author:
GARRISON, Judge.
      GULOTTA, Judge, REDMANN, Judge,

text:
    Samuel L. BENJAMIN v. UNITED STATES STEEL CORPORATION, Elgin-Joliet-Eastern Railroad, Illinois Central Railroad and New Orleans Public Belt Railroad.
    No. 11421.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 19, 1981.
    Rehearing Denied April 20, 1981.
    Writ Denied June 5,1981.

      Roberts & Katz, Bradford R. Roberts, II, New Orleans, for plaintiff-appellee.
    Chaffe, McCall, Phillips, Toler & Sarpy, Wiley G. Lastrapes, Jr., New Orleans, for United States Steel Corp., defendant-appel-lee.
    Dillon & Cambre, Gerard M. Dillon, Georges M. Legrand, New Orleans, for Illinois Central Railroad, defendant-appellee.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Warren M. Schultz, Jr., New Orleans, for New Orleans Public Belt Railroad, defendant-appellant.
    Before REDMANN, GULOTTA, SCHOTT, GARRISON and CHEHARDY, JJ.
   GARRISON, Judge.

Two circumstances of potential legal complication originated with this case, growing as it did out of Samuel Benjamin’s leg injuries received while working with steel beams in a railroad car in New Orleans. The first potential complication involved the multiplicity of other initial defendants with arguable causation roles — in connection with the shipment of the steel from Chicago down to New Orleans — prior to that of the New Orleans Public Belt Railroad, the last possessor of the well traveled box car at the time of the plaintiff’s accident. The second potential complication involved the fact that Benjamin was alone — with the consequent problem of an absence of eyewitnesses — at the time of the incident.

The trial judge resolved these issues by granting judgment in favor of the plaintiff and against the New Orleans Public Belt Railroad. The financial breakdown of Benjamin’s judgment was: %9,000.00 for his pain and suffering and $2,707.68 for his loss of wages, making a total of $11,707.68. Legal interest from date of judicial demand, until paid, and all costs were granted to the plaintiff. Following submission to a five man panel of this court, we affirm the trial court’s resolution of the issues.

Initially plaintiff had sued other defendants as well. Elgin-Joliet-Eastern Railway Company (hereafter EJE) was dismissed when the trial judge maintained exceptions to the jurisdiction. No appeal was taken from this judgment. Following the trial, U. S. Steel Corporation and Illinois Central Gulf Railroad (hereafter ICG) were dismissed. No third-party petitions were filed in the suit and only Public Belt appealed. Plaintiff did not answer the appeal nor is quantum an issue.

Public Belt contended on appeal that the trial judge erred in his finding of negligence on its part and in finding no negligence on the part of U. S. Steel or Illinois Central. The appealing defendant further claimed that plaintiff’s contributory negligence or the negligence of his fellow employees should have prevented recovery.

FACTUAL SUMMARY: THE DEFECTIVE TAILGATE

The railway car, property of EJE, was loaded with steel beams from U. S. Steel at its plant in South Chicago, Illinois. EJE then delivered the car to ICG, and the car thereafter was transported by ICG to New Orleans to the Public Belt yard there. While in the possession of Public Belt, and during the course of the unloading process, the accident occurred.

At the time, Benjamin was in the railroad car unloading the steel beams. It was his responsibility to connect clamps (described by plaintiff as “dogs”) from a crane wire to each beam, to be elevated by the crane and removed from the car. Plaintiff’s foot was seriously injured when struck by an uncontrolled beam as it was being raised a short distance by the crane, in accordance with the established procedure, so as to confirm that there was sufficient balance — the clamps having been attached — to swing the beam out of the box car. Plaintiff was alone in the car at the time and the accident was not witnessed.

The tailgate of the railroad car was not firmly secured in an upright position but was wired only partially upright. At the time the car was being unloaded, one of the two wires apparently had broken and the tailgate was leaning inward from the top at a 45° or 60° angle to the car. There were 30 or 40 I-beams in the car, some of which were sixty feet in length and stacked at the bottom of the ear and some forty feet in length and stacked on top of the longer beams. The car’s length was seventy feet.

