text:
    HIGHT ENTERPRISES, INC. v. SMITH AND JOHNSON (SHIPPING) INC. and Smith and Johnson (Gulf) Inc.
    No. 13100.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 1982.
    Rehearing Denied Nov. 19, 1982.
    Bernard J. Rice III, Gretna, for plaintiff-appellee.
    Ralph E. Smith, Deutsch, Kerrigan & Stiles, New Orleans, for defendant-appellant.
    Before BARRY, BYRNES and CIACCIO, JJ.
   BARRY, Judge.

This is a suit to collect the balance on a dredging contract. Judgment was rendered against Smith and Johnson (Gulf) Inc. (“Gulf”) (who filed for bankruptcy) and Smith and Johnson (Shipping) Inc. (“Shipping”) who appeals contending it was not a party to the contract. The district court found Shipping liable as an apparent or undisclosed agent of either Gulf or Armasal Line, the company for which the dredging was done.

The basic facts and the amount claimed are not in dispute. Shipping is a New York steamship brokerage corporation which had a New Orleans office at 904 First National Bank of Commerce Building prior to October 8, 1979. Gulf was formed with Shipping as a 50% shareholder and from October 1,1979 Gulf was headquartered at 709 Julia Street in New Orleans. It handled all activities in this area; Shipping ceased operations in the Gulf Coast area at that time.

One of Gulfs clients was Armasal, a now-bankrupt corporation which operated a steamship service between the Gulf Coast and Latin America. Armasal’s cargo was handled through the wharf facilities at the Dwyer Road Terminal which were leased in Armasal’s name and operated by Gulf.

In March, 1980, Captain Hansen, a Gulf employee, telephoned Massey, an independent dredging contractor, to arrange for dredging at the Dwyer Road slip. Plaintiff Hight Enterprises, Inc., acted as billing and administrative agent for Massey, who dealt directly with Hansen. Although Hansen was a Gulf employee and never worked for Shipping, he referred to his employer as simply “Smith and Johnson” in his dealings with Massey. Neither Massey nor Hight’s employees were aware there were two separate corporations (Gulf and Shipping) until after the dredging was completed. Both bills for dredging were addressed to “Smith and Johnson” at the Dwyer Road Terminal.

Around June 4, 1980, Massey went to Gulf’s Julia Street office to pick up a check for partial payment for the dredging. With the check, he was given some invoices to Hight on Smith and Johnson (Shipping) Inc. billing forms which bore the old First National Bank of Commerce Building address for Shipping. The invoices had been issued in error, as Gulf’s personnel admitted, when Massey and his attorney went to Gulf’s Julia Street office a month later to clarify those invoices. Mr. Labbe, vice president of. Gulf, acknowledged the billing to Hight was a mistake and withdrew the bill. At trial Labbe explained Gulf was using up an excess supply of Shipping’s old billing forms; Gulf’s name and address were supposed to be stamped on the old forms, but the stamp had not been used on those particular invoices.

Evidence at trial showed the sign on Gulf’s Julia Street office read, “Smith and Johnson, established 1927,” without differentiating between the two corporations. Gulf was not in existence until 1979.

The record also shows that service of plaintiff’s supplemental petition, directed to Smith and Johnson (Shipping) Inc., was delivered to the Julia Street address, and accepted by a Gulf secretarial employee.

All of plaintiff’s witnesses agreed that, in their contacts with Gulf’s employees, the corporation was referred to as simply “Smith and Johnson,” not “Smith and Johnson (Gulf) Inc.,” and that they were unaware of Gulf and Shipping as separate entities. Hansen, Labbe and East — the three Gulf employees who testified — admitted they usually identified their employer as just “Smith and Johnson.” No employees or representatives of Shipping were in contact with Massey or Hight in connection with the dredging contract or plaintiff’s claim, and no Shipping personnel testified at trial.

SHIPPING’S LIABILITY AS AGENT

In somewhat ambiguous Reasons for Judgment, the trial court found Shipping acted as either apparent or undisclosed agent of Armasal or Gulf. We disagree and find no basis for holding Shipping liable under either agency doctrine. The “apparent authority” doctrine applies to situations in which the principal is held liable to third parties for acts of his agent which, although exceeding the agent’s actual authority, were done with the ostensible or apparent authorization of the principal. “The concern here is whether the principal did anything to clothe the agent with apparent authority to perform the act though no actual authority was given.” Pailet v. Guillory, 315 So.2d 893, 896 (La.App.3rd Cir.1975). (Emphasis ours). As the principal in this case would be either Gulf or Armasal whose liability is not in question, the theory of apparent authority cannot serve as a basis for liability of Shipping as an agent.

The doctrine of “undisclosed principal,” on the other hand, does provide support for holding an agent liable to third parties, but its application is restricted to persons with whom the agent has contracted without disclosing his status as agent and the identity of his principal. We do not question the current viability of that doctrine in Louisiana, which, as plaintiff points out, was recently reiterated by the First and Third Circuits. See Livingston Roofing Co., Inc. v. E.E. Rabelais & Son, Inc., 401 So.2d 1047 (La.App.3rd Cir.1981) and J.T. Doiron, Inc. v. Lundin, 385 So.2d 450 (La.App. 1st Cir.1980). We find, however, plaintiff’s reliance on those cases is misplaced.

In the cited cases, the alleged agent was the party with whom the claimant had actually contracted or transacted the business in question. In each instance, it was the agent who had been in contact with the claimant and who had actually incurred the obligation, which he later claimed had been done on the principal’s behalf and with the principal’s authority. Liability of an agent of an undisclosed principal must be predicated on actions of the agent under LSA-C.C. Art. 3013 which provides:

The mandatory is responsible to those with whom he contracts, only when he has bound himself personally, or when he has exceeded his authority without having exhibited his powers. (Emphasis added).

Thus, in order for Shipping to be liable as agent for either Armasal or Gulf (the undisclosed principals), the facts would have to show that Shipping dealt with plaintiff in some way in connection with the dredging agreement.

The learned Trial Judge’s oral Reasons for Judgment, and plaintiff-appellee’s brief, point to several items in support of the “undisclosed agency” theory. First, it is contended that the erroneous invoice to plaintiff on Shipping’s stationery indicated to plaintiff it was dealing with Shipping. The evidence shows, however: that the invoice was given to plaintiff at Gulf’s place of business by one of Gulf’s employees; that it was Gulf’s policy to stamp Gulf’s address on the old forms and Gulf’s personnel were in error in failing to correct the address and in billing Hight for monies not due; that the invoice had nothing to do with the subject dredging contract; and that the invoice was not given to plaintiff until after the dredging work had been contracted for and substantially completed. The only possible action taken by Shipping in connection with that invoice would be its implied permission to Gulf to use old Shipping billing forms. Any such consent would be conjectural and contingent at best, and has no bearing on the undertaking of the subject debt to plaintiff.

The sign at Gulf’s Julia Street office, which reads, simply, “Smith and Johnson, established 1927” is the next bit of evidence cited by the Trial Judge. The sign does not distinguish between Gulf and Shipping, and may be misleading in suggesting to the public that the company located there (Gulf) has been in existence since 1927. Again, however, there is no evidence that Shipping is responsible for the sign, which is not at Shipping’s former First National Bank of Commerce Building address. Further, as no representative of plaintiff ever visited the Julia Street office, and Massey’s two visits there were at least four months after the contract had been negotiated by phone and essentially completed, the sign does not implicate Shipping as an agent with regard to the subject debt.

Plaintiff-appellee places great reliance on the fact that a secretary employed by Gulf at the Julia Street office accepted service of plaintiff’s supplemental petition addressed to Shipping at Gulf’s office. However, there was no showing that Shipping authorized such acceptance or that Shipping “had an agent for service of process at 509 Julia Street,” as asserted in plaintiff’s brief. We find no merit in plaintiff’s argument that Shipping’s failure to except to that service proves it had appointed Gulf’s employee as its agent for service of process.

We feel it is clear, from the totality of the evidence, plaintiff’s representatives believed they were dealing with a local corporation named “Smith and Johnson” for which they undertook to perform. Neither Massey nor Hight inquired into the corporate name, status, financial condition, or stock ownership. Thus, although plaintiff was ignorant of the full name of the corporation for which Hansen worked (Smith and Johnson (Gulf) Inc.) there is no evidence plaintiff dealt with or believed it was dealing with, or relied on the corporate name or credit of, Smith and Johnson (Shipping) Inc. Liability of an undisclosed agent must be bottomed upon actions of the agent in dealings with the third party. The record does not support the Judge’s finding that Shipping acted as an agent or had any involvement with the subject contract.

SHIPPING’S LIABILITY AS SHAREHOLDER OF GULF

Although the trial court did not discuss or base its ruling on Shipping’s status as a 50% shareholder of Gulf, both plaintiff and defendant raised the issue in their briefs.

As defendant points out, the general rule is that a corporation is a distinct entity, separate from its shareholders. The shareholders are not liable for debts contracted by the corporation in the absence of fraud or disregard of the corporate entity. Louisiana Civil Code Arts. 435, 437 and LSA-R.S. 12:93(B); Liberto v. Villard, 386 So.2d 930 (La.App.3rd Cir.1980); Smith v. Moore, 347 So.2d 316 (La.App.4th Cir.1977); Lushute v. Diesi, 343 So.2d 1132. (La.App.3rd Cir.1977), modified on other grounds 354 So.2d 179 (La.1978); Kingsman Enterprises, Inc. v. Bakerfield Electric Co., Inc., 339 So.2d 1280 (La.App.1st Cir.1976).

Defendant concedes a creditor may “pierce the corporate veil” and hold a shareholder liable for debts contracted by the corporation, in certain exceptional circumstances. The situations in which this doctrine is applicable have been restricted to instances in which a shareholder either practices fraud upon a third party, through the corporate entity, or “disregards the corporate entity to such an extent that the individualities of the corporation and shareholder cease to exist; the corporation no longer exists as an individual distinguishable from the shareholder.” Liberto, supra, at 936.

There is no evidence of fraud in the record. The factors which constitute “disregard of the corporate entity” sufficient to “pierce the corporate veil” were delineated by the 1st Circuit in Kingsman Enterprises v. Bakerfield Electric Co., supra, and reiterated by the 2nd Circuit in Smith-Hearron v. Frazier, Inc., 352 So.2d 263, 265 (La.App.2d Cir.1977):

(1) Commingling of corporate and shareholder funds;
(2) Failure to follow statutory formalities required for incorporation and for the transaction of corporate affairs;
(3) Undercapitalization; and
(4) Failure to hold regular shareholder or directors meetings.

