a release covering that portion of the land outside the unit or units, within 120 days after approval of such unit or units by the Commissioner of Conservation of the State of Louisiana.’

Plaintiffs contend that these provisions evidence an intent of the parties' that no portion of the land shall be held without actual production, and that as a result, the leased acreage within The Siphonina Davisi No. 3 Sand Unit ( . . . [which acreage also lay within] the Cristellaria No. 6 Sand Unit) should have been released within 120 days after the S. Hebert well discontinued production. Plaintiffs therefore contend that these provisions were to have a continuing application.

These provisions were complied with when, on April 1, 1962, Ohio Oil Company released all acreage, lying outside of the Cristellaria No. 6 Sand Unit. It is the opinion of this Court that these provisions were to serve as a one time release requirement; that is, the release provision was to remain operative only until July 16, 1962.”

We find that the above opinion of the trial court ably disposes of the plaintiffs’ contentions and we adopt it as our own. With respect to the plaintiffs’ last contention, we add that the lease calls for a release of all land outside the unit or units. There is no proof that the 8.5004 acres in litigation (Tract B) was ever outside a unit. As discussed in Footnote 1, supra, although the unit well for the Cristellaria No. 6 Sand Unit was shut-in, nothing in the record indicates that the Order creating the unit was ever dissolved. Absent proof to the contrary, therefore, we must conclude that the 8.5004 acre tract was at all times within a unit created by the state Department of Conservation, thereby rendering inapplicable the release clause of the lease.

DECREE

For the above and foregoing reasons, the judgment of the District Court is affirmed. All costs are assessed against plaintiffs-appellants.

AFFIRMED.

      . The District Court was under the impression that the Siphonina Davisi No. 3 Sand Unit was created to replace the Cristellaria No. 6 Sand Unit. However, the record shows that the Si-phonina Davisi No. 3 Sand Unit was originally created on April 1, 1962, by Department of Conservation Order No. 367-D. Order No. 367-D-l, issued on May 1, 1975, simultaneously dissolved the unit created by Order No. 367-D and created anew a revised unit for the Siphonina Davisi No. 3 Sand which included the 9.9067 acres still held by Marathon (Tracts A and B). No mention is made of Cristellaria No. 6 in Order No. 367-D-l and nothing else in the record suggests that Cristellaria No. 6 has been dissolved.

      . Footnote by the Court of Appeal. As noted by then Judge Tate in Fremaux v. Buie, 212 So.2d 148 (La.App. 3rd Cir. 1968), the “clause is named after its creator, the late Lawrence G. Pugh, Sr., a distinguished attorney of Crowley, Louisiana. Its purpose is to avoid the consequences of the holding of Louisiana mineral law, see Hunter Co. v. Shell Oil Co., 211 La. 893, 31 So.2d 10 [1947] and following, that production from a unit including a portion of a leased tract will maintain the lease in force as to all the lands covered by the lease.” (Footnote 1 at page 149).


author: GARRISON, Judge.

text:
    Henry LeBOYD et al. v. Wilbert JENKINS.
    No. 10388.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 11, 1980.
    Rehearing Denied April 18, 1980.

      Gordon Hackman, Boutte, for plaintiffs-appellants.
    Melvin C. Zeno, Marrero, for defendant-appellee.
    Before BOUTALL, GARRISON and CHEHARDY, JJ.
   GARRISON, Judge.

Plaintiff appeals the dismissal of his lawsuit against his former teacher for injuries allegedly inflicted through corporal punishment. The trial judge held that plaintiff had “failed to carry the. burden of proof.” We affirm, finding that plaintiff failed to prove defendant’s action was either excessive or unreasonable.

The incident made the basis of this litigation occurred on April 7, 1964, at which time Hilton LeBoyd was ten years old and a student at the Pecan Grove School in St. Charles Parish. On that date Hilton was one of a group of students to whom defendant, a teacher at the school, administered a “paddling” by giving each one three or four “licks” on the hand with a rubber strap. Plaintiff alleges that he sustained a broken thumb, a sprained hand, and contusions, and had to be taken to the hospital for treatment. His father ultimately filed suit against Jenkins, the teacher, but the case was not brought to trial until May 1978, a fourteen-year lapse.

There is no state law which expressly either permits or forbids corporal punishment of a student by a teacher. (See R.S. 17:416.1[A], enacted since the incident here.) Litigation over school discipline has been rather sparse in Louisiana. Most frequently the issue of a teacher’s right to administer corporal punishment has been side-stepped since the courts repeatedly found that, whether or not it was permitted, the punishment administered was excessive. See Houeye v. St. Helena Parish School Board, 223 La. 966, 67 So.2d 553 (1953); Johnson v. Horace Mann Mutual Insurance Co., 241 So.2d 588 (La.App. 2nd Cir. 1970); Frank v. Orleans Parish School Board, 195 So.2d 451 (La.App. 4th Cir. 1967), writ refused, 250 La. 635, 197 So.2d 653.

