author: GULOTTA, Judge. PER CURIAM. REDMANN, Judge,

text:
    NEW ORLEANS FIREFIGHTERS ASSOCIATION, et al. v. CIVIL SERVICE COMMISSION OF the CITY OF NEW ORLEANS, et al.
    No. 12426.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1981.
    Rehearing Denied Dec. 8, 1981.
    Barker, Boudreaux, Lamy, Gardner & Foley, Louis L. Robein, Jr., New Orleans, for plaintiffs-appellees.
    Many, Lo Coco & Dwyer, Ralph D. Dwyer, Jr., New Orleans, for City Civil Service Com’n.
    Salvador Anzelmo, Galen S. Brown, New Orleans, for City of New Orleans.
    Before GULOTTA, GARRISON and BARRY, JJ.
   GULOTTA, Judge.

Local 632 of the New Orleans Firefighters Association (Union) filed this action against the City of New Orleans (City), and the Civil Service Commission (Commission) seeking a declaratory judgment ordering the Commission to calculate overtime benefits to firemen not only on their city base pay as determined by the Commission, but on the sum of their base pay and supplemental pay provided by state statute. From a judgment declaring that overtime pay “is to be and should be calculated and computed on the combined basis of both base pay and state supplemental pay as provided by LSA-R.S. 33:2000(A) et seq.” and that the supplemental pay statute is “applicable to and enforceable against the Civil Service Commission of the City of New Orleans in its determination, calculation and computation of overtime pay”, the Commission and the City have appealed. We affirm.

BACKGROUND

The pertinent City Civil Service rules provide that overtime compensation for eligible fire personnel is to be set “at the rate of time and one-half of the employee’s regular hourly base rate of pay. ...” The Commission has long taken the position that state supplemental pay to firemen afforded by LSA-R.S. 33:2002(A) is not to be added to the base rate of pay in computing their overtime. Both the City and the Union, on the other hand, feel that the state supplement should be included. The instant suit was filed in the wake of our earlier decision, Civil Service Com’n., Etc. v. Rochon, 374 So.2d 164 (La.App. 4th Cir. 1979), where the Commission had sought to enjoin the City from taking action on its own initiative to include the state supplement in the overtime calculation. In ordering the trial court to issue an injunction against the City, we held that the City could not ignore the Commission and independently set the amount of overtime pay. Following our decision in Ro-chon, the Union filed this class action to determine whether LSA-R.S. 33:2002(A) mandate the Commission itself to include the statutory supplement.

TRIAL COURT’S REASONING

In well considered and well articulated reasons, the trial judge stated, in pertinent part:

“R.S. 22:2004(D) is a clear and concise legislative mandate requiring that overtime wages of firefighters be computed on the basis of combined base pay and State supplemental wages. Salary is defined as a recompense for services performed. As the Court noted in Maes v. City of New Orleans, 97 So.2d 856 (La. App.Orl. 1957), the additional pay granted by the State is not a bonus or gift but is a supplementation of salary. This Court knows of no law prohibiting the State of Louisiana from supplementing pay of New Orleans city firemen as added incentive to efficiently insure public safety and welfare.
The Civil Service Commission of the City of New Orleans is constitutionally created and vested with authority to establish a uniform pay plan for City Civil Service employees. (Art. X of the 1974 La. Const.) The Commission calculates overtime according to a formula set forth in Rule 4, Section 10, of its rules, but no Commission rule clearly sets forth the definition of “base pay” on which overtime wages must be calculated. In practice, the Civil Service Commission has calculated overtime wages based on wages paid by the City only, however, the Commission has not pre-empted the field of computation of overtime wages. To the contrary, its inaction has created a void which the State Legislature has chosen to fill by the enactment of R.S. 33:2004(D)_”
In this case a mandate from the Legislature, not in conflict with any Civil Service Commission rule, requires the use of State supplemental pay in computing overtime. The City agreed to pay overtime wages based on combined State and City pay and asserted its desire to do so at the trial of this case. The Civil Service Commission argued that, to permit any local governing authority to bind itself to pay wages outside of a Civil Service Commission plan would destroy the uniformity in pay plans which the Civil Service was created to establish. The Court is not impressed by this argument. In many instances, the State Legislature has paid additional compensation to certain classifications of Civil Service employees, which payments were theoretically in derogation of the claimed ‘uniformity’ established by the Civil Service Commission. The State has a legitimate interest in compensating a class of employees whose services provide invaluable insurance of domestic tranquility. In recognizing the value of their services through additional compensation, the State can further require that the added compensation constitute part of the base pay for computation of all employee benefits. Policemen and firefighters are in a unique position in that the overtime work which they do is mandatory. Therefore, the uniformity in pay scales achieved by the Civil Service Commission is preserved as to regular compensation for services rendered; additional compensation received by firefighters from the State injects some non-uniformity in overall pay received by City Civil Service employees, which is thoroughly justified by concepts of State police power; and, going one step further, basing overtime on combined City and State pay creates non-uniformity in the amount of overtime wages paid various classes of employees. The crucial point is that it is less essential to have uniform pay plans for base pay and overtime pay than it is to recognize that services rendered by some classes of employees justify non-uniformity.
There is no question that the Civil Service Commission can adopt rules which have the force and effect of law. There is some question as to whether their authority over pay plans for firemen is exclusive, but even assuming exclusivity, where they fail to consider State supplemental pay as part of base pay in computing overtime wages, where their rules are silent on that point and R.S. 33:2004(D) requires it, they must comply with that mandate. . .. ”

CONTENTIONS

Relying on our decision in Rochon, and the Louisiana Supreme Court’s opinions in Barnett v. Develle, 289 So.2d 129 (La. 1974) and La. Civil Serv. League v. Forbes, 258 La. 390, 246 So.2d 800 (La. 1971), the Commission contends that it has exclusive authority under LSA-Const. Art. 10, § 10(A)(1) to establish, supervise and enforce a civil service for the City free of legislative interference. The Commission argues, therefore, that there can be no “mandate” from LSA-R.S. 33:2002(A) to dictate a change in the Commission’s pay plan. According to the Commission, the trial court’s judgment effectively destroys the uniformity of the Commission’s Uniform Pay Plan and creates “inequity” to other classified employees who are in the same salary scale as firemen but who are not afforded state supplemental pay. Finally, the Commission contends that the trial court’s reliance on LSA-Const. Art. 6, § 14, is “gratuitous” and manifestly erroneous since that constitutional provision was adopted in 1974 and has no historical connection to LSA-R.S. 33:2004(D), which pre-existed it.

Although philosophically in agreement with the Union that the state supplement should be included in computing the firemen’s overtime, the City has also appealed contending the trial court erred in holding the Commission is mandated to consider the statutory supplement. It is the City’s contention that the overtime issue can be collectively bargained with the Union and that their agreement to include the state supplement should be enforced since the Commission has not enacted a rule clearly defining “base pay” for the purpose of calculating overtime. Alternatively, the City argues that if the Commission has exclusive jurisdiction over the computation of overtime then the Court should recognize that jurisdiction and order the Commission to consider whether or not to include the state supplement.

Because the arguments raised by the Commission and the City are interrelated, we consider them together.

MERITS

Before turning to the particular contentions raised, it is important to recognize, at the outset, that LSA-R.S. 33:2002(A), provide a supplement to the firefighter’s municipal salary. It is “extra” or “additional” compensation paid by the State to municipal or parish fire department employees. LSA-R.S. 33:2004(D) manifests a legislative intent that the additional compensation be all inclusive in computing employee benefits. This provision states that the supplement:

“. . . shall be included in the calculation and computation of the total wages paid to the employee in the determination of employer contributions to any retirement system or pension fund of which such employee may be a member as well as in the determination of retirement eligibility and benefits which may accrue to the employee under any retirement system or pension fund, as well as in the determination of any other employee benefits, sick leave, or disability pay to which the employee might be entitled.”

Thus, in Hebbler v. New Orleans Fire Dept., 310 So.2d 113 (La.1975), it was recognized that state supplemental pay is part of a fireman’s salary within the meaning of LSA-R.S. 49:113 and must be reimbursed by the City where a discharged firefighter is ordered reinstated by the City Civil Service Commission.

The question whether a city civil service commission is mandated to include the state supplement in computing a fireman’s overtime benefits is one of first impression. However, in Latino v. City of Bogalusa, 295 So.2d 560 (La.App. 1st Cir. 1974), it was held that a state statutory supplement paid to policemen must be included by the City in computing their overtime, but Latino apparently did not involve civil service employees or consider the power vested in a city civil service commission by the Constitution.

It is true, as argued by the Commission, that LSA-Const. Art. 10, § 10(A)(1), vests the Commission with broad and general rule-making powers for the administration and regulation of classified civil service employees, including their compensation and disbursements and adoption of uniform pay and classification plans.

However, the same constitutional provision recognizes the Legislature’s power to enact laws supplementing these uniform pay plans. In pertinent part, LSA-Const. Art. 10, § 10(A)(1) provides:

“Nothing herein shall prevent the legislature from enacting laws supplementing these uniform pay plans for sworn, commissioned law enforcement officers of the Division of State Police, Department of Public Safety and regularly commissioned officers of the Enforcement Division of the Department of Wildlife and Fisheries.”

Even though a state supplement for municipal firemen is not specifically mentioned in the above constitutional provision, LSA-R.S. 33:2004(B) bears a connexity to LSA-Const. Art. 10, § 10(A)(1) in that the Department of Public Safety, which is specifically mentioned, prepares, signs and sends the supplemental pay checks to the eligible firemen.

LSA-Const. Art. 10, § 10(A)(1), moreover, must be read in pari materia with the special provision for firemen and municipal policemen in LSA-Const. Art. 6, § 14, which provides:

“§ 14. Increasing Financial Burden of Political Subdivisions
Section 14. No law requiring increased expenditures for wages, hours, working conditions, pension and retirement benefits, vacation, or sick leave benefits of political subdivision employees, except a law providing for civil service, minimum wages, working conditions, and retirement benefits for firemen and municipal policemen, shall become effective until approved by ordinance enacted by the governing authority of the affected political subdivision or until the legislature appropriates funds for the purpose to the affected political subdivision and only to the extent and amount that such funds are provided. This Section shall not apply to a school board.”