In seeking to establish “the mingling of the corporate identities and individualities” of Gulf and Shipping, plaintiff points to the facts upon which it relied in its “undisclosed agency” argument: (1) the sign at Gulf’s Julia Street office which said “Smith and Johnson, est. 1927” ’; (2) the acceptance of service on Shipping by one of Gulf’s secretaries; (3) Gulf’s use of Shipping’s invoice form in billing Hight in error; and (4) Gulf’s failure to apprise plaintiff of the existence of the two separate corporations.

Whether the corporate veil should be pierced is primarily a finding of fact. Liberto, supra. None of the traditional factors justifying piercing the corporate veil are present here. There is no evidence of commingling of funds, undercapitalization, failure to comply with statutory or corporate formalities, or fraud. The factors cited by plaintiff are not frequent, serious, or exceptional so as to warrant piercing the corporate veil to hold Shipping liable on Gulfs contract with plaintiff. As with the agent-principal theory, application of the “piercing the veil” doctrine in this case would be the reverse of the usual situation. The usual case involves action by a major shareholder for which the shareholder seeks to escape liability by hiding behind the corporate cloak. Bossier Millwork & Supply Co. v. D & R Constn. Co., 245 So.2d 414 (La.App.2d Cir.1971); Kingsman Enterprises, supra. The actions cited by plaintiff are all acts or omissions of Gulf, not its shareholder, Shipping. Furthermore, the circumstances enumerated by plaintiff are unrelated to the dredging contract between plaintiff and Gulf.

The purpose of “piercing the corporate veil” is to protect a creditor in his dealings with a shareholder who fails to distinguish, in such transactions, between the corporation and his identity as a shareholder. These facts do not present such a situation. Shipping never dealt with plaintiff at any time in connection with the dredging work. It is therefore irrelevant that plaintiff was unaware of the existence of Shipping as another corporate entity. Plaintiff believed it was dealing with a corporation, headquartered on Julia Street, by which Hansen was employed. Plaintiff’s ability to obtain judgment against that corporation, for nonpayment of plaintiff’s bill, was not affécted by whether the corporation involved was known as “Smith and Johnson” or “Smith and Johnson (Gulf) Inc.” Plaintiff admitted, however, it was ignorant of the existence of “Smith and Johnson (Shipping) Inc.” at the time it agreed to do the dredging and therefore could not have relied on Shipping’s credit or solvency. To allow plaintiff to pierce the corporate veil just because plaintiff’s debtor, Gulf, declared bankruptcy, and one of its major shareholders, Shipping, remains solvent, would contravene the policy behind both the corporation and bankruptcy laws.

Accordingly, the judgment of the district court is reversed and set aside and judgment is hereby entered in favor of defendant, Smith and Johnson (Shipping) Inc., and against plaintiff, Hight Enterprises, Inc., dismissing the appeal, at plaintiff’s costs.

REVERSED.


source: Caselaw Access Project

author: BARRY, Judge.

license: Public Domain

text:
    Clara J. Suhor, Wife of/and Robert G. SUHOR v. Ignacio MEDINA, Jr., M.D., Mercy Hospital, et al.
    No. 13144.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 1982.
    Rehearing Denied Nov. 19, 1982.

      Barbara Ziv Greenbaum, Castaño & Greenbaum, New Orleans, for plaintiffs-appellants.
    George E. Cain, Lemle, Kelleher, Kohl-meyer & Matthews, New Orleans, for defendants-appellees.
    Before BARRY, BYRNES and CIACCIO, JJ.
   BARRY, Judge.

This is a medical malpractice suit wherein recovery is sought against a hospital due to the alleged negligence of the Emergency Room physician. Plaintiffs appeal a summary judgment which is based upon a written contract that specified the physician was an independent contractor and the hospital did not have supervisory control over him.

On November 27, 1979 the plaintiff wife was treated in the Emergency Room of Mercy Hospital by Dr. Norman J. Robinson. Plaintiffs claim malpractice by Dr. Robinson and sued the hospital urging vicarious liability under the doctrine of respondeat superior. In support of the hospital’s motion for summary judgment it filed an affidavit by the administrator which stated that Dr. Robinson “is not and never has been the agent or employee of the Hospital and the Hospital has never had authority to oversee or supervise the exercising of professional medical judgments of the emergency room physicians.” The hospital submitted a copy of its employment contract with Dr. Robinson which specifies the physician is an independent contractor.

Plaintiffs’ opposition to the summary judgment motion is centered on Dr. Robinson’s deposition and various hospital documents secured by discovery.

The hospital relies upon this court’s holding in Badeaux v. East Jefferson Hospital, 364 So.2d 1348 (La.App. 4th Cir.1978), a similar malpractice suit against an Emergency Room physician for whom the hospital was allegedly vicariously liable. In Ba-deaux, as here, the hospital argued the physician was an independent contractor based upon its administrator’s affidavit attesting to the hospital’s lack of supervision over the physician’s exercise of independent medical judgment. However, unlike this case, the plaintiff in Badeaux failed to file countervailing affidavits or any documents and the court concluded, as a matter of law, that plaintiff could not rely solely on the allegations of his petition (see LSA-C.C.P. Art. 967) and summary judgment was therefore appropriate. We also note that the defendant physician in Badeaux was an employee of a medical corporation with which the hospital had contracted for medical services, a fact clearly distinguishable from Dr. Robinson’s relationship with Mercy Hospital.

The hospital’s reliance on Badeaux as to the appropriateness of summary judgment is misplaced. The administrator’s affidavit presents ultimate or conclusory facts and conclusions of law which cannot be utilized on a summary judgment motion. Thompson v. South Central Bell Telephone Company, 411 So.2d 26 (La.1982). Our appreciation of the employment contract and the facts contained in Dr. Robinson’s deposition does not present any basis which would support summary judgment in favor of the hospital; the lower court judgment to the contrary is clearly wrong.

Dr. Robinson’s contract with Mercy Hospital designates him as “Co-Director” of the Emergency Room Department and requires that he “stand ready and available on a physician-on-duty and a physician-on-call basis” to perform emergency room services. Consultations are restricted to patients’ personal physicians and those approved by the hospital. Significantly, Dr. Robinson and three other physicians “shall constitute full-time physician staffing of the [Emergency] Department” insuring twenty-four hours per day coverage. Also, Dr. Robinson “shall be physically present in the Hospital” while on duty “until relieved by the next regularly scheduled or on-call physician.” Dr. Robinson is paid monthly based upon a set annual salary. All fees for his services are billed, collected and retained in full by the hospital. The contract prohibits Dr. Robinson from “engaging in the private practice of medicine” and characterizes his status “as a full-time, accredited, licensed and qualified physician staffing the Emergency Department.”

All of Dr. Robinson’s services are rendered on the hospital premises wherein he is furnished (at hospital expense) physical facilities, equipment, supplies and support personnel.

The Constitution and Bylaws of the hospital medical staff provides for an Emergency Room Committee of three physician personnel of the Emergency Room. The Emergency Room Committee also implements policies governing the care of patients in the Emergency Room. According to the hospital’s Policy Book the Emergency Room functions under the Department of Administration.

Dr. Robinson’s professional activities are subject to compliance with the Emergency Department’s Policy and Procedural Manual which is promulgated by the hospital and binding upon all staff physicians. The manual comprises approximately 80 pages of detailed medical and procedural directives for treatment of virtually every type of medical emergency.

“Masters and employers are answerable for damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.” LSA-C.C. Art. 2320.

The definition of an employee is set forth in LSA-C.C. Art. 163:

Free servants are in general all free persons who let, hire, or engage their services to another in this state, to be employed therein at any work, commerce or occupation whatever for the benefit of him who has contracted with them, for a certain price or retribution or upon certain conditions.

We are cognizant that in evaluating the sufficiency of proof relating to employment, courts have been mindful that, by its nature, vicarious liability mandates strict construction. Roberts v. State of Louisiana, Through the Louisiana Health, etc., 404 So.2d 1221 (La.1981). In Roberts our Supreme Court said the single most important factor to consider in deciding whether the employer-employee relationship exists for the purpose of Article 2320 is the right of the employer to control the work of the employee, citing Blanchard v. Ogima, 263 La. 34, 215 So.2d 902 (1968) which stated:

It is the right of control of the time and physical activities in the other party and the existence of a close relationship between the parties which determine that one is a servant.

In a well-reasoned discussion of the distinction between an agent and servant, Justice Barham wrote:

“Servant” must be interpreted as that particular kind of agent who has a very close economic relation to, and is subject to very close control by, the principal. A servant is one who offers his personal services for a price. He is an integral part of his employer’s business and must submit to the control of his physical conduct as well as of his time. A non-servant agent contributes to the business of his employer, but he is not such a part of it that his physical acts in the time to be devoted to the business are subject to control. Blanchard v. Ogima, supra, 215 So.2d at pp. 906. (Emphasis in original).

In summary, Dr. Robinson works full time and exclusively for Mercy Hospital, must be present while “on duty”, is paid a contractual, set salary but does not receive any patients’ billings collected by the hospital. Dr. Robinson has no expenses to pay, works according to a pre-determined schedule, has administrative responsibilities over hospital personnel, and must perform emergency services “to all who present themselves” and to in-patients when needed.

The hospital argues that social security is not withheld from Dr. Robinson’s salary (which saves the employer money) and points to the requirement that Dr. Robinson maintain malpractice insurance (another employer savings). Neither contention is persuasive.

Finally, the hospital strongly contends it has no liability or responsibility as an employer because it did not exercise control over Dr. Robinson’s professional medical judgments. We disagree. We conclude the facts in this particular case are overwhelming and leave no doubt that Mercy Hospital controls the working time and physical activities of Dr. Robinson. The employment contract relied upon by the hospital spotlights the extremely close relationship between the parties. This physician has offered his personal services for a stipulated sum and is voluntarily subject to supervision and various administrative controls. Dr. Robinson is an integral part of the hospital’s business and his close, personal economic relationship is obvious. The hospital’s and physician’s self-serving designation of “independent contractor” is a transparent shield designed solely to circumvent the law. The totality of these facts mandates that Dr. Robinson be categorized as an employee of Mercy Hospital which is answerable for any damages which occur in the exercise of his functions.

It is generally recognized, and we hold, that where a physician is the employee of a hospital sued by a patient for particular injuries negligently inflicted in the course of the patient’s treatment, the hospital may be held liable for injuries sustained by the patient under the doctrine of respon-deat superior. Wells v. Woman’s Hospital Foundation, 286 So.2d 439 (La.App. 1st Cir.1973) writ refused 288 So.2d 646.