According to Benjamin’s testimony, immediately prior to the accident the tailgate was leaning in a tilted position on an angle resting on the longer beams at the bottom of the car. After he had clamped the crane wire in the middle of one of the beams preparatory to elevation, the beam, when moved by the crane, did not elevate with balance but unexpectedly slid backward toward the tilted tailgate. One end of the beam then was caught under the tailgate thereby elevating the other end and resulting in the uncontrolled spinning of the beam causing it to strike plaintiff’s foot. According to the plaintiff’s claim, the failure on the part of one or more of defendants to see the defective condition of the tailgate and to secure it firmly in an upright position was the proximate cause of the accident.

It was stipulated by all counsel that, if ICG’s employees were called to testify, they would state that they inspected the railway car while it was under their control and no exceptions were noted, this indicating that there were no defects in the railway car and that the tailgate was secured in an upright position while it was in ICG’s possession and interchanged to Public Belt. It was further stipulated that, if inspection by ICG’s employer had revealed that the tailgate had been leaning into the car, the car would have been chalked and the tailgate would have been wired into an upright and secure position.

In a transcript which includes somewhat confusing testimony certain facts emerge. It is clear that the tailgate was leaning on an angle inside the railway car and was not secured in an upright position. It appears equally clear that, for whatever reasons, the tailgate had been inadequately wired, rather than firmly fixed in the normal manner at the rear of the box car, and had fallen into its slanted position at some stage of the loading process or some stage of transportation.

It is apparent also that plaintiff’s injuries resulted when his foot was struck by the steel beam as it was being elevated by the crane. Because the plaintiff was the only person in a position to see what occurred when the beam struck his ankle and his testimony at the trial to some extent was inconsistent with his earlier deposition, a description of the circumstances surrounding the accident is somewhat vague. We do not infer lack of credibility with regard to Benjamin’s testimony but only a recognition of plaintiff’s inability either to express precisely what happened or to see clearly what happened.

However, it is apparent that the most logical explanation of the incident nevertheless is the one described by Benjamin: that, as the beam was being elevated a short distance, one end caught under the leaning tailgate causing it to spin out of control and to strike him.

LEGAL CONSIDERATIONS

We are confronted with the determination as to whether the defective condition of the railway car’s tailgate resulted from Public Belt’s negligence, and/or the evidence of the other defendants, whether it was a cause in fact of the accident or, conversely, whether plaintiff or his co-employees were negligent. The last of these issues may be disposed of summarily. As the trial judge obviously concluded, there simply was no specific evidence from which negligence on the part of plaintiff’s co-employees could be concluded. With regard to the remaining considerations priority should be given to the issue of plaintiff’s contended contributory negligence because, in view of the state of the law when the accident occurred, an affirmative conclusion in this regard would end all other issues.

(a) Contributory Negligence

The trial judge plainly concluded that the plaintiff was not contributorily negligent. However, the evidence relating to the circumstances surrounding the accident requires further analysis in this regard.

Accepting plaintiff’s testimony that the steel beam, as it was being elevated, caught the leaning tailgate and thereafter spun out of control, we must dispose of the plaintiff’s possible responsibility reasonably to have anticipated or have foreseen the hazard. According to Benjamin, under ordinary circumstances, after the clamps were placed in the middle of the beam in order to assure balance, the crane operator was signalled to elevate the beam a short ways. If the beam appeared to be balanced, Benjamin then would move to a secure place and motion to the crane operator to lift it up from the railway car. In the absence of unexpected problems, the balanced beam should then be removed out of the car without incident.

In the instant case, however, Benjamin testified that after the clamps had been placed properly, again initially to ensure balance, the beam was elevated only for testing. However, it suddenly commenced to slide toward the tilted tailgate and, as described earlier in this opinion, the accident resulted.

Under ordinary circumstances, the tilted tailgate would not create any hazard to the worker placing the clamp on the beams inside the railway car. This conclusion is supported by the testimony of the crane operator and another co-worker both of whom testified that after the accident and plaintiff had been removed to the hospital, they returned to the railway car and safely removed the remaining beams, even though the tailgate remained in a tilted, angled position. Further, Benjamin testified that he had experience unloading steel beams, apparently without incident, while working on the river front.

Nevertheless, considering the evidence as a whole, we cannot conclude that it was foreseeable that Benjamin anticipate that the tilted, angled tailgate would constitute a hazard to the removal of the beam.