Under this provision, laws providing for wages and working conditions for firemen and municipal policemen are specifically excepted from the requirement of prior local approval or legislative appropriation. Although it does not directly empower the Legislature to enact firemen’s pay statutes affecting civil service commissions, LSA-Const. Art. 6, § 14 is, nonetheless, a constitutional recognition of the unique status occupied by firemen and municipal policemen in the area of public safety. When this constitutional provision is read, together with LSA-Const. Art. 10, § 10(A)(1), it is clear that the rule-making power of the Commission concerning wages of firemen and policemen can be affected by state law supplementing their wages.

The constitutionality of LSA-R.S. 33:2002(A) is not at issue. The Commission in adopting its pay plan recognizes the existence of the supplemental pay but does not consider it in computing firemen’s overtime pay. If the firemen’s additional compensation under state statute can be accepted, in principle, as a constitutional exercise of legislative power that the Commission must abide by, then we see no reason why the very same supplement should not be included in the computation of overtime under the Commission’s rules. If the statutory supplement is constitutional, then, a fortiori, its mandatory inclusion in the computation of overtime does not violate the Constitution or infringe on the Commission’s powers. In fixing additional compensation for firemen, the Legislature is not usurping the Commission’s constitutional function of fixing compensation for civil service employees. The extra compensation is not in direct conflict with the Commission’s duly adopted plan but merely supplements it, as authorized by the Constitution.

The Commission’s constitutional authority has been recognized and interpreted in Rochon, Barnett, and Forbes, supra, cited by the Commission. Nevertheless, although we do not quarrel with the principles enunciated in the cited cases, they are distinguishable from our own and do not directly address the question confronting us.

In Rochon, the narrow issue before us was whether the chief administrative officer of the City of New Orleans had authority under law to alter methods of compensation and disbursements to Civil Service employees of the City as set by the Commission. In that limited context, we held that the Commission alone had the authority to set compensation in the form of salaries, including overtime of city employees with civil service status and that the City could not ignore the Commission and independently set the amount of overtime pay. We left open the question, however, whether the Commission was mandated to consider both city salaries and state supplemental payments as a basis for computing overtime pay, the issue now before us. Our decision in Rochon is not dispositive of our case.

In Barnett, the Louisiana Supreme Court held two state statutes, respectively fixing the salaries and annual vacation time of firemen in cities of 12,000 or more population, unconstitutional as applied to the City of New Orleans on the ground that the City Civil Service Commission, under LSA-Const. 1924, Art. XIV, § 15, had the sole and exclusive authority to establish, supervisé and enforce the system of civil service for the city, free of legislative interference, except for state supplementary laws not in conflict with the Constitution. In Barnett, however, the statutes held unconstitutional were specifically found not to be supplementary in nature. In our case, the 1974 Constitution recognizes the legislative right to provide supplementary pay plans. The statute (LSA-R.S. 33:2004[D]) provides that the supplement be included in the calculation of employee benefits. Unlike Barnett, we find no legislative usurpation of a constitutional right.

In Forbes, a state statute providing minimum salaries for state troopers was declared unconstitutional as violative of LSA-Const. 1924, Art. XIV, § 15 by contravening the authority of the state civil service commission to fix the pay of all state classified employees, including state troopers. As in Barnett, the statute in question was not supplementary in nature, but rather in direct conflict with the Commission’s authority to fix salaries of classified state employees. Like Barnett, Forbes, was decided under the earlier Louisiana Constitution and did not concern the issue whether state supplemental pay should be included in the calculation of overtime for city civil service employees.

We are not persuaded by the Commission’s arguments that inclusion of the state supplement in the calculation of overtime will destroy the uniformity of the Commission’s pay plan. The plan itself, when it includes firemen and policemen, has long been non-uniform. Although aware that firemen have been receiving state supplements for several years, the Commission has never considered the supplements in setting pay scales of other employees in the same salary ranges as policemen and firemen. As a practical matter, the firemen, by receiving the state supplement, earn a greater income than the counterparts in civil service who receive no state supplement. Requiring the Civil Service Commission to include the state supplement in the calculation of overtime for firemen will not destroy “uniformity” that does not exist.

In affirming the trial court’s decision, we are not unmindful of the Civil Service Commission’s constitutional power to set compensation for employees. Nevertheless, LSA-Const. Art. 10, § 10(A)(1) should not be read so broadly as to allow a local body of commissioners, albeit in good faith, to prevent the application of a state statute supplementing firemen s pay. The Legislature, in its wisdom, has seen fit to supplement the compensation of firemen. The City has expressed its desire that the state supplement be included in the calculation of overtime for the firemen. The Constitution and laws of the State of Louisiana recognize the necessity of increasing firemen’s wages to protect the public. Under these circumstances, the rule-making authority of the Civil Service Commission should not be interpreted to thwart these expressed desires to further the public need.

For the foregoing reasons, the judgment is affirmed.

AFFIRMED.

ON APPLICATION FOR REHEARING

PER CURIAM.

The -Givil Service Commission seeks a rehearing before the Court En Banc based on a claim that a conflict exists between our conclusion in this case and the decision of another panel of this court in Civil Serv. Com’n, Etc. v. Rochon, 374 So.2d 164 (La. App. 4th Cir. 1979). In conformity with the application, we have submitted to the Court En Banc the questions whether the decision in the instant case is in conflict with Ro-chon and whether a rehearing should be granted before the Court En Banc.

Concluding En Banc that no conflict exists, the application for rehearing before the entire court is denied.

REDMANN, J., dissents.

REDMANN, Judge,

dissenting.

I agree that this case does not impliedly overrule our Rochon case. Having been obliged, however, to participate to that extent in this court’s consideration of this case, I would grant rehearing en banc because of the public interest in the basic question of the authority of the Civil Service Commission.

      . Rule IV, § 10.2(c) of the City Civil Service Rules provides:
      “Non-exempt uniformed fire personnel who work a 48-hour work week shall receive overtime compensation at the rate of time and one-half the employee’s regular hourly base rate of pay for all hours worked in excess of 12 consecutive hours on a shift or 48 hours in a week. (Amended April 27, 1977 and effective February 26, 1979.)”
      Rule IV, § 1.3 provides, further:
      “The pay of all positions in the classified service shall be determined in accordance with the pay plan in effect and in accordance with the provisions of the Civil Service Law regardless of any provisions or appropriation for any different salary rate or mode of payment for any position. The Base Pay of those employees paid on a bi-weekly basis shall be computed by multiplying the appropriate monthly salary step in the salary range by twelve and then dividing this product by twenty-six. The Base Pay of those employees paid on a weekly basis shall be computed by multiplying the appropriate monthly salary step in the salary range by twelve and then dividing this product by fifty-two. (Amended April 27, 1977).”

      . LSA-R.S. 33:2002(A) reads as follows:
      “A. In addition to the compensation now paid by any municipality, parish, or fire protection district maintaining a fire department to any employee of such department, which term employee as used herein expressly excludes any person presently drawing a retirement or disability pension, secretarial and clerical employees, and mechanics which are not subject to The Municipal Fire and Police Civil Service Law, every paid, regularly employed employee who is paid not less than three hundred dollars per month from public funds, not including supplemental pay, as distinguished from part-time employees and volunteers, of such municipal, parish, or fire protection district fire department who are carried on the payroll of such municipal, parish or fire protection district fire department and every employee as defined herein who is paid from funds of the parish or municipality obtained through lawfully adopted bond issues or lawfully assessed taxes, either directly or through a board or commission set up by law or ordinance of the parish or municipality, shall be paid extra compensation by the state as follows:
      (1) One hundred forty dollars per month for each such paid, regularly employed fire department employee at the completion of three months of service.
      (2) One hundred eighty-two dollars per month for each such paid, regularly employed fire department employee who has completed or who hereafter completes one year of service.
      (3) Two hundred twelve dollars per month for each such paid, regularly employed fire department employee who has completed or who hereafter completes three years of service.
      (4) Two hundred forty-one dollars per month for each such paid, regularly employed fire department employee who has completed or who hereafter completes six years of service.

      . LSA-Const. Art. 10, § 10(A)(1) reads as follows:
      “Section 10. (A) Rules. (1) Powers. Each commission is vested with broad and general rule-making and subpoena powers for the administration and regulation of the classified service, including the power to adopt rules for regulating employment, promotion, demotion, suspension, reduction in pay, removal, certification, qualifications, political activities, employment conditions, compensation and disbursements to employees, and other personnel matters and transactions; to adopt a uniform pay and classification plan; to require an appointing authority to institute an employee training and safety program; and generally to accomplish the objectives and purposes of the merit system of civil service as herein established. It may make recommendations with respect to employee training and safety. Nothing herein shall prevent the legislature from enacting laws supplementing these uniform pay plans for sworn, commissioned law enforcement officers of the Division of State Police, Department of Public Safety and regularly commissioned officers of the Enforcement Division of the Department of Wildlife and Fisheries.”

      . LSA-Const. Art. 6, § 14 reads as follows:
      “Section 14. No law requiring increased expenditures for wages, hours, working conditions, pension and retirement benefits, vacation, or sick leave benefits of political subdivision employees, except a law providing for civil service, minimum wages, working conditions, and retirement benefits for firemen and municipal policemen, shall become effective until approved by ordinance enacted by the governing authority of the affected political subdivision or until the legislature appropriates funds for the puipose to the affected political subdivision and only to the extent and amount that such funds are provided. This Section shall not apply to a school board.”

      .LSA-R.S. 33:2004(D) reads as follows:
      “D. The additional compensation paid by the state to municipal or parish fire department employees as provided by this Subpart shall be included in the calculation and computation of the total wages paid to the employee in the determination of employer contributions to any retirement system or pension fund of which such employee may be a member as well as in the determination of retirement eligibility and benefits which may accrue to the employee under any retirement system or pension fund, as well as in the determination of any other employee benefits, sick leave, or disability pay to which the employee might be entitled. Amended by Acts 1967, No. 82, § 1; Acts 1978, No. 496, § 1.”