Accordingly, the district court’s summary judgment in favor of Mercy Hospital of New Orleans is reversed and set aside and this case is remanded for further proceedings according to law and consistent with the views expressed herein.

REVERSED AND REMANDED.

ON APPLICATION FOR REHEARING

Mercy Hospital’s application for rehearing states that this Court “apparently” held that Dr. Robinson was a hospital employee, then concludes with the request that we vacate our finding that Dr. Robinson was a hospital employee.

We said: “The totality of these facts mandates that Dr. Robinson be categorized as an employee of Mercy Hospital .... ” (emphasis added). Summary judgment was reversed and the case remanded.

Nowhere does the opinion exclude evidence at trial on the doctor’s employment status. We merely pointed out that the hospital administrator’s affidavit and the doctor’s deposition were self-serving and a transparent effort to circumvent liability. Based on the record that conclusion is clearly reasonable.

This Court never granted a summary judgment against the hospital. The application for rehearing is denied.


author: KLEES, Judge.

text:
    Charles J. BABINGTON v. STEPHENS IMPORTS, INC., and Safeco Insurance Company.
    No. 13078.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 1982.
    Rehearing Denied Nov. 19, 1982.
    Turner & Young, P.C., New Orleans, for defendants-appellants.
    D’Alton Williams, New Orleans, for plaintiff-appellant.
    Before GULOTTA, KLEES and ISRAEL M. AUGUSTINE, Jr., JJ.
   KLEES, Judge.

Plaintiff, Charles J. Babington filed suit against Stephens Imports, Inc., for the return of his vehicle which had been left with Stephens for repairs. He also sought damages of $25.00 per day for loss of use of the vehicle and attorneys fees or alternatively for the return of the automobile without charge and the damages for loss of use. Stephens answered the suit, reconvened for its repair bill and sought $5.00 per day storage fees.

The trial court ordered Stephens to return the vehicle to Mr. Babington upon his payment of the repairs, awarded Stephens storage charges of $5.00 per day from September 17, 1979 until the date of actual payment, and ordered a credit in favor of Babington of $15.00 per day for loss of use of the vehicle from October 1, 1978 until September 17, 1979.

Both parties appeal. The issues presented on appeal are:

1) Did the trial court err in finding that Stephens demanded an improper amount for the repairs to the Babington vehicle, thereby losing its repairmen’s privilege and right of retention?

2) Did the trial court err in awarding damages to Babington for loss of use?

3) Did the trial court err in awarding damages to Stephens for storage charges?

4) Did the trial court err in refusing to award Babington attorney’s fees?

The facts of this case are as follows:

On June 9, 1978, Charles J. Babington’s automobile, a 1970 Mercedes was damaged when it was struck in the rear by a vehicle owned by Joseph Hickman and insured by Safeco Insurance Company.

In July of 1978, Babington brought his automobile to Stephens Imports, Inc., for a damage repair estimate. Fine Appraisal Service, who represented Safeco Insurance, also computed a damage estimate. Stephens offered to do the work using the Fine estimate, subject to certain adjustments. Safeco agreed, and Stephens began to repair the automobile.

During the course of the work, a disagreement arose between Stephens and Fine Appraisal over the replacement of a rear quarter panel. Stephens felt replacement was necessary while Fine Appraisal would authorize only additional time and material for repairs. The panel was ultimately replaced and not repaired.

Repairs on the automobile were completed in September of 1978. Due to the dispute over the quarter panel and for other reasons not clear from the record, Safeco denied Babington’s entire claim. He then filed suit in St. Tammany Parish against Safeco and its insured, Joseph Hickman. Babington sought release of the automobile from Stephens but Stephens refused to release the car without payment.

Babington filed suit in Orleans Parish alleging the amount of the repair work to be $5,123.64 and requested a cancellation of the repairmen’s lien and enforcement of the alleged agreement on the part of Safeco to pay for the repairs performed by Stephens. Babington also sought to recover $25.00 per day as damages for the loss of use of his automobile, attorney’s fees and court costs. Stephens reconvened for repair cost in the amount of $5,123.64, asserting that it held and continued to hold the automobile pursuant to its repairmen’s privilege. Stephens also sought storage fees of $5.00 per day, interest and costs. Approximately six months after answering Babington’s suit, Stephens informed Safeco and Babington that the correct cost of repairs was only $3,600.47 and not $5,123.64 as prayed for in its reconventional demand.

Safeco Insurance Company was dismissed before trial, after settlement with Babing-ton. The trial on the merits proceeded against Stephens and subsequently judgment was rendered by the trial court.

Privilege Issue

Louisiana Civil Code Article 3217(2), states in relevant part:

The debts which are privileged on certain movables are the following:
* * * * * *
2. The debt of a workman or artisan for the price of his labor, on the movable which he has repaired or made, if the thing continues still in his possession.

Louisiana Revised Statute 9:4501, provides in part:

Any person operating a garage or other place where automobiles or other machinery are repaired, or parts therefore are made or furnished, has a privilege upon the automobile or other machinery, for the costs of repairs made, parts made or furnished and labor performed.

From the above provisions, it is clear that Stephens Imports had a lien and privilege against the Babington automobile for the amount due for labor and materials in repairing the car.

However, the trial judge, in his Reasons for Judgment, stated that Stephens lost its right to retain possession of the vehicle because it had initially demanded a sum greater than the actual bill for repairs. No authority for this conclusion was cited.

The general rule is that the repairman or artisan has the right to retain possession until paid. Thompson v. Warmack, 231 So.2d 636 (La.App. 3rd Cir.1970). Bomingue v. Huval, 261 So.2d 88 (La.App. 3rd Cir.1972). Daggett, Louisiana Privileges and Chattel Mortgages, Section 86 (1942).

Although the trial court found that Stephens was demanding a sum greater than the actual bill for repairs, we find no evidence that Babington ever disputed this amount. The record discloses that Babing-ton’s first offer of any payment was made by letter on September 13, 1979 after the correct amount of the bill was settled. As this letter reserved Babington’s rights against Stephens, the trial court correctly held that this offer to pay was conditional in nature. At no time did Babington make an actual legal tender of the amount due to Stephens. Thus we conclude that Stephens was justified in retaining possession of the vehicle under La.C.C. Art. 3217.

Loss of Use

Babington cites three cases to support the award of damages for loss of use of the automobile. Willie Plain d/b/a Interstate Shell Services v. Refrigeration Transport Company, Inc., 393 So.2d 367 (La.App. 1st Cir.1980); David Chambers III v. United Cab Company, et al, 381 So.2d 1300 (La.App. 4th Cir.1980); Alexander v. Qwik Change Car Center, Inc., 352 So.2d 188 (La.1977). These cases involved recovery of tort-caused damages for loss of use from the tort-feasor.

The rule regarding damages for loss of use in tort cases has been firmly established by this court. In Nolan v. Litizza, 301 So.2d 892 (La.App. 4th Cir.1974), this court held that the owner of an automobile, temporarily deprived of its use while tort-caused damages were being repaired, may recover for that loss of use from the tort-feasor even if the automobile is for personal use. In Chriss v. Manchester Insurance and Indemnity Co., 308 So.2d 803 (La.App. 4th Cir.1973), this court held that it is not necessary that the plaintiff actually rent substitute property in order to recover damages for loss of use caused by the negligence of another. Nonetheless these cases are inapplicable due to the absence of any tort by Stephens, and we conclude that the granting of damages to Babington for loss of use of the automobile was improper.

Storage Charges

In Milan Realty Co., v. Jones, 7 So.2d 405 (La.App. 2nd Cir.1942) the court recognized that a repairmen’s privilege on an automobile included the charge for storage. The court stated that Civil Code Articles 3224, 3225 and 3226 provide ample authority for this conclusion.

In Grunewald Company, Ltd. v. Bres, 4 Orl.App. 234 (La.App.1907), the court also recognized a charge for storage on the property retained by a repairman. However, this court held that the charge for storage should be allowed for a reasonable time only. The repairman should, without unnecessary delay, assert his claim and lien against the property. Here Stephens did not assert its claim against the automobile.

Although these cases recognize such a charge, there was no evidence presented at trial which would afford a basis to levy such charges. Accordingly, we disallow the storage charges.

Attorney’s Fees

In his Reasons for Judgment, Judge Levy stated that he knew of no authority for awarding attorney’s fees to the plaintiff-appellant. Counsel for plaintiff-appellant asserts that the trial court was in error, citing the case of Van Trow Olds Cadillac, Inc. v. Kahn, 345 So.2d 991 (La.App. 2nd Cir.1977). However, this case is clearly not authority for awarding attorney’s fees in the present case. In Van Trow, the attorney’s fees were awarded for wrongful writ of sequestration under La.R.S. 9:4501. In the case at bar, there was no sequestration of the automobile. We conclude, the trial court correctly denied attorney’s fees.

For these reasons, the judgment of the trial court in favor of Charles J. Babington and against defendant, Stephens Imports, Inc., ordering the defendant Stephens Imports, Inc., to return the vehicle to plaintiff, Charles J. Babington upon the said plaintiff paying Stephens Imports, Inc., the sum of Three Thousand Six Hundred ($3,600.47) Dollars is affirmed. That portion of the judgment assessing storage charges of Five ($5.00) Dollars per day from September 17, 1979 to the date when payment on the automobile is made subject to a credit of Fifteen ($15.00) dollars per day for the loss of use of the vehicle from October 1, 1978 until September 17,1979 is hereby reversed.

AFFIRMED IN PART.

REVERSED IN PART.


author: SCHOTT, Judge.

text:
    Yvonne Boudreaux, Widow of Leslie WILLIAMS, and on Behalf of Her Minor Daughter Taiwan WILLIAMS v. NEW ORLEANS PUBLIC SERVICE INC., Earl K. Donald, and South Carolina Insurance Company. Jo Ann BOYKINS, Individually and as Natural Tutrix of the Minor Children, Darry Boykins, Jerry Boykins, Anthony Boykins and Rodney Boykins v. NEW ORLEANS PUBLIC SERVICE, INC., Earl K. Donald, and South Carolina Insurance Company.
    Nos. 13087, 13088.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 4, 1982.
    Rehearings Denied Nov. 19, 1982.