Most recently, however, the Third Circuit, in a well-reasoned and articulate opinion, held that corporal punishment reasonable in degree, administered by a teacher to a pupil for disciplinary reasons, is permitted in Louisiana. Roy v. Continental Insurance Co., 313 So.2d 349 (La.App. 3rd Cir. 1975), writ refused, La., 318 So.2d 47. We agree with reasoning of the Roy case. Accordingly, the only determination to be made from the record before us is whether this particular defendant’s action was excessive or unreasonable in light of the particular facts of this case.

With some conflict in the testimony, the evidence indicates Hilton was a student in Jenkin’s physical education class. On the day of the incident, Jenkins told the entire class, which consisted entirely of boys, to line up because another teacher had told him they were making noise while leaving class the previous day and also that day while he was away from the classroom. Jenkins instructed the students to hold their hands up, palms out, and he went down the line giving each in turn three or four licks with a rubber strap. The strap was made of flexible rubber, approximately 3/i6 of an inch thick, one and one-half inches wide and one to two feet long. Hilton testified:

“When [Jenkins] said we was making noise the day before,. I tried to tell him that I was not in school the day before and he lined us up and hit us. The first lick I got was on the finger and I put out my other hand to take another lick and he said ‘No, put out your other hand,’ and as a result, I kept nugging my hand forward and when I went to the doctor, I had a bad bruised wrist and a broken thumb.”

It is undisputed that none of the other boys so disciplined complained of any injury. There was also some evidence indicating Hilton may have hurt his hand previously playing sports, although he denied this. Jenkins contradicted himself on whether he remembered Hilton’s alleged prior injury at the. time he punished him. Jenkins testified the boys were leaving the physical education class to go to the next class, and were in the hall making noise, laughing, talking, and running. Both Hilton LeBoyd and Donald Broadenaux, who was another member of the group so disciplined, testified that they were not “acting up.” They also denied having been warned previously by Jenkins not to disturb other classes, while Jenkins testified he had had trouble with this particular class before and had warned them about their behavior several times. He also stated that he specifically remembered Hilton as being one of the students making noise. In contrast, Hilton and Broadenaux testified Jenkins had been gone from the class while the horseplay was going on and returned at the time when he administered the beating to the group. Jenkins also testified it was not uncommon for teachers at the school to administer this type of punishment, although he did not remember doing it himself previously.

There were neither expert medical testimony nor medical records offered in evidence, due apparently to the long time lapse between the incident and the trial. However, LeBoyd, his parents, and Broadenaux all testified that Hilton had to wear a cast on his right forearm for about six weeks afterward. They also said that Hilton’s hand and wrist were bruised and swollen following the paddling.

Factors to consider in determining whether punishment was reasonable are the age and physical condition of the pupil, the seriousness of the misconduct eliciting the punishment, the nature and severity of the punishment, the attitude and past behavior of the child, and the availability of less severe, but equally effective means of discipline. Thompson v. Iberville Parish School Board, 372 So.2d 642 (La.App. 1st Cir. 1979), writ denied, La., 374 So.2d 650; Roy v. Continental Insurance Co., supra; 79 C.J.S. Schools and School Districts § 502.

Application of these factors turns upon the facts and circumstances of each situation. In this case, the evidence is conflicting on many of the relevant points, and thus turned on the trial judge’s evaluation of each witness’ credibility. His conclusion that plaintiff had failed to carry the burden of proof obviously indicates he believed Jenkins rather than plaintiff and Broadenaux as to the surrounding circumstances. It is well-settled that' credibility evaluations in the face of conflicting testimony are the province of the finder of fact, and an appellate court may not reverse them in the absence of manifest error. See Canter v. Koehring Co., 283 So.2d 716 (La.1973), its predecessors cited therein, and its progeny. We cannot say the trial judge was clearly wrong in leaving defendant over plaintiff.

The question remains whether, even if we believe Jenkins’ version, his punishment of Hilton LeBoyd was excessive or unreasonable. We conclude it was not. The type of paddling administered was less severe, and not nearly so embarrassing, as would been a spanking on the backside, and none of the other students was injured by it. Given that the group of boys, and Hilton specifically, were engaging in horseplay and making noise, that they had previously been warned not to disturb other classes, and that Jenkins did not recall that Hilton may have injured his hand previously, we do not consider the paddling either excessive or unreasonable.

Accordingly, the judgment of the district court is affirmed.

AFFIRMED.