      . LSA-R.S. 33:2004(B) provides:
      “B. The mayors or parish officials of the respective municipalities or parishes shall forward the warrants to the secretary of the Department of Public Safety and, after obtaining approval of the board as approved in R.S. 33:2009 hereof, the secretary of the Department of Public Safety shall cause to be prepared and shall sign individual checks representing the amount to be paid out of state funds to each employee in accordance with the provisions of this Subsection. Each such check shall show the legislative appropriation from which payment is made and shall note that it represents additional compensation paid by the state under the provisions of this Subpart. The secretary shall deliver the checks to the individual employees in whose favor they are drawn, by mail, or by such other means as he shall determine.”


source: Caselaw Access Project

author: GULOTTA, Judge. BARRY, Judge,

license: Public Domain

text:
    Charles L. KELLY v. The CITY OF NEW ORLEANS.
    No. 12584.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1981.
    Writ Granted Jan. 8, 1982.
    Joseph W. Thomas and Belhia V. Martin, New Orleans, for plaintiff-appellant.
    Delbert G. Talley, Gretna, for defendant-appellee.
    Before GULOTTA, GARRISON and BARRY, JJ.
   GULOTTA, Judge.

In this worker’s compensation case, the trial judge, on remand from this court, decreed that “plaintiff has already received all the workmen’s compensation benefits he is entitled to receive.” Judgment on remand was rendered in favor of City of New Orleans and against plaintiff. We affirm.

In the earlier appeal before this court, which involved, inter alia, the question of plaintiff’s entitlement to “further compensation benefits”, we remanded the matter to the trial court to allow plaintiff to introduce his employment record (not available to him at the time of the original trial) to be considered by the trial judge with other evidence in making “a determination of whether or not the initial injury was related to his [plaintiff’s] shoulder problems subsequent to July 7, 1978.”

Plaintiff, a New Orleans police officer, injured his left shoulder in a job-related automobile accident on May 30, 1978 while a passenger in a police squad car. His condition was diagnosed as pulled muscles in the left shoulder. Compensation payments were ordered from June 4 to July 7, 1978 when he was released to return to limited duty. As result of a non-job related incident on July 14, plaintiff reinjured the same shoulder while teaching his child to swim. He was referred to an orthopedic surgeon, Dr. Roy Marrero, by Dr. Dominic Condie, the salaried police department physician who had treated him for his earlier shoulder injury on May 30. Based solely on a history given to him by plaintiff that he had suffered an earlier dislocation of his shoulder and without examining Dr. Con-die’s records, which failed to indicate either a dislocation or a separation, or ordering x-rays, Dr. Marrero performed surgery on plaintiff’s shoulder.

It is plaintiff’s contention that in a February 14, 1977 incident he dislocated his left shoulder while engaged in training at the police academy and that this separation or dislocation was related to the reinjuring of his shoulder and “recurrences” of his shoulder problem resulting in the subsequent surgery performed by Dr. Marrero.

In the earlier case the trial judge had refused to award compensation benefits after July 7, 1978 (when plaintiff returned to work after the job-related automobile accident) based on a finding that the July 14 swimming incident which caused the development of a shoulder problem was not work-related.

In the order of remand to the trial court from this court, we allowed plaintiff the opportunity of showing a relationship between a claim of a dislocated shoulder injury resulting from the February 14, 1977 incident at the training academy and the subsequent operation by Dr. Marrero. On remand, plaintiff’s report of the February 14 injury and a Charity Hospital report showing diagnosis and treatment of it were offered into evidence. Because the operation performed by Dr. Marrero presupposed the existence of an earlier dislocation, the question for resolution on the issue of plaintiff’s entitlement to further benefits and medical expenses resolved itself into whether or not plaintiff had established, on remand, that he had suffered a shoulder dislocation in the February 14, 1977 incident.

The trial judge concluded that plaintiff’s shoulder problem was congenital in nature, existing before the accident occurred. According to the trial judge, because plaintiff was born with a defective shoulder that could easily be separated, and in fact separated on two work-related occasions, plaintiff has been compensated and is not entitled to further compensation. The trial judge then further concluded that the shoulder surgery was not causally related to the on-the-job accident but was caused from a congenital problem.

Our evaluation of the evidence on remand, considered together with the findings made by this court in the opinion in the earlier appeal, leads to a result consistent with that made by the trial judge. Plaintiff’s report of April 6, 1977 to the chief administrative officer of the City of New Orleans states that he fell on his left shoulder causing a shoulder separation on February 14, 1977. He indicates also in the report that his “left shoulder was dislocated.” However, despite his self-diagnosis, the x-rays taken at Charity Hospital for determination whether or not a dislocation in fact existed, showed “negative.” Treatment involved pain killers and the use of an arm sling. When we consider this evidence, together with the earlier opinion of this court and the testimony of Dr. Condie who stated that plaintiff had neither suffered a dislocation nor a separation, we conclude plaintiff failed to establish entitlement to further workmen’s compensation benefits or to payments of the cost for hospitalization and surgery performed by Dr. Marrero.

Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

BARRY, Judge,

dissenting.

I dissent because I am convinced the record and law supports appellant’s claim for benefits.

After we remanded, the trial judge held that the plaintiff had been fully compensated for his two shoulder separations which resulted from work-related injuries on February 14, 1977 and May 30, 1978. His decision was based on the belief that plaintiff has a propensity to shoulder separations which is a congenital or anatomical defect. I find no medical evidence to support that conclusion and this was conceded by counsel for appellee during oral argument. The record reveals no history of shoulder problems pre-dating the first work-related accident.

Prior to surgery plaintiff suffered three separations, the first two at work and the third while off-duty. Dr. Marrero, an orthopedic surgeon, testified that surgery was necessary to prevent future recurrences. He stated where a patient has at least two shoulder separations, there is a 75 percent chance that the problem will recur.

Although Dr. Condie, a general surgeon, testified only muscle and soft tissue injuries were sustained in the auto accident, Dr. Marrero testified that x-rays would not necessarily reveal a dislocated shoulder if the joint had been repositioned prior to taking the x-rays. Plaintiff testified he was able to move his shoulder back into place after this accident and Dr. Condie agreed this was possible. Dr. Marrero had no problem with plaintiff’s claim and felt surgery was necessary to correct the condition that had manifested itself in the two work-related accidents.

Even if the record supported the trial judge’s finding that the plaintiff was predisposed to shoulder problems (which I feel it does not), our law specifies that an employer fakes his employee as he finds him. Cadiere v. West Gibson Products Co., Inc., 364 So.2d 998 (La.1978). Also, where a recurrence or aggravation of a work-related injury occurs when the employee is outside the course and scope of employment this injury is also compensable. Bolden v. Georgia Casualty and Surety Co., 363 So.2d 419 (La.1978); Hall v. H. B. Zachary Co., 402 So.2d 761 (La.App. 4th Cir. 1981).

I can only conclude that the two work-related accidents coupled with the later swimming incident and resultant surgery established a valid claim for partial permanent disability. Our compensation act is to be liberally construed in favor of the employee to protect him from loss resulting from an employment-related injury and to place the loss on ‘the employer who can more readily bear it. Campbell v. Fidelity & Casualty Co. of New York, 339 So.2d 339 (La.1976), and Lagraize v. New Orleans Armature Works, 387 So.2d 687 (La.App. 4th Cir.), writ denied 394 So.2d 615 (La.1980).

      . Kelly v. City of New Orleans, 384 So.2d 546 (La.App. 4th Cir. 1980).

      . The pertinent language of this court in the earlier appeal is as follows:
      “ANSWER TO THE APPEAL
      In answer to the City’s appeal, plaintiff contends he is also entitled to compensation benefits and medical expenses from July 20 to December 2, 1978, an additional award for attorney’s fees by reason of this appeal and, alternatively, that the matter be remanded for newly discovered evidence.
      When, during trial, plaintiff testified he originally had suffered a separation or dislocation of his left shoulder at the police academy, he was unable to offer any proof thereof other than his own testimony because, in response to a subpoena duces tecum, the City produced his employment file which did not contain such information. However, we are informed in brief that, after trial, the City found a copy of the accident report to which plaintiff referred and sent it to him stating it had been misfiled. A copy of the report and affidavit was attached thereto. The City does not deny this.
      [4] Since it was not the fault of plaintiff that his employment records were incomplete and the trial judge thus was not presented with the true facts, plaintiff is entitled to a determination of whether or not the initial injury was related to his shoulder problems subsequent to July 7, 1978. If so, he is entitled to further compensation benefits. We remand for a determination of those questions.”


author: BOUTALL, Judge.

text:
    Bernard B. POMES, III v. NATIONAL SURETY CORPORATION.
    No. 12128.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1981.

      Lawrence J. Duplass, Johnston & Du-plass, New Orleans, for Nat. Sur. Corp., defendant-appellee.
    Mitchell J. Hoffman, McCloskey, Den-nery, Page & Hennesy, New Orleans, for Bernard B. Pomes, III, plaintiff-appellant.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   BOUTALL, Judge.

Plaintiff appeals the granting of a summary judgment in favor of the defendant denying the plaintiff coverage for an automobile accident which occurred after the insurance policy was cancelled. We affirm.

The facts are not in dispute. The plaintiff, Bernard B. Pomes, III purchased a 1979 Chevrolet Corvette on September 28, 1978. Pomes applied for liability and collision insurance coverage through Tom J. Dunne, Insurance Consultant. Defendant, National Surety Corporation, a subsidiary of the Fireman’s Fund Group, issued an automobile policy through Dunne to Pomes covering the 1979 Chevrolet Corvette for a one year period beginning on September 28, 1978.

On November 1,1978, Pomes requested in writing that the insurance policy be can-celled and he stopped making any premium payments. Dunne sent several notices that the policy was subject to cancellation if no more premium payments were received. Pomes sent a notice to Dunne on November 22, 1978, once again requesting that his policy be terminated. In response to Pomes’s demands, National Surety sent a notice to him stating that the effective date of cancellation of the policy was to be December 18, 1978, at the standard time specified in the policy. The standard time specified in the policy was 12:01 A.M.; accordingly, the policy was terminated on December 13, 1978, at 12:01 A.M. On December 13, 1978, at 11:30 P.M., Pomes was involved in an automobile accident which totally wrecked his vehicle.