      Orlando G. Bendana and Wayne H. Carlton, Jr., Bendana & Carlton, New Orleans, for plaintiff-appellee Yvonne Boudreaux.
    Arthel J. Scheuermann and Lawrence Blake Jones, Scheuermann & Jones, New Orleans, for plaintiff-appellee Jo Ann Boy-kins.
    David M. Cambre, Dillon & Cambre, New Orleans, for defendants-appellants Donald & S. Carolina Ins.
    Gordon F. Wilson, Jr., Dodge, Friend, Wilson & Spedale, New Orleans, for defendant-appellant Avanti Research & Development.
    C.B. Ogden II, New Orleans, for defendant-appellant New Orleans Public Service.
    Before SCHOTT, GARRISON and WILLIAMS, JJ.
   SCHOTT, Judge.

This is a wrongful death action by the widows and children of Leslie Williams and Jerry Boykins, growing out of the death of the decedents who were electrocuted while in the process of raising a “Citizens Band” (CB) radio antenna on the property of defendant Earl K. Donald. Defendants along with Donald were his liability insurer, South Carolina Insurance Company, New Orleans Public Service, Inc. (NOPSI), and Avanti Research & Development, Inc., the manufacturer of the antenna. The trial court dismissed the suits against NOPSI and Avanti but awarded a judgment in favor of each set of plaintiffs against Donald and his insurer for $50,000 based upon a stipulation that the amount of the judgment would not exceed the amount of Donald’s insurance. Donald and his insurer have appealed as have the plaintiffs. The principal issue is whether the trial court erred in failing to dismiss plaintiffs’ suits on theories of contributory negligence and/or assumption of the risk and/or victim fault.

On April 2,1978, Donald invited decedent Boykins along with Boyd and Clark to assist him in the assembling and erection of a GB antenna which was manufactured by Avan-ti. Donald took the antenna, still in its shipping box, from his living room to his back yard where it was opened by the four of them and the process of assembling the parts began. Sometime later decedent Williams, Woods and Holiday joined the group and assisted in the project.

After the antenna was assembled it was mounted on a mast, which was attached to a rotary, which was attached to a tower, which was attached to a base. This was all done while the parts were on the ground and the next step was to raise the entire contraption over the base until it was perpendicular to the ground. The base, consisting of an iron post imbedded in concrete, had been previously installed by Donald alongside the rear of his house and the position of the base predetermined that the contraption would run diagonally across the back yard and toward a fence on the side of the yard. Running parallel to this fence along the side of Donald’s property and suspended on poles were high voltage feeder lines belonging to NOPSI.

The plan for raising the contraption was for two of the men to stand on Donald’s roof pulling a line connected to the mast, and for four of the men, including Donald and the two decedents, to lift the contraption by walking it toward Donald’s house. In the meantime Holiday would use another structure to prop up the contraption as the men raised it. In the process the antenna came into contact with the electric lines, causing the electrocution of the decedents and injury to the other three on the ground, including Donald.

In reasons for judgment the trial court found that the cause of the accident was Donald’s negligence in establishing the location of the tower base and in failing to know the height of the structure. The court also reasoned that strict liability under LSA C.C. Art. 2317 applied to the situation. The court found that Donald failed to carry his burden of proof to show that decedents were able to know and comprehend the danger they were placed in and concluded that there was no proof of victim fault which might preclude recovery under Art. 2317.

Assuming for the sake of discussion that Donald was negligent in choosing the site for the base and failing to know the height of the antenna, this was not the cause in fact of the accident. The evidence is uncontradicted that this entire group of men, including the two decedents, after assembling the structure and immediately pri- or to raising it, stood under the electric wires and discussed the question of whether the antenna would clear the wires when raised. It cannot be said that Donald’s failure to measure the antenna caused the accident any more than the same failure of the two decedents and the other men in the group. They all knew that Donald’s hadn’t measured the antenna and were not relying on any measurements he furnished. Each one had the same duty as Donald to determine whether the antenna would clear the wires before they raised it and by failing to discharge that duty they caused the accident as much as Donald did. When a negligence test is applied to this case the plaintiffs are precluded from recovery because of the negligence of their own decedents, whether it be deemed joint negligence with the tort feasor they sued or contributory negligence. The same result obtains either way.

The trial court considered that his judgment was “bolstered” by the evolving law of strict liability in Louisiana. Plaintiffs contend that the placement of the base by Donald, with a predetermined method of attachment to it by the structure so that it would necessarily be raised in proximity to the electric wires constituted a “thing” in Donald’s custody for which he should be held strictly liable under C.C. Art. 2317. However, in Loescher v. Parr, 324 So.2d 441 (La.1975) the court held that victim fault was a defense to an action based on Art. 2317’s strict liability. Recent Supreme Court cases does not clearly define victim fault as compared to our traditional concepts of contributory negligence. In Dorry v. Lafleur, 399 So.2d 559 (La.1981) the court observed: “Under what circumstances a plaintiff’s contributory negligence should bar his recovery in a strict liability case should be developed on a case by case basis,” and rejected contributory negligence as a legitimate defense to the claim in that particular case. However, the court did approve of assumption of the risk as a defense to the claim, although concluding that the Court of Appeal had erroneously upheld the defense in that case because the victim had only constructive knowledge of the risk as opposed to actual knowledge. However, even Dorry creates doubts because it was only a plurality decision of the court with three justices concurring and one dissenting from a case written by a Justice ad hoc. In Kent v. Gulf State Utilities Company, 418 So.2d 493 (La.1982) Justice Dennis provided an insight into his thinking with this conclusion of his dissenting opinion: “. ... I find that the plaintiff’s own fault would preclude him from recovering in this case even under a [Langlois v. Allied Chemical Corp., 258 La. 1067, 249 So.2d 133 (La.1971) ] type of strict liability. Although it is a close question, as I appreciate the evidence, plaintiff knowingly and unreasonably assumed the risk of electrocution by flip-flopping a meter pole near the defendant’s power line.”

Under the facts of the instant case, plaintiffs are precluded from recovery by their own fault no matter how that fault is measured, i.e., contributory negligence or assumption of the risk. As evidenced by the discussion which took place among all of the men just before they began to raise the antenna they were all aware of the presence of the wires overhead, the danger of accident if the antenna made contact with the wires, and a willingness to assume the risk that the antenna would come in contact with the wires, and they proceeded without knowing the height of the antenna or of the wires. In Dorry v. Lafleur, supra, the court limited application of assumption of the risk to those situations where the victim has actual knowledge and appreciation of the danger as contrasted with constructive knowledge and appreciation. Thus, plaintiffs argue that the burden was on defendants to prove that the decedents had actual knowledge and appreciation as an element of the defense to their claims. However, Dorry says:

“This is not to say that the plaintiff’s disclaimer of knowledge or appreciation must be taken at face value. This is a fact question. And there are some risks that every man must be held to appreciate, (see Restatement, supra, comment d). There is a plain difference, however, between what one must have known (a finding of actual knowledge) and what one should have known (the imposition of an objective standard of care).”

The decedents were both educated, mature individuals who held steady jobs and provided for their families. They were both involved in CB radio activities. Indeed, of all the group, Boykins seemed to be quite knowledgable in the assembling and erecting of such an antenna and was regarded as a leader of the group to some extent. The conversation among the men was apparently intelligent conversation with respect to the very danger which caused the accident. All these factors militate in favor of the conclusion that they must have known of the danger and consequently assumed its risk as per Dorry. This conclusion is bolstered by the comment of the court in Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976):

“Electric wires on a pole are an announcement of danger to almost anyone smart enough and old enough to get himself in contact with a wire 28 feet above the ground.”

The plaintiff widow and surviving children of Boykins have maintained in this court the appeal taken from the judgment in favor of NOPSI and Avanti. (The Williams group have acquiesced in this aspect of the trial court’s judgment). Our previous discussion with respect to the activities of both decedents, including Boykins, would preclude his survivors from recovery for the same reason that they are precluded from recovery against Donald and his insurer. Nonetheless, our review of the record enables us to conclude that the trial judge committed no error in his conclusion that these defendants are not liable to Boykins’ survivors. As to NOPSI, the wires were the proper height from the ground, and it had no notice or knowledge that the project was going to take place so as to impose some duty on it to de-energize the wires. A reading of Kent v. Gulf States Utilities Co., supra, is sufficient for this court to exonerate NOPSI. under the circumstances. As to Avanti, the argument is that it was strictly liable as a manufacturer because its product was unreasonably dangerous in the absence of a warning. We have concluded, first, that this product in itself was not unreasonably dangerous if put to normal use but only became dangerous by the abnormal use of it in close proximity to electrical wires. As to warning, this seems superfluous since the men all knew about the danger based on the discussion they held before the accident occurred. In other words, even if the warning had not been given these men knew of the danger which the warning would have contained. In any event, the evidence shows there were at least three warnings of the danger of electrocution from overhead wires. One was on the outside of the box which was on the ground in the presence of everyone as they assembled the antenna, another was on or in the bag of parts used in the assembly and a third was contained in the instruction booklet that all the men were consulting during the project.

Accordingly, the judgment in favor of plaintiffs is reversed and set aside and there is judgment in favor of Earl K. Donald and South Carolina Insurance Company, and against plaintiffs dismissing their suits at their costs; the judgment in favor of New Orleans Public Service, Inc. and Avan-ti Research and Development, Inc., dismissing plaintiffs’ suits against them, is affirmed.

REVERSED IN PART, AFFIRMED IN PART AND RENDERED.


author: WILLIAMS, Judge.

text:
    The CITY OF NEW ORLEANS, Honorable Ernest N. Morial, Mayor of the City of New Orleans and Gail Broussard, Jerome S. Glazer, Dr. Robert Azar, Stephen Manshel and Peter Coleman, all Commissioners of the Audubon Park Commission and Intervenors, Mitch Ledet, Joe Knecht, Brendolyn McKenna, Phil Baptiste, George Ethel Warren, Edgar Poree, Alice Mayer Katz, and Felicia Kahn v. Honorable David C. TREEN, Governor of the State of Louisiana and Mrs. Lawrence H. Fox, Secretary of Department of Culture, Recreation and Tourism and Intervenors, Friends of the Zoo, Inc., Mrs. Brooke H. Duncan, Mrs. James K. Wadick, III, Mr. Julian B. Feibelman, Jr., Ms. Elizabeth Wisdom, Mrs. George Cary, Jr., Mr. Harry B. Kelleher, Jr., Mrs. Lane T. DeBardeleben, Mr. Louis L. Frierson, Mrs. Daniel H. Walsh, Dr. David F. Bradley, Mr. J. Freyhan Odenheimer and Mrs. Hughes P. Walmsley.
    Nos. C-0139, CA-0154.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 11, 1982.

      Salvador Anzelmo, City Atty., Galen S. Brown, Jack P. McNeely and T.W. Milliner, Asst. City Attys., New Orleans, for City of New Orleans, et al.
    Warren Goldstein, New Orleans, for Mitch Ledet, et al.
    Phillip A. Wittmann, Judy Y. Barrasso, Steven W. Usdin, of Stone, Pigman, Walther, Wittmann & Hutchinson, New Orleans, for Jerome S. Glazer.
    Henry W. Kinney, III, New Orleans, for Friends of the Zoo, Inc., et al.
    William J. Guste, Jr., Atty. Gen., Warren E. Mouledoux, First Asst. Atty. Gen., Louis M. Jones, Asst. Atty. Gen., Maureen J. Fer-an, Staff Atty., Gunther R. Michaelis, Asst. Atty. Gen., La. Dept, of Justice, New Orleans, for defendants-respondents; John J. Hainkel, Jr., New Orleans, David R. Poyn-ter, Baton Rouge, of counsel.
    Harry B. Kelleher, William R. Forrester, Jr., W.L. West of Lemle, Kelleher, Kohl-meyer & Matthews, New Orleans, for Bd. of Liquidation, City Debt, of the City of New Orleans, intervenor-appellant.
   WILLIAMS, Judge.

Appellants have appealed from a decision of the Civil District Court denying plaintiff’s request for a preliminary injunction enjoining implementation of Act 352 of 1982 on the ground that it is unconstitutional.

Act 352 of the 1982 Regular Session of the Legislature seeks to replace the Board of Commissioners, appointed by the City Council, with a Board of Commissioners for the Park appointed by the Governor, and transfers administrative jurisdiction over the Park to the Department of Culture, Recreation and Tourism of the State. Furthermore, the statute provides that the City shall pay up to $700,000.00 to the Park, and all other appropriations and funds designated for the Park are to continue in effect.

The appellees filed exceptions to the suit, including an exception of improper venue. This exception was granted by the district court and, upon application to this Court, the district court’s holding was reversed.

Upon remand to the district court, appellants added the State of Louisiana as a defendant, and the court granted a temporary restraining order enjoining the implementation of Act 352. The District Court heard argument on September 8, 1982, on the remaining exceptions, all of which were denied. At this time, the temporary restraining order was extended for an additional 10 days, or until a hearing on the preliminary injunction, or upon further order of the court.

A hearing was held on the preliminary injunction on September 16, 1982. Appellant’s request was denied. The district court held that the Act was constitutional because the State of Louisiana owns the Park. It held that the law was not a local or special law because it merely sought to verify the State’s ownership of the property. That portion of the statute that provided that the City could expend up to $700,-000.00 for the Park was held to be unconstitutional in that it was a local or special law that had not been published pursuant to Article 3, Section 13 of the Louisiana Constitution of 1974. The Court held that severance of this section from the Act did not affect the constitutionality of the statute. Appellants then moved for a suspensive appeal and also requested that this court stay implementation of the Act pending the appeal. This court granted the request for a stay, and the appellants were granted an appeal.

That portion of property forming the major part of the Park as it is known today was a tract of land once known as Foucher Plantation that was purchased on August 15,1871 for $800,000.00. This purchase was in the name of The Board of Commissioners of The New Orleans Park, an agency that was created by the Louisiana Legislature by Act 84 of 1870. Act 87 of the 1877 Extra Session of the Louisiana Legislature abolished the Commission that had been originally set up and transferred powers to the City Council of New Orleans. In 1896, Act 130 of the Louisiana Legislature transferred the administration of the Park from the City Council to The Audubon Park Association. The Association operated the Park until Act 191 of 1914. Act 191 created a Commission of twenty-four members appointed by the Mayor of the City of New Orleans subject to the approval of the City Council. This Commission was known as The Audubon Park Commission. In 1981, the Legislature passed Act 756 that allowed The Audubon Park Commission to contract with a non-profit Louisiana corporation for the operation, care, control and management of the Park. In 1982, Act 352, at issue in the instant case, was passed.

Upon our review of the record in the instant appeal, we find that the trial court carefully examined the pleadings and mem-oranda submitted by the parties. The trial court in its Reasons for Judgment was of the opinion that the State of Louisiana was the record owner of the land upon which Audubon Park and its other facilities have been constructed.

We agree with the trial court and find the case of City of New Orleans and The Audubon Park Commission v. Board of Commissioners of the Port of New Orleans, 148 So.2d 782 (La.App. 4th Cir.1962) is largely controlling in this matter. The decision clearly established that the State of Louisiana is the record owner of the property. Judge Julian Samuel, writing for this court, analyzed the question of ownership in his opinion. He examined the initial enabling Act, noting the purposes and powers accorded each responsible party charged with the duty to acquire, in the name of the State, the specified recreational property. The court then went on to analyze the effect of each subsequent amendment and succeeding Act up to the time of the opinion in 1963. At no point in time, in the analysis of any of these Acts of the Legislature, did title to the property pass from the State of Louisiana to the City of New Orleans. All that was conferred upon the City was the privilege of appointing the Audubon Park Commissioners, first by the City Council and later by the Mayor of the City of New Orleans with the advise and consent of the City Council. The court concluded:

We are of the opinion that the above recited legislative acts do nothing more than designate successive agencies to administer, manage and control the park property which belonged, and belongs, to the state. Although title to the property was originally taken in the name of the legislative corporation which had authority to manage and control the park, it is quite clear that the State, and not the corporation, owned the property, and this is also true in connection with the later designations of other agencies. None of the legislative acts divests the state of its original ownership nor has the defendant called to our attention any other act or action by the state which could be considered such a divestiture. None of the agencies owns or has owned the property; that ownership has remained in the state. As the court observed in the case of Saucier v. City of New Orleans, 119 La. 179, 187, 43 So. 999, 1002:
‘That the state must administer its property through some agent, that it may administer such of its property as lies within a particular municipality through such municipality, and that the investiture of a municipality with control of state property, for purposes of administration, is neither the loaning, pledging, nor granting of anything, are propositions which do not admit of discussion.’ (Emphasis supplied)

The trial court adopted the holding of the Board of Commissioners, supra.

While we are not bound by the common law doctrine of “stare decisis,” we do recognize instead, in Louisiana, the doctrine of “jurisprudence constante.” State v. Placid Oil Co. et al., 274 So.2d 402 (La.App. 1st Cir.1972); Johnson v. St. Paul Mercury Ins. Co., 256 La. 289, 236 So.2d 216, 218 (La.1970). As stated in Johnson:

Fundamental and elementary principles recognize that certainty and constancy of the law are indispensable to orderly social intercourse, a sound economic climate and a stable government. Certainty is a supreme value in the civil law system to which we are heirs. Merryman, The Civil Law Tradition 50 (1969). In Louisiana, courts are not bound by the doctrine of stare decisis, but there is a recognition in this State of the doctrine of jurisprudence constante. Unlike stare decisis, this latter doctrine does not contemplate adherence to a principle of law announced and applied on a single occasion in the past.
However, when, by repeated decisions in a long line of cases, a rule of law has been accepted and applied by the courts, these adjudications assume the dignity of jurisprudence constante; and the rule of law upon which they are based is entitled to great weight in subsequent decisions. Keller v. Haas, 209 La. 343, 24 So.2d 610 (1946); Gravier v. Gravier, 200 La. 775, 8 So.2d 697 (1942); Miami Corp. v. State, 186 La. 784, 173 So. 315 (1937); Rubin and Ponder, The Ostrich and the Arbitrator: The Use of Precedent in Arbitration of Labor-Management Disputes, 13 La.L.Rev. 208 (1953).
Thus, while this court has the power to modify and overrule its former decisions, it does not do so unless it is clearly demonstrated that error has occurred and hardship and injustice will attend a continuation of the rule of law. Gravier v. Gravier, supra.

We do not find it necessary to overrule the trial court. There has been no demonstration that any error has occurred or will arise upon our following of this prior rule of law as in the instant case and that of City of New Orleans and The Audubon Park Commission v. Board of Commissioners of the Port of New Orleans, supra. We, therefore, affirm the ruling of the trial court. Act 352 of 1982 is not unconstitutional.

Since we have found, as the trial court did, that the State of Louisiana is the owner of Audubon Park, it therefore follows that the State has every right to administer its property in whatever manner it determines to be in the best interest of the State.

The City also argues that Act 352 is a local or special law requiring publication, and because no publication was made, the law is unconstitutional.

Article 3, Section 13 of the 1974 Louisiana Constitution requires that:

“[n]o local or special law shall be enacted unless notice of the intent to introduce a bill to enact such a law has been published on two separate days, without cost to the State, in the official journal of the locality where the matter to be effected is situated. The last day of publication shall be at least 30 days prior to the introduction of the bill. The notice shall state the substance of the contemplative law, and every such bill shall recite that notice has been given.”

No publication of Act 352 took place, although previous legislation affecting Audubon Park had been published.

The Louisiana Supreme Court has held that a law is not local or special simply because its enforcement may be restricted to a particular locality, or simply because the conditions under which it operates do not prevail in every locality. Davenport v. Hardy, 349 So.2d 858, 863 (La.1977) and cases cited therein. In Davenport v. Hardy, supra, a statute which related to Court Clerks and Constables in Orleans Parish was attacked on the ground that it represented a local or special law. This Court held that although the Constables of these courts were elected by voters from a limited area, they served the community as a whole and not a certain number of persons within a class. It further held that the Act did not give private advantage for the benefit of persons within a specific locality, but affected all persons who might have contact with that court.

Insofar as Act 352 changes the composition of the Board of Commissioners, it is not a local or special law. But see discussion, infra, re appropriations. It is reasonable to assume that the Park will affect not only the people in Orleans Parish, but a large number of other people from outside of the area who may also have contact with the Park. See also State v. Dalon, 35 La.Ann. 1141 (1883).

Furthermore, the Park is owned by the State. One of the fundamental incidents of ownership is the right to administer property. Administration can be delegated to whomever the owner chooses, be it the City Council, a State Board, or an independent agency. We do not decide, however, whether the State has an unfettered right to pass legislation changing the use of State owned property without publication.

The fact that the State has complied with the notice requirements concerning Audubon Park in the past does not make the statutes themselves local or special. See Knapp v. Jefferson-Plaquemines Drainage District, 224 La. 105, 68 So.2d 774 (La.1953).

Although it is clear that the State owns that part of Audubon Park which was once known as Foucher Plantation, there are three additional strips of land that the City claims it acquired subsequent to the original grant.