The issue before us is whether the granting of the summary judgment in favor of the defendant denying Pomes coverage is proper. Pomes argues that the cancellation notice of December 13, 1978, was ambiguous because it did not specify the exact time of cancellation but only referred to the standard time in the policy. We believe that the record clearly shows that Pomes repeatedly requested such cancellation and the insurance company merely complied with his wishes. The policy was cancelled at 12:01 A.M. on the morning of December 13, 1978. Pomes’s accident occurred the same day but nearly twenty-four hours after the policy period was terminated and was therefore not covered by the automobile insurance policy in question.

For the above reasons, the judgment is affirmed. All costs of this appeal are to be paid by the appellant.

AFFIRMED.


text:
    Richard LINDHOLM, et al. v. Louis JOHNSON.
    No. 12132.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1981.

      Alfred C. Williams, Baton Rouge, for Louis Johnson, defendant-appellant.
    Emile R. St. Pierre, Destrehan, for Richard Lindholm, plaintiff-appellee.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   BOUTALL, Judge.

This appeal concerns whether a plaintiff properly substantiated a damages award made pursuant to a default judgment. The plaintiffs Richard and Ann Lindholm, obtained a default judgment in the amount of $3,676.00 against the defendant, Louis Johnson. Johnson appeals claiming that plaintiffs did not sufficiently prove their damages.

The facts are that on August 4, 1979, the Lindholms sold a 1974 Oldsmobile to Johnson for $1,940.00, receiving a check in payment. The Lindholms attempted to cash the check but it was returned NSF. They allege that they made several demands for the money, but Johnson refused to cooperate. As a result, they impounded the vehicle at St. Charles Transit Systems, Inc., at a cost of $342.00. The Lindholms stated that between the selling date and the impoundment date, the vehicle’s value deteriorated to a point of being almost worthless.

On July 29, 1980, a petition for damages for the amount of $10,000.00 was filed. A preliminary default was entered on August 14 and confirmed on August 19, 1980, awarding plaintiffs $3,676.00.

The issue on appeal is whether the judgment is supported by sufficient proof. The petition states that the price, costs, and other damages are to be proven at trial. The testimony simply says that the plaintiff agrees with the allegations of the petition as being correct and claims $3,676.00 as damages. This is not sufficient proof to justify such an award.

Article 1702 of the Louisiana Code of Civil Procedure sets out the basic requirements for confirming a default. It provides in part: “A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case.” This has been interpreted to mean that plaintiff must prove the essential allegations of his petition as if they had been specifically denied in order to confirm a default judgment. Plaintiffs did not carry their burden of proof. Their testimony did not substantiate or even itemize the damages concerning the vehicle and the check.

Accordingly, the judgment appealed from is set aside and is remanded back to the lower court in order to substantiate the damages incurred by the plaintiffs, or any other proceedings that may be appropriate. Costs to await the final disposition of the case.

SET ASIDE AND REMANDED.

      . Carboline Company v. Hymel, 335 So.2d 45 (La.App. 4th Cir. 1976); Holland v. Aetna Life & Casualty Insurance Company, 385 So.2d 316 (La.App. 1st Cir. 1980); Calvert Fire Insurance Company v. Felton, 244 So.2d 311 (La.App. 4th Cir. 1971).


text:
    Dave POWELL v. TAC AMUSEMENT COMPANY, INC., Lawrence L. LaGarde, Sr., Jeff Seligman, Richard A. Pennock, Nicholas Gagliano, William Lupo, Nicholas Caruso, William Newport, Robert Kelly, John J. Elms, Jr., Josephine Anselmo Elms, Regina Elms Mauberret, Joyce Elms Roche, and XYZ Insurance Company.
    No. 12139.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1981.
    Anthony L. Marinaro and Frank A. Sil-vestri of Silvestri, Marinaro, Massicot & Davis, New Orleans, for Dave Powell, plaintiff-appellant.
    Robert N. Ryan and William L. Brock-man, Bienvenu, Foster, Ryan & O’Bannon, New Orleans, for Gulf Ins. Co., Josephine Anselmo Elms, Regina Elms Mauberret, Joyce Elms Roche, John Elms and Lawrence LaGarde, Sr., defendants-appellees.
    Lawrence L. LaGarde, Jr., New Orleans, for Tac Amusement Co., Lawrence L. La-Garde, Sr., Jeff Seligman, Richard A. Pen-nock, Nicholas Caruso, William Newport, Robert Kelly, John Elms, Jr., Elmo Bien-venu, Jr., and Warren J. Sciortino, Sr., defendants-appellees.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   BOUTALL, Judge.

Plaintiff is a workman who was injured during his employment and he has filed suit for personal injuries and damages in tort against various executive officers and management employees of his employer. He appeals from an adverse jury verdict.

Dave Powell was employed by Tac Amusement Company, Inc., for a number of years and at his request was transferred to the “move department” which handled the operation of moving Tac’s various amusement machines and devices. On March 23, 1976, he was assigned to assist in picking up and returning to Tac a pool table. In the process of unloading the pool table at Tac’s premises, it fell out of the truck on plaintiff, injuring his right leg. Powell brought suit against the named defendants, executive officers and management employees of Tac, asserting tort liability under the provisions of Louisiana Civil Code Article 2315. A jury trial ensued and the jury rendered a verdict against Powell, answering interrogatories addressed to it by finding that Powell was guilty of negligence and that his negligence was a proximate cause of the accident. The jury found no negligence on the part of any defendants, and accordingly judgment was rendered dismissing Powell’s suit. On this appeal, Powell assigns two errors: 1) That the verdict of the jury is unsupported by the law and the evidence as to the proximate cause of Powell’s accident and 2) charging the jury that contributory negligence was a bar to recovery in this case was clearly erroneous, per Baumgartner v. State Farm Mutual and Auto Insurance Company, 356 So.2d 400 (La.1978).

The testimony of Powell is that the truck unexpectedly moved forward while the pool table was being moved from it, that this caused the table to roll backwards off the truck, that he could not get away and the table fell on his feet. He testified that because of a bad battery the truck was parked with its motor running so that the tailgate loader, described as either pneumatic or hydraulic, could be operated with sufficient electricity. Because the emergency brake was inoperative, the truck was free to move and for some reason it did. Two witnesses supported his testimony of an inoperative brake and bad battery.

As opposed to this, the defendants introduced evidence that the brake was not bad, and that the battery was not defective. William Newport, who was present at the scene of the accident, and who attempted to prevent the table from falling, placed the cause of the accident on a combination of two circumstances, 1) that the pool table was being moved with the heaviest portion, i.e., the slate bed, on the outside, and 2) that the right wheel of the dolly carrying the pool table had moved off the lip of the tailgate as a result of misjudgment in placing the table onto the tailgate.

The issue thus resolves itself into a matter of credibility of the witnesses which the jury obviously answered in favor of the defendants. We cannot disturb that jury finding absent clear and manifest error. Canter v. Koehring Co., 283 So.2d 716 (La.1973). We find no such error, and indeed we agree with the jury’s findings.

The testimony of plaintiff Powell raises serious doubts as to his credibility, not only in respect to the accident but also as to the extent of his injuries. The testimony of his witnesses, McZeal and Nash, as to the emergency brake conflicts with reasonable fact. It is difficult to believe that the truck could be driven for two years with bad brakes and the brake lever dangling loose, without them, as drivers, having reported the condition or that such a noticeable condition would not have been repaired.

We believe the facts to show that Dave Powell was the experienced man in this operation, and that he attempted to remove the pool table in a dangerous and improper fashion, causing him to be injured. We note that all witnesses except Powell were aware that the truck was equipped with chocks to hold the wheels in place to keep it from moving if necessary. Similarly, everyone was aware that the pool table should be moved with the legs sticking out toward the rear and the bed toward the truck body so that if any accident occurred, the table would fall to its heaviest side, the slate bed. In short, a preponderance of the evidence favors the jury’s verdict.

The second assignment of error is that the jury charge was erroneous as per Baumgartner v. State Farm, supra. We simply say that a reading of that case demonstrates that its principles do not apply to a situation like this where a truck is backed against a loading dock and the workmen are engaged in loading the truck. Additionally, we point out that the trial judge specifically asked each attorney if there were any objections to the charge and all replied that there were none. Appellant cannot raise his objection on appeal. See Code of Civil Procedure Article 1793. Appellant also asserts that the jury did not understand “proximate cause” because it asked for further instructions. However, appellant offers nothing other than this assertion for our consideration, and we simply consider that this was a conscientious jury which wanted to be sure that justice would be served.

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

AFFIRMED.


author: SCHOTT, Judge.

text:
    Patrick A. BRANIGHAN, Jr. v. Mary Alyce GASKIN.
    No. 12724.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1981.
    Bruce W. Dinwiddie, Windmeyer & Din-widdie, Metairie, for defendant-appellee.
    Clyde P. Martin, Jr., New Orleans, for plaintiff-appellant.
    Before REDMANN, SCHOTT and KLEES, JJ.
   SCHOTT, Judge.

This is before us on our own motion to show cause why the appeal should not be dismissed. The last day for taking the appeal was on January 14, 1981, but the motion for the appeal was not filed until January 16.

In response to our rule to show cause appellant has shown that he mailed the motion for appeal on January 13 and argues that he should not be penalized because of a delay in postal service. C.C.P. Art. 2121 provides that an appeal is taken by obtaining an order from the trial court “within the delay allowed.” This necessarily requires that the motion or petition for appeal be filed within that delay. Art. 253 provides that all pleadings to be filed shall be delivered to the clerk of the court. It was thus incumbent upon appellant to insure that his motion for appeal be in the hands of the clerk of court within the delay provided by Arts. 3942 and 3943, and he assumed the risk of a delay when he chose to send his motion by mail rather than to deliver it to the clerk of court.