City Council Ordinance No. 11,727 C.S. of January 9, 1896, authorized the Mayor of the City of New Orleans to accept the first tract of land. Furthermore, the City purchased the second tract in 1904, pursuant to the City Council Ordinance No. 2256 C.S. of February 12, 1904. These parcels of land, clearly are City property. The fact that the parcels of land obtained by the City in 1896 and 1904 are not large makes no difference. We know of no law that allows us to discriminate between large and small parcels of land in this case. The overriding concern of all parties should be the best interest of the public. The decision by the City as to future administration of these small tracts of land should be made in light of this concern.

The City is also claiming a third tract that was purchased from the Texas and Pacific Railway Company for $125,000.00 in 1948, pursuant to City Council Ordinance No. 17,373 of July 15, 1948. That City Council Ordinance authorizes the Audubon Park Commission, not the City, to purchase from the vendee, that tract of land for $125,000.00. The Act of Sale indicates that the purchaser was The Audubon Park Nata-torium, Inc., not the City of New Orleans. The City has failed to prove an ownership interest in this parcel of land.

The City argues that Section 3(E)(2) of Act 352 is unconstitutional on the ground that it is violation of the Home Rule Charter provisions of the Louisiana Constitution. The concluding sentence of Section 3(E)(2) provides:

... In like manner, all other dedications and allocations of revenues and sources of revenues heretofore made, which are constitutional under the Louisiana Constitution of 1974, shall continue, until otherwise hereafter provided by the constitution in the same manner, to the same extent, and for the same purposes as were provided prior to the enactment of this Act.

This requirement or mandate that the City of New Orleans is to spend its own funds for the benefit of the Park would be wholly inconsistent with the Home Rule Charter of the City of New Orleans as provided for by Art. VI of the Louisiana Constitution.

The trial court below declared unconstitutional Section 2 [(Section 1766(A); La.R.S. 56:1766(A)) ] of Act 352 of 1982, requiring the City of New Orleans “to appropriate monies for the ‘preservation, improvement and beautification of the Park and its facilitiesThis ruling by the court was premised on its conclusion that the Section was “local or special” in nature and required notice and publication, as required by statute, to be effective and failing that, it was held unconstitutional. We lack jurisdiction to review the constitutionality of this provision as provided by Article V Section 5(D)(1) and Section 10(A)(1) of the Louisiana Constitution of 1974, as amended. Gilbert v. Catahoula Parish Police Jury, 404 So.2d 291 (La.App. 3d Cir.1981) affirmed 407 So.2d 1228; Derouen v. Kolb, 389 So.2d 761 (La.App. 3d Cir.1980) transferred to 397 So.2d 791 (La.1981); In Re Ingram, 82 So.2d 788 (La.App. 1st Cir.1955); Gaylord Container Corp. v. Stilley, 79 So.2d 109 (La.App. 1st Cir.1955).

Nevertheless, the reasoning which the trial court employed in declaring Section 1766(A) of the Act unconstitutional is applicable to the above quoted portion of Section 3(E)(2) of Act 352. In addition to being a violation of the Home Rule Charter, this is clearly a local or special law, as discussed supra, and because it was not published, is unconstitutional. The City contends that the Act is inseverable. We disagree. The unconstitutionality of this sentence does not affect the constitutionality of the remaining provisions of the statute including the balance of Section 3(E)(2).

It is important to note, however, that this Act does not impair the rights of the bondholders, or the duties of the City as issuer of the bonds. Act 352, Section 3(E)(1) and (2) (after deletion of the concluding sentence as discussed, supra.) states:

E. (1) The legislature hereby specifically states that this Act is in no way and to no extent intended to nor shall it be construed in any manner which will impair the contractual or other obligations of the abolished commission or of the state of Louisiana. It is hereby specifically provided that all obligations of the abolished commission, hereafter shall be deemed to be the obligations of the new commission to the same extent as if originally made by them. In like manner, and in order to prevent any violation of the provisions, terms, or conditions of any gift, donation, deed, will, trust, or other instrument or disposition by which property of any kind has been vested in the abolished commission, or diversion from the purposes for which such property was thus vested in any such commission, it is hereby specifically provided that each such instrument or disposition hereafter shall be deemed to have been vested in the new commission in the same manner and to the same extent as if originally so done.
(2) The new commission shall be the successor in every way to the abolished commission, including all of the obligations and debts thereof. All funds heretofore dedicated by or under authority of the constitution and laws of this state or any of its subdivisions to the payment of any bonds issued for construction or improvements for any facility under the control of the commission, including but not limited to Act No. 55 of the 1979 Regular Session, shall continue to be collected and dedicated to the payment of those bonds, unless under the constitution and laws such bonds are now being paid out of moneys in the Bond Security and Redemption Fund in the state treasury .

It is clear that this statutory language was employed by the Legislature to protect the bondholders. The wording of the Act was in no way meant to affect the rights of the bondholders. Additionally, there have been no impairments of this obligation, thus far. The trial court below, believed that any issues raised were premature in the absence of such impairment. We agree.

The stay granted by this Court on September 17, 1982 is continued until 5 P.M., Thursday, October 14, 1982 during which time the appellants may take any further legal action they desire.

For the foregoing reasons, the decision of the trial court is AFFIRMED in part and REVERSED to the extent that the concluding Section 3(E)(2) is declared unconstitutional.

AFFIRMED IN PART.

REVERSED IN PART.


text:
    The CITY OF NEW ORLEANS: Honorable Ernest N. Morial, Mayor of the City of New Orleans: and Gail Broussard, Jerome S. Glazer, Dr. Robert Azar, Stephen Manshel and Peter Coleman, all Commissioners of the Audubon Park Commission v. Honorable David C. TREEN, Governor of the State of Louisiana, and Mrs. Laurence H. Fox, Secretary of the Department of Culture, Recreation and Tourism.
    No. CA 0190.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1982.
   ORDER

The judgment of this court rendered on October 11, 1982, in consolidated cases No. C 0139 and No. CA 0154 on the docket of the court is adopted in full as the judgment of the court in this case.

This case is hereby consolidated with the said consolidated cases.


author: SAVOIE, Judge.

text:
    Elizabeth VAUGHN v. BATON ROUGE GENERAL HOSPITAL.
    No. 15003.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.

      Alan L. Schwartzberg, Baton Rouge, for plaintiff-appellant, Elizabeth Vaughn.
    Felix R. Weill, Baton Rouge, for defendant-appellee, Baton Rouge General Hosp.
    Before ELLIS, PONDER and SAVOIE, JJ.
   SAVOIE, Judge.

This appeal stems from the trial court’s dismissal of the claimant’s action for benefits under the Louisiana Workmen’s Compensation Law.

The issue presented here is the status of employment, if any, of the claimant. Claimant contends, alternatively, that she was an actual, implied, statutory, or borrowed employee of Baton Rouge General Hospital, such that workmen’s compensation benefits would be due her for an injury which she received during her employment.

We affirm the holding of the trial court.

This suit arose when claimant was a “sitter” at Baton Rouge General Guest House, an extension of Baton Rouge General Hospital. The claimant was injured while assisting a patient back to her room. The patient fell, causing the claimant to fall with her, resulting in injuries to the claimant.

The claimant had listed herself with the Baton Rouge Nursing Service, a private firm, as available to care for patients as a “sitter”. In such capacity, she was employed by various patients prior to her injuries. At the time of claimant’s injury, she was employed as a “sitter” for a Mrs. Brown. Because of our decision herein, it is unnecessary that we go into the nature or severity of the claimant’s injuries.

A prerequisite to any action arising under Workmen’s Compensation Law is the existence of an employer-employee relationship. Dupre v. Sterling Plate Glass & Paint Company, Inc., 344 So.2d 1060 (La.App. 1st Cir.1977), writ denied, 347 So.2d 246 (La.1977). The burden of proof is upon the claimant to establish this requisite by a reasonable preponderance of the evidence. Loomis v. Highland Hospital, Inc., 274 So.2d 200 (La.App. 2nd Cir.1973). Right to control is the essence of this relationship, evidenced by four primary factors:

1. Selection and engagement.

2. Payment or wages,

3. Power of dismissal, and

4. Power of control

Alexander v. J.E. Hixson & Sons Funeral Home, 44 So.2d 487 (La.App. 1st Cir.1950); Gaspard v. Travelers Insurance Company, 284 So.2d 104 (La.App. 3rd Cir.1973); St. Paul Fire & Marine Insurance Company v. Richard, 208 So.2d 35 (La.App. 3rd Cir.1968), writ refused, 210 So.2d 54 (La.1968). None of these factors are the sole determinant in an employer-employee relationship. As a general rule, for such a relationship to exist, there must be a contract of employment, either expressed or implied, whereby services are furnished in anticipation of compensation. Dupre, supra.

Claimant’s first contention that she was an actual or implied employee of Baton Rouge General Hospital is untenable. Mrs. Brown, through her brother, paid claimant on an hourly basis. At no time did the claimant receive payment from Baton Rouge General Hospital. Time sheets were examined by Mrs. Brown in the person of her brother, and the checks were drawn on Mrs. Brown’s account to make payment throughout the entire time that the claimant was sitting with Mrs. Brown. Baton Rouge General Hospital made no payments to claimant, nor were regular employment records filled out by the claimant with Baton Rouge General Hospital.

The initial contact for employment was made by a nurse employed by Baton Rouge General Hospital. The record indicates that this call was made as an accommodation for the patient, Mrs. Brown. Admittedly, Baton Rouge General Hospital did exercise minimal control over some activities of the claimant and her patient. Such control exercised was limited to insuring established medical practices were followed.

Claimant asserts that Baton Rouge General Hospital had the power to fire her. This assertion is without substance. Baton Rouge General Hospital could have excluded claimant from working for Mrs. Brown at Baton Rouge General Guest House. However, Mrs. Brown was free to continue the claimant’s employment at any other facility or at Mrs. Brown’s personal residence without the approval or consent of Baton Rouge General Hospital. The power of dismissal was not Baton Rouge General Hospital’s, but Mrs. Brown’s.

The record is devoid of any fact which would substantiate an implied employer-employee relationship between Baton Rouge General Hospital and the claimant herein.

Claimant alleges that she is a statutory employee, under the provisions of L.S. A.-R.S. 23:1061. One of the essential elements of statutory employee status is a contractual relationship between the principal and the contractor for the execution by the contractor of the whole or any part of the principal’s work. The record does not support any such contention. The only contract of employment that exists in this matter is that between the claimant and her patient, Mrs. Brown.

Claimant’s allegation of being a “borrowed servant” fails to meet the requisites of such doctrine. The court in Dupre stated:

“Implicit in the right to control is the necessity that the lending employer relinquish its control over its employee to the borrowing employer and that he is performing work for the borrowing employer’s business. Benoit v. Hunt Tool Company [45 So.2d 512], supra; Berry Brothers General Contractors, Inc. v. Air Marine, Inc. [328 So.2d 771], supra. Additionally, the concept of the ‘borrowed employee’ doctrine, by its terms, connotes an agreement of some type between the lender and the borrower, that the lender relinquished such control of the employee to the borrower, ...” 344 So.2d 1060, 1063-64 (La.App. 1st Cir.1977).

Absent from the record is not only any substantiation of a contract between Baton Rouge General Guest House and Baton Rouge Nursing Service or Mrs. Brown for the relinquishment of their control over the plaintiff, but also any contract that the Baton Rouge Nursing Service was an employer of any sort. The “borrowed servant” doctrine is inapplicable in this instance.

For the foregoing reasons, the judgment of the trial court is affirmed. Claimant is to pay all costs.

AFFIRMED.


author: PONDER, Judge.

text:
    Philip K. HAMILTON, Sr. v. Carol Ann deBoxtel HAMILTON.
    No. 15004.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.

      Rykert O. Toledano, Jr., Covington, for plaintiff, appellee.
    Floyd J. Reed, New Orleans, for defendant, appellant.
    Before ELLIS, PONDER and SAVOIE, JJ.
   PONDER, Judge.

Defendant, Carol Ann deBoxtel Hamilton, appealed from a judgment rejecting her demands for an increase in alimony, decreasing child support and awarding her a sum for past due alimony and support and attorney’s fees in a claimed inadequate amount.

The issues on appeal are 1) plaintiff's defense of set-off and compensation, 2) the deduction of certain bills paid by the plaintiff, 3) the failure to increase child support and alimony, and 4) the amount of attorney’s fees and legal interest.

The judgment of separation ordering the plaintiff to pay $200.00 per month alimony pendente lite and $250.00 per month in child support for two minor children, was affirmed by this court. Hamilton v. Hamilton, 388 So.2d 64 (1st Cir.1980).

Plaintiff later filed a rule asking for a decrease. Defendant reacted by filing rules for an increase, for contempt, to make past due child support and alimony executory and for attorney’s fees. The trial court terminated support for the child who had reached the age of majority, set support for the remaining child at $225.00 per month, continued alimony pendente lite in the amount of $200.00 per month, and awarded $652.72 in past due alimony and child support and $350.00 in attorney’s fees.

Defendant first argues that the defense of compensation and set-off was not properly pleaded and that the appropriate place for such a defense is in a proceeding for partition of community property.

The trial court deducted $1490.11, one-half of community funds held in defendant’s bank account at the time of separation, from the $8550.00 in back alimony and support claimed by the defendant. Defendant had transferred the funds from the community checking account to her personal bank account prior to the separation.

The defense of set-off or compensation requires a contemporaneous existence of distinct debts, each equally liquidated and demandable. Thomas v. Thomas, 400 So.2d 1120 (1st Cir.1981). While the plaintiff has a potential claim against his wife for community funds, that claim should be determined in a partition of the community property, since it is not “equally liquidated and demandable.” Hartley v. Hartley, 349 So.2d 1258 (La.1977). The trial judge erred by deducting $1490.11. Because of this conclusion we need not address the question of pleading.

The defendant next argues that the trial judge erred in giving plaintiff credit for the payment of defendant’s bills. Defendant testified that she sent the plaintiff certain bills but never authorized him to pay them in lieu of the alimony or support payments. Plaintiff testified that defendant told him to pay bills that were her expenses, because she did not have sufficient funds. The majority of the bills deducted were for the utilities and home mortgage on the residence in which defendant and her child reside.

In oral reasons the trial judge found that there was an agreement that the plaintiff would pay certain bills on behalf of the defendant.

Generally, a father can relieve himself of the obligation of child support only by initiating a proceeding to have the judgment amended, but there may be an agreement that payment of alimony or child support can be made in a way other than by direct payments. Blankenship v. Blankenship, 382 So.2d 982 (1st Cir.1980); Seifert v. Seifert, 374 So.2d 157 (1st Cir.1979).

An agreement by the wife to suspend her right to receive child support payments will not be enforced unless it meets the requisites for a conventional obligation and fosters the continued support and upbringing of the child. The parties must “clearly agree” to a suspension of payments. Dubroc v. Dubroc, 388 So.2d 377 (La.1980).

We agree that the payments made by plaintiff to creditors on the wife’s behalf were made with her knowledge and consent. See Matter of Andras, 410 So.2d 328 (4th Cir.1982). Although the trial judge found that the wife “acquiesced,” the wife’s affirmative act of sending the bills to the plaintiff was more than mere acquiescence. The trial judge did not err.

Defendant’s argument that the trial court erred in refusing to increase alimony and child support is without merit. Plaintiff did receive a slight salary increase, but one of the minor children had reached the age of majority. The trial judge gave little value to the defendant’s expense sheet. We cannot say that the reduction of support by $25.00 per month was an abuse of discretion.

Plaintiff next argues that the trial court erred in not awarding $1648.21 in attorney’s fees and legal interest on all past due support payments from the due date of each payment until paid.

Although the $350.00 in attorney’s fees may be low, we do not find them to be an abuse of the trial court’s discretion. The matter was litigated at a r.ule to show cause, rather than a full trial, and the feeds to compensate the attorney for work relative to the past due alimony and support. La.R.S. 9:305; Thomas v. Thomas, supra.

The appellant, however, has found it necessary to appeal to rectify some errors. We amend the judgment to award attorney’s fees totaling $700.00.

Legal interest for back alimony and support should have been awarded from the due date of each past due installment until paid. Thompson v. Courville, 372 So.2d 579 (3rd Cir.1979).

We amend the trial court decision to eliminate the deduction of claimed community funds, to award legal interest from the due date of each installment until paid, to correct a mathematical error and to increase attorney’s fees to $700.00. The amount of past due support and alimony totals $2042.94.

For these reasons, the judgment as amended is affirmed. Costs of this appeal are to be paid by the plaintiff.

AMENDED AND AFFIRMED.

      . Following this appeal, plaintiff filed for divorce. On appeal, this court amended and affirmed the trial court judgment which granted the divorce, fixed child support at $225.00 per month and denied alimony. Hamilton v. Hamilton, 417 So.2d 46 (1st Cir.1982).

      . La.R.S. 9:305:
      When the court renders judgment in an action to make past due alimony or child support executory, or in an action to enforce child visitation rights, except for good cause, the court shall award attorney fees and costs to the prevailing party.

      . Back alimony and support totaled $8550.00 at the time of this hearing. Plaintiffs payments in the amounts of $5194.86 and $1312.20 were deducted.


author: LANIER, Judge.

text:
    Jimmy WILEY, et ux. v. Dr. William P. KARAM, et al.
    No. 15010.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.

      Don J. Hernandez, Franklin, plaintiff-appellant.
    Anthony W. Skidmore, New Orleans, for plaintiff.
    Carey T. Jones and Nicholas Gachassin, Jr., Gachassin & Capretz, Lafayette, for defendants-appellees.
    Before COVINGTON, LEAR and LANIER, JJ.
   LANIER, Judge.

This is a suit for damages in tort alleging dental malpractice. The trial court ruled that the plaintiffs-appellants failed to establish a breach of duty (negligence) by a preponderance of the evidence and dismissed their claims. This devolutive appeal followed.

I. FACTS

On September 13,1979, Mrs. Helen Wiley, wife of Jimmy Wiley, went to the office of Dr. William P. Karam, a dentist, in Franklin, Louisiana. Mrs. Wiley gave Dr. Karam a history of pain in her gums and teeth. Dr. Karam’s examination revealed approximately twelve missing molars, acute infection of the gums, and moderate periodontal disease (loss of bone structure holding the teeth). Dr. Karam prescribed antibiotics to control the infection. Mrs. Wiley returned for further consultation and examination on September 17, 1979. Mrs. Wiley again returned to see Dr. Karam on September 19, 1979, at which time Dr. Karam performed curettage and scaling to scrape her gums and the roots of her teeth to remove dead tissue. At this time, Dr. Karam also removed a cap from her upper right eyetooth that was irritating the gum.

Mrs. Wiley returned to Dr. Karam’s office again on September 26, 1979. Examination revealed that the infection had substantially subsided and that her mouth pain was isolated to her upper right central incisor tooth (number eight). After percussion testing of this tooth, Dr. Karam determined that it did not have a viable blood supply and that the nerve was dead. X-rays of this tooth showed a small root canal, pulp stones in the canal and root chamber and infection at the tip of the root. Dr. Karam advised Mrs. Wiley that her alternatives were to either remove the tooth or remove the dead material from the root canal of the tooth. Mrs. Wiley elected the root canal therapy. Dr. Karam then drilled into the tip of the root through the back of the tooth and found pulp stones in the root canal which he drilled out with a Pisso reamer. Dr. Karam then attempted to clean out the root canal with a root canal reamer, but encountered great difficulty because of the decreased size of the root canal caused by calcification. Dr. Karam tried for approximately one hour to complete the root canal procedure, but was unsuccessful. During the course of this attempt, a portion of the root canal reamer broke off and lodged in Mrs. Wiley’s root canal. Dr. Karam advised Mrs. Wiley that since the root canal therapy was unsuccessful, only two alternatives were available which were to either extract the tooth and replace it with a false tooth or undergo a surgical procedure called an apicoectomy with retrograde filling. Dr. Karam indicated that the latter procedure was not appropriate in her case because of the trauma involved and her loss of bone structure. Dr. Karam asked Mrs. Wiley to think over these alternatives and advise which she elected. Mrs. Wiley never returned to his office after that date.

On November 19, 1979, Mrs. Wiley saw Dr. Allen Supple at his office in Franklin, Louisiana. Dr. Supple testified that Mrs. Wiley advised him that there was a broken segment of a dental instrument in the root canal of one of her teeth. Dr. Supple testified that Mrs. Wiley did not complain of pain at that time and that an examination of her gums showed that they were normal. Dr. Supple X-rayed Mrs. Wiley’s upper right central incisor and found a small segment of instrument lodged in the root canal. He advised Mrs. Wiley that he could attempt another root canal or extract the tooth. Mrs. Wiley left his office and did not return.