Appellant also contends that the delay for his appeal was somehow extended by virtue of his disagreement with appellee as to the form of the judgment drafted by appellee’s counsel. He has annexed to his reply copy of two letters of December 12, 1980, from his counsel to the trial judge in which he took issue with certain provisions of what his counsel referred to as a “draft judgment.” The judgment had already been signed eight days previously when this letter was sent. At this point appellant’s only remedy was to take a timely appeal. His failure to do so resulted in the judgment becoming final in the trial court on January 15, 1981, and the appellate court could not obtain jurisdiction over the case thereafter.

Accordingly, the appeal is dismissed.

APPEAL DISMISSED.


author: GARRISON, Judge. BARRY, Judge,

text:
    Melvina BRYANT v. NEW ORLEANS PUBLIC SERVICE INCORPORATED and ABC Insurance Company.
    No. 12099.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1981.
    Writ Granted Jan. 8,1982.
    Bruno, Bruno & Blouin, Frank S. Bruno, New Orleans, for plaintiff-appellant.
    C. B. Ogden, II, New Orleans, for defendant-appellee.
    Before GULOTTA, GARRISON and BARRY, JJ.
   GARRISON, Judge.

This case presents a res nova issue: whether the “collateral source” rule applies in workmen’s compensation cases. As stated by the Third Circuit, Judge Tate as organ of the court, in Hall v. State Dept. of Hwys., 213 So.2d 169 (La.App. 3rd Cir. 1968), writ refused, 252 La. 959, 215 So.2d 128, the collateral source rule provides:

“While a tortfeasor is entitled to credit for payments made through insurance procured by the tortfeasor himself, Gunter v. Lord, 242 La. 943, 140 So.2d 11 (1962), the plaintiff’s tort recovery is not diminished because of payments made through insurance of other collateral sources independent of the wrongdoer’s procuration or contribution, Gunter v. Lord at 140 So.2d 16; American Indemnity Co. v. New York Fire & Marine Underwriters Inc., 196 So.2d 592 (La.App. 1 Cir. 1967); Roux v. Brickett, 149 So.2d 456 (La.App. 3rd Cir. 1963).” (at 1975).

See also: Corley v. West, 346 So.2d 1272, 1273 (La.App. 3rd Cir., 1977).

The collateral source rule has been held to apply not only where plaintiff directly purchased insurance against which the plaintiff recovered, but also where there have been Medicare payments — Womack v. Traveler’s Insurance Co., 258 So.2d 562 (La. App. 1st Cir., 1972); sick leave and annual leave payments — Dunlap v. Armendariz, 265 So.2d 352 (La.App. 4th Cir., 1972); retirement pension payments — Adam v. Schultz, 250 So.2d 811 (La.App. 4th Cir., 1971); free medical services rendered as a professional courtesy — Spizer v. Dixie Brewing Co., 210 So.2d 528 (La.App. 4th Cir., 1968); Federal Social Security Benefits — Doerle v. State, 147 So.2d 776 (La. App. 3rd Cir., 1962); free medical care rendered by the Veteran's Administration— Fullilove v. U. S. Casualty Co. of N. Y., 129 So.2d 816 (La.App. 2nd Cir., 1961); insurance paid for by the employer for the employee as a result of a collective bargaining agreement in an F.E.L.A. case — Hall v. Minnesota Transfer Ry. Co., 322 F.Supp. 92 (D.Minn., 1971); and suits brought under the Jones Act and Longshoremen’s and Harbor Worker’s Compensation Act — Tipton v. Socony Mobil Oil Co., 375 U.S. 34, 85 S.Ct. 1, 11 L.Ed.2d 4 (1963). In Bourque v. Diamond M. Drilling Co., 623 F.2d 351 (5th Cir., 1980) the court held that an employer tortfeasor could not violate the collateral source rule by applying as a set-off workmen’s compensation benefits received by the former employee from another employer. Thus, the collateral source rule has wide and varied application.

There are several reasons for the existence of the collateral source rule. The reason most often stated is that the defendant should not recover' from outside benefits provided to the plaintiff or procured by the plaintiff. For years the Louisiana courts struggled with the so-called “windfall” or “double-dip” aspect of the collateral source rule only to discover that no “windfall” or “double-dip” in fact occurred. No “windfall” or “double-dip” occurred because the injured party’s patrimony was diminished to the extent that he was forced to recover against outside sources and the diminution of patrimony was additional damage suffered by him.

For example, if the payment received by plaintiff was from annual leave or sick leave time, then those resources which would have been available to him but for the accident or injury, are no longer available and he has suffered the loss of annual or sick leave time for which he should be recompensed. This same logic applies to pension payments, government benefits, and gratuitous services.

In the case of insurance purchased by the plaintiff or by deductions made from the plaintiff’s paycheck, the plaintiff has paid premiums which are a diminution of his patrimony as that cash would have otherwise been available to him. By going against his own insurance policy, he is diminishing the benefits of that policy which would otherwise be available, he has suffered a diminution of the patrimony by premium payments and his rates will rise providing a third area of loss.

Where insurance is provided by the employer, then that fringe benefit is in the nature of deferred compensation. The deferred compensation would have been available to him as cash per paycheck, but for the existence of the deferred compensation plan. Likewise, the benefits of the deferred compensation would have been available but for the injury.

Lastly, if the collateral source rule were not applied, then there would be no reason for an individual to purchase insurance. For example, if in a wrongful death case the tortfeasor was allowed a set-off for proceeds from the deceased’s life insurance policy, then the deceased’s estate suffered the loss not only of the amounts paid as premiums but also for the use of the money over the years, so that the deceased’s estate could, theoretically, bring an action against the defendant to recover back the set-off amount.

In the instant appeal, defendant-ap-pellee argues that it should be allowed a set-off for medical bills paid by the plaintiff’s husband’s group insurance policy provided by his employer, because to do otherwise would allow plaintiff a “windfall.” As discussed above, this contention is erroneous because of the diminution of the spouse’s deferred compensation resulting in the diminution of the community patrimony. If an individual insures himself for the loss he suffers over and above the stringent amounts allowed under the workmen’s compensation law, then the workmen’s compensation insurer and employer should not reap the benefits of that additional insurance.

Defendant-appellee further argues that the collateral source rule applies only to tort and not to workmen’s compensation specifically because of the exclusivity provision of the workmen’s compensation statute.

R.S. 23-1032 reads as follows:

“The rights and remedies herein granted to an employee on account of an injury . . ., shall be exclusive of all other rights and remedies . .. against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal. . . . ”

That statute does not provide that the rights and remedies of the employee shall be exclusive of all other rights and remedies against people other than those listed in the statute, including plaintiff’s own insurer. Accordingly, the exclusivity of workmen’s compensation does not expressly exclude application of the collateral source rule. The workmen’s compensation statute should be liberally construed in favor of the worker. Pierce v. Kaiser Aluminum Chemical Co., 311 So.2d 509 (La.App. 4th Cir., 1975).

Under the facts of this case, the trial judge found that plaintiff was in necessitous circumstances and under an unusual hardship, such that she was entitled to medical, surgical or hospital services in excess of $12,500.00 under R.S. 23:1203. This factual determination is not on appeal. Plaintiff only appealed the collateral source rule and defendant-appellee failed to cross-appeal.

We find that the trial judge erred in failing to apply the collateral source rule by allowing to defendant a set-off for payments made under the plaintiff’s husband’s insurance.

For the reasons discussed, the judgment of the trial court is reversed in part and affirmed in part as follows:

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiff, Melvina Bryant, be and hereby is awarded an additional Twelve Thousand Dollars ($12,000.00) in medical benefits under R.S. 23:1203.

REVERSED IN PART; AFFIRMED IN PART.

BARRY, J., concurs.

BARRY, Judge,

concurring.

I concur in the result that the collateral source rule applies in workmen’s compensation cases because it is unlawful for any employer to collect from any employee, directly or indirectly any amount whatsoever for the purpose of contributing to compensation insurance or to reimburse such employer. The provisions of LSA-R.S. 23:1163 should be applied.


author: CHEHARDY, Judge.

text:
    DE LAUREAL ENGINEERS, INC. v. ST. CHARLES PARISH POLICE JURY.
    No. 12049.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1981.
    Rehearing Denied Dec. 18, 1981.
    Murray, Murray, Ellis, Braden & Landry, Michael H. Ellis, New Orleans, and Steven F. Griffith, Sr., Destrehan, for plaintiff-appellant.
    Before SAMUEL, BOUTALL and CHE-HARDY, JJ.
   CHEHARDY, Judge.

Plaintiff, De Laureal Engineers, Inc., appeals a district court decision in favor of defendant, St. Charles Parish Police Jury, and against the plaintiff denying and dismissing its demand for issuance of writs of seizure and garnishment and also denying and dismissing its demand for injunctive relief.

Plaintiff in the present case sought to make executory a judgment by this court, reversing the district court and awarding the plaintiff $37,514.80 with legal interest from February 15, 1973 until paid.

In his written reasons for judgment the trial court judge said:

“Plaintiff, a judgment creditor of defendant, seeks to have this court make its judgment executory and issue writs of seizure and garnishment, and to enjoin further spending of public funds by the jury.
“La.Const.Art. 12, Sec. 10(C), in part provides that the legislature shall provide for the effect of a judgment against a political subdivision but that no public funds or public property shall be subject to seizure and that no judgment against a political subdivision shall be exigible, payable or paid except from funds appropriated therefor by the political subdivision.
“RS 13:5109(B), provides in part that any judgment rendered against a political subdivision shall be exigible, payable and paid only out of funds appropriated for that purpose by the political subdivision.
“Firstly, there is no need to make the judgment executory. It is executory but can only be paid from funds appropriated for that purpose.
“Secondly, this court cannot order either seizure or garnishment of the public funds or public property of the Police Jury: Const. Art. 12:10C; Foreman v. Vermilion Parish Police Jury, 336 So.2d 986 [(La.App.)].
“Finally, there is no law that would allow this court to enjoin the Police Jury from expending public funds or disposing of public property.”