In December of 1979, Mrs. Wiley visited a Dr. Henderson in New Iberia, Louisiana, and he performed the dental surgery necessary to complete the root canal procedure.

II. NEGLIGENCE

The appellants contend that the district court erred in holding “that plaintiff failed to demonstrate a breach of duty owed to Mrs. Wiley by Dr. Karam, to use reasonable care and diligence, along with his best judgment in the application of his skill...” and by “disregarding the facts and admissions on the part of the defendant, Dr. Karam, that he knew before the instrument broke, that the root canal procedure was possibly impossible or next to impossible, yet he continued with the procedure without taking steps to guard against injury to Mrs. Wiley from this reasonably foreseeable contingency.”

In dental malpractice cases, the burden of proof is on a plaintiff to establish the dentist’s deviation from the standard of care required by others in the same field. La.R.S. 9:2794(C); White v. Edison, 361 So.2d 1292 (La.App. 1st Cir.1978), writs refused 363 So.2d 915 (La.1978). The elements of proof required in a dental malpractice case are set forth in La.R.S. 9:2794(A) as follows:

“A. In a malpractice action based on the negligence of ... a dentist licensed under R.S. 37:751 et seq., the plaintiff shall have the burden of proving:
(1)The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians or dentists licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians or dentists within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill, and
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.”

See also Lazar v. Federal Insurance Company, 380 So.2d 719 (La.App. 4th Cir.1980). The essence of these assignments of error is that Dr. Karam “failed to use reasonable care and diligence, along with his best judgment in the application of his skill as a dentist.” In determining whether or not a physician or dentist failed to exercise reasonable care and diligence, the views and opinions of expert witnesses who are members of his profession and who are qualified to testify on the subject are very persuasive, although not controlling. Guillory v. Buller, 398 So.2d 43 (La.App. 3rd Cir.1981).

Dr. Karam testified that upon drilling into Mrs. Wiley’s tooth, he found that the root canal was calcified to the point that successful completion of the root canal procedure was extremely difficult. He testified that during the procedure, he determined that completion of the root canal was next to impossible, but he continued to try to complete the procedure. The procedure lasted approximately one hour and the reamer broke near the end of that time. After it broke, he attempted to bypass it with no success. He then informed Mrs. Wiley what the problem was and gave her the available options.

Dr. Allen Supple, an expert in general dentistry, testified that he would have attempted the root canal therapy under the same circumstances as were presented to Dr. Karam when Mrs. Wiley visited him. He further testified that it was not uncommon to break a root canal reamer while performing that therapy and that the mere fact of breakage does not suggest negligence (breach of duty) by a dentist, because the breakage can also be caused by a faulty instrument and, in some cases, the instrument is intentionally broken to fill the root canal. Dr. Supple felt that the alternatives available when he examined Mrs. Wiley’s tooth containing the broken portion of the reamer were to either attempt another root canal or extract the tooth.

Dr. Joseph Caldwell was qualified as an expert witness in endodontics primarily dealing with root canals. He testified that the breaking of a root canal reamer in the canal is not necessarily negligence (breach of duty). He testified that the root canal reamer can be broken off intentionally as part of treatment, can break because it is defective, or can break from too much pressure. He further testified that the breaking of the root canal reamer does not necessarily preclude a successful final result. He was of the opinion that Dr. Karam was correct in recommending root canal therapy under the circumstances of this case. He further testified that after the root canal reamer broke, that the proper procedure was to advise the patient of the situation, after attempting to finish the root canal, and to tell her that the alternatives were to extract the tooth or have endodontic surgery which consisted of moving the gum tissue, entering the base of the tooth root through the bone, removing the infection directly and sealing off the root canal. Dr. Caldwell testified that to continue to work toward the completion of a root canal after realizing that the root canal procedure is extremely difficult is not unusual.

The trial judge determined as a matter of fact that the appellants failed to prove that Dr. Karam either lacked the degree of knowledge or skill, or failed to use reasonable care and diligence, along with his best judgment in the application of that skill and denied this claim. In view of the evidence of record, this determination by the trial judge was not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Deason v. Mobil Oil Corporation, 407 So.2d 486 (La.App. 1st Cir.1981).

III. INFORMED CONSENT

The appellants claim that “Dr. Karam breached his duty to Mrs. Wiley under the ‘doctrine of informed consent’ by failing to warn her of impending danger of harm when he determined that it was next to impossible for him to complete the root canal procedure, .... ”

A physician or dentist is not required to inform a patient of a remote or rare possibility, or an event which can not be reasonably anticipated under the Doctrine of Informed Consent. It is not required that the physician or dentist advise the patient as to every conceivable possibility and eventuality that may stem from treatment. A physician’s or dentist’s failure to disclose a possible danger is not a breach of duty on his part in the absence of a showing that the patient’s consent would have been withheld if the patient had been informed of the danger. LaCaze v. Collier, 416 So.2d 619 (La.App. 2nd Cir.1982); Babin v. St. Paul Fire and Marine Insurance Company, 385 So.2d 849 (La.App. 1st Cir.1980), writs refused 386 So.2d 358 (La.1980); Reynier v. Delta Women’s Clinic, Inc., 359 So.2d 733 (La.App. 4th Cir.1978).

The record shows that Dr. Karam consulted with Mrs. Wiley and explained the proposed therapy prior to the root canal procedure. After the root canal reamer broke off in her tooth, he informed her of this event and explained her options to her, asked her to consider which she elected, and to advise him how to proceed. Mrs. Wiley never returned to Dr. Karam and subsequently went to two other dentists, one of whom completed the root canal procedure ' by oral surgery. The possibility of a root canal reamer breaking did not involve a substantial risk to Mrs. Wiley because on occasion some dentists intentionally break off the reamers to block the root canal as part of the therapy. Dr. Karam was not required to advise Mrs. Wiley as to every conceivable possibility or eventuality that could stem from his treatment, especially during the course of the procedure itself. The trial judge ruled as a matter of fact that the appellants failed to prove a breach of the Informed Consent Doctrine and this determination is not clearly wrong. Arcen-eaux v. Domingue, supra.

IV. CONCLUSION

For the foregoing reasons, the judgment of the trial court is correct and is affirmed at appellants’ cost.

AFFIRMED.

      . Dr. Henderson was not called to testify at the trial.

      . The appellants do not contend that Dr. Kar-am did not possess the degree of knowledge or skill ordinarily exercised by dentists actively practicing in his community.

      . At the trial of the case, Mrs. Wiley maintained that Dr. Karam failed to advise her that the root canal reamer had broken in her tooth. Apparently, she has abandoned this claim on this appeal. Dr. Karam and his dental assistant, Juanetta M. Lalumandier, both testified that Dr. Karam advised Mrs. Wiley of the broken reamer. Dr. Supple testified that Mrs. Wiley told him that she had a piece of a broken instrument in her tooth when she visited him.


text:
    Charles J. SOLITO v. William CALDWELL, Sr., et al.
    No. 15011.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Keith M. Whipple, Houma, for plaintiff & appellant.
    Carlos E. Lazarus, Jr., Houma, for defendant Aetna Life & Cas. Co.
    Charles J. LeBlanc, Thibodaux, for defendants William Caldwell Sr. & Commercial Union Assur. Co.
    Before ELLIS, PONDER and SAVOIE, JJ.
   PONDER, Judge.

Plaintiff appealed devolutively from the judgment in his suit for injuries sustained in an automobile collision.

The defendants are William Caldwell, Sr.; his insurer, Commercial Union Assurance Company; and plaintiff’s uninsured motorist insurer, Aetna Casualty and Surety Company. The latter, joined because plaintiff asserted that Caldwell was under-insured, sought from Caldwell recovery of any amount for which it was held liable. The trial court awarded judgment against Caldwell and his insurer in the amount of $2,423.00, denied any recovery against Aet-na and dismissed Aetna’s claim against Caldwell. Plaintiff appealed claiming that the amount was inadequate.

The sole issue is the amount of the award. We affirm.

For about two and one-half months after the accident, plaintiff was treated by Dr. Thomas H. Givens for complaints of neck and shoulder pains. X-rays were negative except for arthritic changes in the cervical area. The doctor found intermittent slight muscle spasm, which, however, had disappeared entirely before discharge to full duty. About five months later, plaintiff began another series of visits, lasting to the time of trial with complaints of constant pain in the neck and shoulder. There were no objective symptoms, no muscle damage and no nerve root damage.

The doctor said that the complaints could be caused by neuritis, neuralgia or overexertion; that it was a possibility, but not a reasonable medical certainty; and that the symptoms and pain were results, of the accident.

Plaintiff was seen twice about six months after the accident by an orthopedic surgeon, who found on the first visit a slight limitation of lateral motion of the neck and a point tenderness over the lateral paraspi-nous muscle masses on the left. On the second visit plaintiff was released as asymptomatic and able to return to work.

Plaintiff testified that while he had not sustained actual loss of wages, he had used both sick and annual leave time because of the accident. Both plaintiff and his wife testified to his continuing pain and disability.

Plaintiff’s testimony as to his use of sick and annual leave was ambiguous and less than specific. His supervisors were unable to ascribe any relationship between the accident and the days off. At least some of the annual leave taken had been scheduled before the accident.

While the court did not assign reasons, it evidently and quite reasonably decided that the pains after the initial discharge by Dr. Givens were caused by neuritis, neuralgia or overexertion irritating the arthritic changes, and therefore were not caused by the accident. There is evidence in the record to support that conclusion. We find no error.

The medical expenses amounted to $423.00, of which $17.00 was for medical supplies and $91.00 was for x-rays. This leaves $2000.00 for the use of sick and annual leave and for general damages. In view of the minimal symptoms found by the doctors and the short time for recovery and discharge, we find the award to be within the wide discretion given the trier of fact.

For these reasons, the judgment is affirmed at appellant’s cost.

AFFIRMED.

      . Plaintiff mistakenly sued Aetna Life and Casualty Co.


author: ELLIS, Judge.

text:
    ANTIN QUEALY, INC. v. FINE JEWELERS GUILD OF LA., INC. d/b/a Hausmann’s.
    No. 15012.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    James A. Dukes, Hammond, for plaintiff-appellant.
    Christopher Moody, Hammond, for defendant-appellee.
    Before ELLIS, PONDER and SAVOIE, JJ.
   ELLIS, Judge.

This ease having been submitted without oral argument, and appellant having neither appeared nor filed its brief, this appeal is hereby dismissed as abandoned, pursuant to Rule 7, Section 5(b) of the Uniform Rules of the Courts of Appeal.

APPEAL DISMISSED.