We agree and affirm. LSA-Const. Art. 12, § 10 states:

“(A) No Immunity in Contract and Tort. Neither the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property.
“(B) Waiver in Other Suits. The legislature may authorize other suits against the state, a state agency, or political subdivision. A measure authorizing suit shall waive immunity from suit and liability.
“(C) Procedure; Judgments. The legislature shall provide a procedure for suits against the state, a state agency, or a political subdivision. It shall provide for the effect of a judgment, but no public property or public funds shall be subject to seizure. No judgment against the state, a state agency, or a political subdivision shall be exigible, payable, or paid except from funds appropriated therefor by the legislature or by the political subdivision against which judgment is rendered.”

Additionally, LSA-R.S. 13:5108(B) states:

“Any judgment rendered in any suit filed against the state, a state agency, or a political subdivision, or any compromise reached in favor of the plaintiff or plaintiffs in any such suit shall be exigible, payable, and paid only out of funds appropriated for that purpose by the legislature, if the suit was filed against the state or a state agency, or out of funds appropriated for that purpose by the named political subdivision, if the suit was filed against a political subdivision.”

In the case of Fontenot v. State Depart. of Highways, 358 So.2d 981 (La.App. 1st Cir. 1978), the court stated at 982:

“Next plaintiffs assert they should be allowed to mandamus the police jury to appropriate the funds for the payment of the judgment, on the grounds that the discretionary power of a political subdivision cast in judgment to refuse to pay has been removed and therefore the appropriation process has been converted into a ministerial duty amenable to mandamus. We disagree. The appropriation of funds by a legislative body has been almost universally held to be discretionary, not ministerial. We find nothing in the Constitution or recent jurisprudence to compel a contrary result.
“We therefore hold that the police jury should not be required to submit to a judgment debtor rule.”

In a brief per curiam order in Fontenot, the Supreme Court, at 355 So.2d 1324 (1978), reversed the appellate court judgment, however, and reinstated the judgment debtor rule. However, the court noted its order was not intended to affect proceedings beyond the judgment debtor examination, therefore not determining if the plaintiff had the right to execute his judgment through seizure or mandamus.

In the case of Foreman v. Vermilion Parish Police Jury, 336 So.2d 986, 988-989 (La. App. 3d Cir. 1976), the court also addressed the issue of whether any public property could be seized to satisfy a judgment:

“Foreman contends, finally, that the trial court judgment, which prohibits him from seizing and selling property owned by the Police Jury to satisfy his judgment, denies him ‘justice and equal protection of the laws.’ Article 12, Section 10(A), of the Louisiana Constitution of 1974 provides that a political subdivision is not immune from ‘suit and liability’ for injury to person or property. Foreman takes the position that the judgment appealed from, decreeing in effect that the Police Jury is immune from ‘seizure,’ conflicts with the cited section of the constitution which provides that it is not immune from ‘suit and liability.’ His argument is that by granting the Police Jury immunity from seizure, the trial court judgment also grants it immunity from suit and liability, in violation of the provisions of the constitution, since it deprives the judgment creditor of a means of enforcing payment of the debt for which the Jury is liable.
“We construe the above argument to be (1) that there is a conflict in the provisions of Article 12, Section 10, of the Louisiana Constitution which should be resolved in favor of the judgment creditor, and (2) that LSA-R.S. 13:5109-B, and La.Const.1974, Art. 12, Sec. 10(C), are invalid on the ground that they violate the “due process of law” and the “equal protection of the laws” provisions of the Fourteenth Amendment of the United States Constitution.
“We find no conflict between Section 10(A) and Section 10(C), of Article 12, of the constitution. Neither do we find a conflict between LSA-R.S. 13:5109-B and Section 10(A), which provides that a political subdivision is not immune from suit or liability. The first cited section of the constitution, and LSA-R.S. 13:5109-B, merely provide a method by which judgments rendered against the state or its political subdivisions may be paid. They do not conflict with the provisions of the constitution that the state or its subdivisions are not immune from suit or liability.
“The state clearly has the right to regulate the way in which judgments against its political subdivisions can be paid, and to prohibit the seizure of property owned by those subdivisions. In our opinion, the methods provided in the above cited statutes and constitutional provisions do not offend the rights granted to the judgment creditor by the Fourteenth Amendment of the Federal Constitution.”

LSA-C.C.P. art. 3862 also states, regarding mandamus:

“A writ of mandamus may be issued in all cases where the law provides no relief by ordinary means or where the delay involved in obtaining ordinary relief may cause injustice; provided, however, that no court shall issue or cause to be issued a writ of mandamus to compel the expenditure of state funds by any state department, board or agency, or any officer, administrator or head thereof, or any officer of the state of Louisiana, in any suit or action involving the expenditure of public funds under any statute or law of this state, when the director of such department, board or agency, or the governor shall certify that the expenditure of such funds would have the effect of creating a deficit in the funds of said agency or be in violation of the requirements placed upon the expenditure of such funds by the legislature.”

LSA-Const. Art. 12, § 10(C) provides that no judgment shall be payable except from funds appropriated therefor by the political subdivision. Under Fontenot, supra, with which we agree, appropriation of funds is discretionary and not ministerial, and mandamus will not lie to compel payment of a judgment by a police jury.

Even were we to extend the application of LSA-C.C.P. art. 3862 to political subdivisions we would note that in the present case Roland Becnel, secretary-treasurer of the St. Charles Police Jury, testified that all of the funds belonging to the Police Jury had been dedicated since November of 1979, prior to the December 27, 1979 and February 29, 1980 hearings in the case and accordingly there would be no abuse of discretion in the Police Jury’s not appropriating, at that time, funds sufficient to satisfy the plaintiff’s judgment against it.

For the reasons assigned herein, the trial court judgment is affirmed.

AFFIRMED.


text:
    Lois C. BLANCHARD, et al. v. A-1 BIT AND TOOL COMPANY, INC., et al.
    No. 12129.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1981.
    Wayne C. Giordano, Belle Chasse, for plaintiffs-appellees.
    Rutledge & Associates, Edmond J. Harris, Metairie, for defendants-appellants.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   CHEHARDY, Judge.

Defendants, A-l Bit and Tool Company, Inc. (A-l) and Hartford Accident and Indemnity Company (Hartford), appeal only that part of a judgment in favor of plaintiffs, Lois C. and Ivy Blanchard, and against the defendants, awarding Mrs. Blanchard $25,000 for her past pain and suffering and $35,000 for future pain and suffering; awarding Mr. Blanchard $23,633, less a credit of $2,500 stipulated by the parties as having already been paid by the defendants, or the net sum of $21,133, for past loss of Mrs. Blanchard’s wages; and awarding Mrs. Blanchard $65,000 for future loss of wages.

Although plaintiffs, by brief, argue conversely that these amounts should be increased, plaintiffs have not filed an answer to the defendants’ appeal and, therefore, such increases cannot be considered by this court.

It was stipulated by the parties at the district court level that the defendants were liable to Mrs. Blanchard in this matter in that the driver of a vehicle belonging to A-l, and the assured of Hartford, was the sole cause of the accident under the following stipulated facts: Mrs. Blanchard was driving a 1972 Oldsmobile which was stopped at the highway intersection of La-palco Boulevard, as it connects with Behr-man Highway and the Belle Chasse Highway. The vehicle was rear-ended by the driver of a 1-ton truck belonging to A-l, and the Blanchard car was knocked 15 feet forward from the point of impact into the intersection to the point of collision.

The remaining issues of this case were tried in the district court on May 6, 1980. Dr. Robert A. Fleming, Mrs. Blanchard’s treating physician who was accepted by the court as an expert in orthopedic surgery, testified that he first saw her relative to the accident on May 1, 1976, the date she incurred the injury, and again on May 7, 1976. He intermittently saw her up until the date of trial, and he stated that on July 9, 1978 he evaluated her disability as a result of the accident at 15 percent; lxh percent as a result of neck problems and Tk percent resulting from low back involvement. He added that in his opinion she was having scarring within the substance of her muscles that was causing her difficulties. The physician stated when he last saw the plaintiff in April of 1980 she complained of discomfort in the back of her neck and she did have limitation of motion both in her neck and low back. He did not feel she could return to work as a janitor, the job she had held for four years prior to and up until the time of the accident.

Dr. Fleming also said he had given Mrs. Blanchard what he termed the “straight leg raising test” many times and that she always complained of pain in her lower back. He added this indicates either scarring within the substance of the muscle or symptomatic degenerative discs. Dr. Fleming noted that although Mrs. Blanchard might recover from her soft tissue injuries, it was improbable because patients with muscular injuries, if they are going to improve, usually do so within a year and a half or two years after the injury.

Dr. Fleming testified that Mrs. Blanchard is able to do some types of work although she can no longer perform the duties of a janitor. He also stated his findings of muscle spasm in this plaintiff were equivocal, meaning she may or may not have had them. Regarding other possible reasons for Mrs. Blanchard’s limitation of motion, Dr. Fleming said he had seen her a number of years before the accident for a degenerative disc; however, he added if she were performing her duties as a janitor without difficulty prior to the accident, he would have to say the accident was the cause of her current difficulties.

Mrs. Blanchard testified she was 43 years old at the time of the accident and 47 at the time of the trial. She stated she had a tenth grade education. For four years pri- or to the accident the plaintiff said she worked as a school janitor and she had missed no work at all as a result of her back. She also said that after the accident she did not attempt to return to work as a janitor, but she did work from April through November of 1979 in a sandwich shop for three hours a day, five days a week. She said, however, she stopped working there because she was experiencing back and neck pain, and she added that at the time of trial she was taking pain medication.

Dr. Phillip H. Meyers, an expert in ther-mography and radiology, testified that “thermography is and can be a graphic representation of pain objectively” and that on April 26, 1978 Mrs. Blanchard had thermo-grams of the lumbar cervical and spine regions and lower extremities, which were personally reviewed by him. He further testified that the findings were consistent with irritability in the neck region and the findings in the lumbar region were consistent with nerve root irritation. Also he said that exactly where the patient complained of pain there were abnormal thermographic patterns.

Dr. Carl F. Culicchia, a neurosurgeon, said upon taking a history and examining the plaintiff he concluded there was no neurologic injury, disease or primary neuro-logic disorder accounting for the patient’s symptoms. He added there were no objective, mechanical findings and the subjective findings were inconsistent. Although he stated the patient was able to sit up on the examining table with her legs outstretched before her so as to form a 90-degree angle between her body and legs (without ’".er reporting pain), this was denied by Mrs. Blanchard at.the trial.

Reports from Dr. R. C. Llewellyn stated he was convinced Mrs. Blanchard’s problems were orthopedic but that she did not have a neurosurgical disability, seemingly confirming the findings of Dr. Fleming. Dr. Irving Redler also stated in his report the plaintiff complained of pain in the lower back during the straight leg raising test.

Dr. Melvin Wolfson, accepted by the court as an expert in the field of economics, and particularly in evaluation of loss and earning capacity in relation to age, calculated wages lost by Mrs. Blanchard from the date of the accident to the trial date totaled $25,133. Subtracting the $1,500 she earned in 1979, he concluded the net amount was $23,633. Dr. Wolfson explained his calculations were based on her gross income because he did not add in fringe benefits which he said would offset taxes withheld from her gross pay.

Based on the U. S. Department of Labor, Labor Force Report Number 187, Dr. Wolf-son also said the expected work life from date of trial for a lady of Mrs. Blanchard’s age is approximately 14 years, although her life expectancy would be approximately 33 years. He said he multiplied her gross pay by 12 to get an amount of $8,220 per year. He discounted this at 5 percent and the total future losses were concluded by him to be $81,366. Discounted by an interest rate of 7V2 percent, he valued future lost wages to be $69,780. All of the above calculations, however, were predicated on allowing for no raises in pay whatsoever. Dr. Wolfson also said assuming a 3 percent yearly increase in wages over the work life, discounting it at 5 percent the present day value would be $97,011, and at 7V2 percent, the value would be $82,200. He added also assuming no increase in wages but also assuming the plaintiff could earn $1,500 per year, with a 5 percent discount the figure would be $64,341 and with a percent discount, $55,179; and he said also assuming a 3 percent yearly increase in the actual wages she would earn ($1,500 a year), discounting at 5 percent, would leave a figure of $76,700, whereas discounting at 7% percent would be $65,000.

Letters from the superintendent of the Plaquemines Parish School Board, confirming Mrs. Blanchard’s rate of pay as $433.79 monthly at the time of the accident, as well as raises given to persons employed in the same capacity since the accident date, are part of the record before this court.

In giving his very well written reasons for judgment, the district court judge said in part:

“From all of the medical testimony and evidence submitted, this Court is firmly convinced that this is one of those very unusual soft tissue injuries which do not heal as usual and produce permanent injuries and that Mrs. Blanchard’s injuries that she suffered immediately after the accident, which she has been suffering for the last four years, and which she now suffers, and will suffer in the future, are a direct result of the accident. The Court relies heavily upon the testimony of the treating physician, Dr. Robert Fleming, an orthopedic surgeon, who also treated this lady for some back pains in 1969. Dr. Fleming testified that Mrs. Blanchard’s injuries were soft tissue injuries and her main problem consisted of severe limitation of motion of both the neck and the back — and this Court noticed on the witness stand that Mrs. Blanchard could not rotate her neck further than 30 or 50 degrees in one direction or the other.
“Dr. Fleming also testified that he felt the best probability at this time was that if Mrs. Blanchard failed to recover from these injuries in four years (when a normal recovery time from such injuries is six weeks to six months) that she would not now recover, and that she would have these injuries permanently. He further testified that in his opinion she had a 15% permanent disability of the body as a whole, assigning 7V2 per cent to the neck and 7Vfe per cent to the back. The Court is further convinced from the continuous history given to Dr. Fleming by Mrs. Blanchard, by the letters from L. M. Tins-ley and Raymond Shetley, respective superintendents of the Plaquemines Parish School Board, introduced into evidence, and from the testimony of Mrs. Blanchard herself, whom the court felt to be honest, truthful and sincere, that her injuries and her 15 per cent permanent disability are permanent.
“The Court is also of the opinion, from the same evidence and from the fact that before the accident, Mrs. Blanchard successfully worked for eight years, four years of which were as a janitor at the Belle Chasse High School doing relatively hard manual work and was also able to do all of her own housework, all without any difficulty or pain, whereas after the accident she is severely restricted in these activities, that these disabilities are caused solely and only from the injuries received in the accident, and have nothing to do with the degenerative back problem which she had in 1969, and does not result from any other cause.
“The Court was particularly unimpressed with the testimony of Dr. Carl Culicchia, who apparently testified without proper medical notes and who insisted on confining himself to stating that he could find nothing wrong ‘neurologically’ with Mrs. Blanchard. There was obviously a great deal wrong with this lady and as Dr. Llewellyn found, and he also relied heavily upon the opinion of the treating physician, Dr. Fleming. Dr. Redler saw the patient one time and the Court was likewise not impressed with his report as compared to the treating physician.
“The deposition of Dr. Philip Meyer tended to corroborate the injuries found by Dr. Fleming and his opinions.
“The Court is further convinced that Mrs. Blanchard is permanently disabled from performing her job as a janitor at Belle Chasse High School or from doing any type of work requiring any manual labor, such as sweeping, mopping, lifting, etc., but that she probably can do some type of light work, such as working in a sandwich shop for a few hours a day, which she previously was able to do since the accident.
“For the pain and suffering incurred from her injuries to date, including confinement for two different periods in the hospital and subjecting herself to many medical tests over a period of four years, the Court feels an award of $25,000 is adequate.
“For further future pain and suffering incurred by Mrs. Blanchard, over a life expectancy of 33 years (as testified to by Dr. Melville Wolfson), the Court feels an award of $35,000 is just and adequate, being approximately $1,000 per year.
* * * * * *
“For lost wages of Mrs. Blanchard since the date of the accident until the present time, the Court is granting an award to Mr. Ivy Blanchard as head and master of the community of $23,633.00, in accordance with computations testified to by Dr. Melville Wolfson, an expert in the field of economics, and evaluation of lost earning capacity, less a credit of $2,500 previously paid by defendants, in accordance with the stipulation entered into by the parties, or the net sum of $21,133.00.
******
“For future loss of wages, the Court is going to grant an award of $65,000 in accordance with the computations by Dr. Wolfson which assumed that the plaintiff would have a life-work expectancy of fourteen (14) years, that her wages earned, as of those last earned as a janitor for the Belle Chasse High School, would increase at the rate of 3%, annually, including inflation and other factors, and which further assumed that she could earn approximately $1,500.00 per year doing light work a few hours a day such as she had done after the accident, which would also increase at the rate of 3% annually, which, in total sum, would be discounted at Tk% annually because of her opportunity to invest the monies in the future, thus giving a present day discounted value of $65,000.00. Thus, Mrs. Blanchard is receiving a total award of $125,000.00 ($60,000 plus $65,000.00).
“All of the above sums, except the experts’ fees, will be subject to legal interest from date of judicial demand until paid.”

In the case of Reck v. Stevens, 373 So.2d 498 (La.1979), the court articulated the standard of appellate review when the issue of quantum is before that court on appeal and stated at 501:

“Before a trial court award may be questioned as inadequate or excessive, the reviewing court must look first, not to prior awards, but to the individual circumstances of the present case. Only after analysis of the facts and circumstances peculiar to this case and this individual may a reviewing court determine that the award is excessive.
“With regard to appellate review of the much discretion of the trier of fact in the award of general damages, La.C.Civ.P. art. 1934(3), we stated (after exhaustive review of the facts, and reversing the appellate court for disturbing (on the basis of prior awards) the trier of fact’s award) in Lomenick v. Schoeffler, 250 La. 959, 200 So.2d 127, 132 (1967) (Italics ours):
“ ‘The law is plain and means what it says, and it is the duty of all appellate courts to follow it. Under this rule the amount of damages assessed by the judge or jury should not be disturbed unless the appellate court’s examination of the facts reveals a clear abuse of the discretion vested in the trial court. . . . The facts and circumstances in the other neck injury awards, relied upon by respondent as showing that this award was all out of proportion with the previous awards for similar injuries, causes them to have little or no relevancy for purposes of demonstrating the excessiveness of this award.’
“Thus, the initial inquiry must always be directed at whether the trier court’s award for the particular injuries and their effects upon this particular injured person is, a clear abuse of the trier of fact’s “much discretion,” La.Civ.C. art. 1934(3) in the award of damages. It is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review, for articulated reason, be considered either excessive, Carollo v. Wilson, 353 So.2d 249 (La.1977); Schexnayder v. Carpenter, 346 So.2d 196 (La.1977), or insufficient, Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967). Only after such determination of abuse has been reached, is a resort to prior awards appropriate under Coco [v. Wilson Industries, Inc., 341 So.2d 332 (La.)] for purposes of then determining what would be an appropriate award for the present case.
* * * % * *
“However, absent an initial determination that the trial court’s very great discretion in the award of general damages has been abused under the facts of this case, the reviewing court should not disturb the trier’s award. Wilson v. Magee, 367 So.2d 314 (La.1979).”

In the case before us, we cannot find that clear abuse of discretion on the part of the district court judge that would allow us to disturb the awards of damages made by him. To the contrary, a review of all of the testimony in the record, as summarized above, reveals the trial court’s awards and determinations, as explained in his reasons for judgment, all have a reasonable basis.

For the reasons assigned, therefore, the district court judgment is affirmed.

AFFIRMED.


text:
    Marie MITCHELL v. STATE NATIONAL LIFE INSURANCE COMPANY.
    No. 12144.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1981.
    Rehearing Denied Dec. 18, 1981.

      Larry P. Boudreaux, Thibodaux, and Morris G. Becnel, Boutte, for plaintiff-ap-pellee.
    Watson, Blanche, Wilson & Posner, Charles W. Wilson, III, Baton Rouge, for defendant-appellant.
    Before BOUTALL, CHEHARDY and KLEES, JJ.
   CHEHARDY, Judge.

Defendant, State National Life Insurance Company (State National), appeals a district court decision in favor of plaintiff, Marie Mitchell, and against the defendant awarding the plaintiff $5,000, together with legal interest thereon from the date of judicial demand until paid in full and for all costs of the proceedings.

Plaintiff was the beneficiary of a life insurance policy of which her son, Herbert Vidrine, Jr., was the named insured. Under the section “Risks Excluded” contained in the said policy appears the following statement: “This Policy does not cover and no payment of any kind shall be made hereunder for bodily injuries or loss of life which are caused directly or indirectly, wholly or partly by: * * * (i) the intentional action of any person other than the Insured; * * On June 24,1978, Vidrine died as a result of gunshot wounds inflicted upon him by Chloe Lawler. State National subsequently denied coverage pursuant to the timely claim on the policy by Ms. Mitchell, resulting in this lawsuit.

A statement made by Chloe Lawler in the presence of detectives for St. Charles Parish, describing the events that led up to the shooting as well as the shooting itself, was introduced by joint stipulation of the parties at the trial on the merits of this case. Lawler explained in the statement that she had been living with Vidrine since August of 1977, and the Thursday before the shooting he had gone to court to get a divorce from his wife. She said he began drinking that day and continued drinking the following day, leading to his cursing her and pushing her around. She said he was later arrested by police, but he then made a phone call to her stating he was going to kill her. A friend then loaded a gun and gave it to her to protect herself if he came.

The events of the following day as related in a portion of her statement were:

“Saturday morning, at about 8:00 AM in the morning Herb called and told me that he was at the Creole Kitchen and that he was coming home. I told him to come home. He then got mad and started to threaten me again. At about 9:30 AM same day, Saturday morning, Herb came into my house and he was well loaded. He started to threatening me and pushed me around a little bit and cursed me. This went on for two to two and a half hours. He kept getting crazier and talking to God and Jesus. I was ' being silent and trying to stay out of his way. We were both sitting at the table in the dining room. I was sitting by the patio door. Herb was sitting directly across from me. He started to lean over like he was passing out. He fell out of his chair on the floor onto his back. He was semiconscious and was talking to Terry, his daughter who lives in Baton Rouge. I saw that his mind was drifting and decided to get the hell out of there. I stept [sic] over him and * * * got my purse off the desk. The gun was in the purse. I had intentions to walk around the corner to get to the hall to get out of the house to call the police. Right when I turned to leave, I was in the bedroom doorway, I saw Herb jump up like he came out of another world. He was cursing and came toward me. I reached in the purse, got the gun out, and shot at him till I wouldn’t shoot any more. When the gun quit shooting I ran out of the house. I ran to All State which is located in the Majoria Shopping Center. I went inside to use the phone but all the lines were tied up. I went to the store next door and called the police. I went on the corner and waited for the police. A police car passed, then another came so I flagged it down and went back to my house with the police.”

The record reflects that a true bill against Chloe Lawler was subsequently returned by the Grand Jury, and she later pleaded guilty to the charge of manslaughter. She was sentenced to five years in the Department of Corrections at hard labor, but said sentence was suspended and she was placed on active probation for five years.

In giving his reasons for judgment from the bench, the trial court judge stated:

“ * * * [T]he issue at hand is in reference to a policy of insurance and the proceeds, and of course there is no question as to who the beneficiary is and the fact that the person died, and the policy is in evidence. The difficulty comes whether or not under the terms * * * the policy is payable because as the insurance company indicates * * * there was intentional action of another person which caused the death of the decedent.
“The record reflects the person died of a gun-shot wound, and as the particular defense attorney introduced the record of the manslaughter charge of R.S. 14:31 and the date of April the 24th where the person had pled guilty for criminal purposes and received five years Department of Corrections at Hard Labor which was suspended. The statement of the person who killed the individual indicated that what had happened is more to an extent of justifiable homicide in which the individual came at her and for fear of her life, protected herself and shot him. The question is that, whether that is an intentional killing which would fall within the ambit of the policy to deny recovery. Also the other issue is that on the plea of guilty, and of course at the present time, this court having the benefit of being the one that sentenced the lady, the fact that a killing had taken place, a homicide, the fact that a person had died would warrant that that particular person serve some time in the state penitentiary. However, due to the fact that the charge by the District Attorney on the Bill of Information which was a Grand Jury indictment, the Court took into consideration the justifiable homicide aspect of it, and now the defense with the mitigating factors which warranted that the particular individual did not spend any time in any particular jail or be incarcerated. So the question is whether or not the manslaughter conviction which is in the boy-kin shows her rights were explained and she pled to this, whether or not that particular provision overcomes the statement of the individual, stating that it’s more or less justified. And of course if we find the latter, then we find that there should be recovery for, to the beneficiary. If we find the former, then of course we find no beneficiary recovery. “This Court is of the opinion on the criminal side, taking into consideration the case it has before it, and I’m showing that this case will be followed down on a line on appeal, this court is of the opinion for the reasons given that there should be recovery for the beneficiary in the amount as stated because this court is of the opinion that based upon the evidence heard that within the portions of the policy that there was no recovery action of anyone, and recovery should be had.”

We cannot agree and reverse.

In the case of Culotta v. Security Industrial Insurance Co., 325 So.2d 863 (La.App. 2d Cir. 1976), the plaintiff, while on duty in a liquor store where he was employed, was shot by an unknown bandit during a robbery of the store. The plaintiff did not resist the robber in any way, yet the assailant pointed his revolver directly at Culotta and shot him. In holding that the policy’s exclusionary clause, similar to the one in the present case, precluded coverage on the plaintiff’s injuries, the court said at 864— 865:

“Plaintiff-appellant alleged the trial judge erred in his determination that the armed robber intended to inflict bodily harm on plaintiff; that, if this is a finding of fact, it would have to be assumed the armed robber went to E-Z Liquor Store, not with the intention of robbing the store but rather with the intention of inflicting injury on the insured, and that the robbery was incidental to murder rather than murder being incidental to robbery.
* * * * * *
“Defendant cites the case of Tornabene v. Atlas Life Insurance Company, Inc., 295 So.2d 10 (La.App. 4 Cir. 1974), in which the court reviews most of the Louisiana cases involving policies excluding from coverage injury or death resulting from an intentional act of a person other than the insured. In rendering judgment for plaintiff, the court held the insurance company failed to carry the burden of proving the killing was intentional or that the deceased was the intended victim.
“Defendant acknowledges the burden is on the insurer to prove the victim was the intended victim. However, defendant urges that in the instant case all questions are clearly and concisely answered by the police report and that the situation was further clarified by the portion of the stipulation which states: ‘Plaintiff, Joe E. Culotta, did not resist the robber in any manner and yet the robber pointed his revolver directly at Mr. Culotta and fired the revolver at him.’
* * * * * *
“In Tornabene the court, commenting on the decision in Wildblood v. Continental Casualty Co., 182 La. 202, 161 So. 584 (1935), stated that ‘this opinion [Wild-blood] by implication of its reasoning may place upon the plaintiff the burden of showing “reasonable probability” that the intended victim was another person. However, we do not so interpret the case. ... We interpret Wildblood simply as holding that the intentional act exclusion does not apply if the actual victim was not the intended victim.” ’
“The interpretation of exclusionary clauses in policies such as the one here in question has been judicially refined and there now emerges a fairly well-defined rule. In those cases in which the evidence shows that the insured, though violently killed, was thought by the assailant to be a person other than the individual against whom the violence was directed, that is, if the assailant was mistaken in the identity of his victim, an exclusion such as contained in the instant policy would not prevent recovery. However, if the insurer carries the burden of proving that (1) the assailant recognized the insured as an adversary or was not mistaken in the identity of his victim; and (2) he intentionally inflicted an injury on the insured, neither the latter nor his survivors can recover under a policy containing ‘an intentional act’ exclusion. Briley v. Union National Life Insurance Co., 246 So.2d 265 (La.App. 1st Cir. 1971).
“In the instant case there is no evidence the robber shot the insured in the mistaken belief that he was some other person. On the contrary, the evidence, comprised of the police report and the stipulation, preponderates that the robber intended to shoot the person at whom he aimed the gun, who happened to be the insured.”

Similarly, in the case of Briley v. Union National Life Insurance Co., 246 So.2d 265 (La.App. 1st Cir. 1971) the insured was killed by a series of stab wounds inflicted by an assailant who testified that he did intend to stab the insured “because he was going to stab me.” The court decided that death of the insured was encompassed in the provisions of the exclusionary clause of the policy because it was not a case of mistaken identity on the part of the assailant and the wounds were intentionally inflicted by him upon the insured.

In the case of Cummings v. Universal Life Insurance Company, 286 So.2d 412 (La. App. 4th Cir. 1973), this court also held there was no coverage under a similar exclusionary clause where the assailant had stabbed the insured, regardless of the fact that the attacker had testified he acted in self-defense. The court said this issue was immaterial to that litigation because regardless of his motive the attacker intended his injuring act.

In Cummings, supra, the court also distinguished the case of Chambers v. First Nat. Life Ins. Co. of New Orleans, 253 So.2d 636 (La.App. 4th Cir. 1971). In that ease the insured was seated in a bar when the killer entered the bar from the insured’s rear, walked up to him and emptied a pistol into the insured’s back without ever seeing the insured’s face. There was no evidence suggesting any motive for the killing or even that the assailant knew the insured. Because of these circumstances the court in Chambers, supra, concluded that it was possible that the victim was not the intended one.

Obviously, the facts of Chambers differentiate it from Cummings, as well as the present case, where the attackers knew their victims, had a motive for the attack (even though the motive may have been that the assailant believed he was acting in self-defense), and the attacker intended to and actually did shoot or stab the person that the act was perpetrated upon.

For the reasons assigned, the district court decision against the defendant and in favor of the plaintiff is hereby reversed and it is ordered, adjudged and decreed that there be judgment in favor of the defendant, State National Life Insurance Company, and against the plaintiff, Marie Mitchell, dismissing her suit at her costs.

REVERSED.