Accordingly, we conclude that no showing was made of plaintiff’s contributory negligence.

(b)Liability of the Defendants other than the New Orleans Public Belt Railroad

U. S. Steel: Although not clear from the record, the implication is that the EJE railway car was loaded with the I-beams by U. S. Steel employees at its Chicago plant. The evidence is clear that the beams were properly stacked in accordance with accepted methods with the longer beams stacked at the bottom of the car and the shorter beams on top. There exists no evidence in the record from which a conclusion could be reached finding U. S. Steel negligent or that U. S. Steel’s action in any way was a cause in fact of plaintiff's injury. Accordingly, U. S. Steel properly was exonerated from liability by the trial judge.

EJE: This defendant was dismissed on exceptions to the jurisdiction. No appeal was taken and that judgment is final.

ICG: A more serious area of concern is the question of ICG’s liability. Absent from the record is any evidence relating to the time and circumstances surrounding the wiring of the tailgate of the railway car. We are not informed whether the tailgate was wired in an upright secured position at the U. S. Steel yards or whether it was wired while the car was in possession of EJE or whether it was wired at any other location. We do have the benefit of the stipulation that the railway car was inspected by ICG employees when it was interchanged to them and no defects were noted regarding the security of the tailgate when they received the railway car. We also have the benefit of the stipulation that at the time Public Belt received the car from ICG, no exceptions were noted with regard to such physical security, a circumstance which would tend to indicate upright and secured position when it was interchanged to Public Belt. Considering these stipulations together, it appears reasonable to conclude that the tailgate was secured in an upright position when it came into the position and control of Public Belt. Under these circumstances we cannot conclude that the trial judge erred when he found, as necessarily he must have found, that no showing was made of negligence, which was a cause of plaintiff’s injury, on the part of ICG. Accordingly, we do not disturb the judgment exonerating ICG from liability.

(c)Liability of Public Belt

If we accept the veracity and truthfulness of the stipulation resulting in the exoneration of ICG from liability, and we accept the truthfulness of the stipulation resulting in a conclusion that the tailgate was in an upright position when placed in Public Belt’s possession and control, then we are left with the determination that any wiring, if pre-existing, either broke or became disconnected while under Public Belt’s control or, if that wiring was done after Public Belt acquired control, it was done inadequately. Unfortunately, the record is again devoid of any evidence relating to the condition of any wire when the railway car was in transit. Presumably, an inspection of the car, the tailgate and the wire would or should have revealed to Public Belt the weaknesses or defects in the wire which caused the tailgate to lean at so marked an angle within the railway car. Accordingly, we conclude that the apparent failure of Public Belt properly to inspect the wire securing the tailgate constituted negligence amounting to a cause in fact of Benjamin’s injury.

(d)Res Ipsa Loquitur

The essential resolution of this case then, in the regard of this opinion, is that the plaintiff Benjamin established the case that the defective tailgate, which defect developed during the car’s possession by Public Belt, was a cause in fact of his accident. Conversely, we conclude that the remaining defendant did not carry its burden of proving Benjamin’s contributory negligence. In short, the defendant’s burden to reverse the trial judge was not carried.

Nevertheless, it would not be realistic to fail to acknowledge that in this particular case the issue of the burden of proof was a close one. Understandably, the most conscientious evaluator considering the unobserved, traumatic incident might have difficulty with the vexing closeness in weighing the ultimate burden of proof.

Under our legal system the mere closeness of an issue cannot allow it to remain unresolved. In this case, a second basis exists for concluding that Public Belt is liable to Benjamin for his injuries and it is adopted by this opinion as an alternate and additional basis for its judgment. That is the applicability of the doctrine of res ipsa loquitur.

Even if it be concluded, for the sake of argument, that the burden of proof (which this opinion regards as carried by plaintiff’s testimony) is too close for comfort, the doctrine provides a formulation applicable to the aforedescribed evidence as a whole which nonetheless results in the conclusion that there must be judgment against Public Belt and for the plaintiff.

In Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621 (1972), on rehearing, Justice Tate’s review of the jurisprudence with regard to the issue of res ipsa loquitur contains portions which so aptly apply to the instant case that they require no further comment:

“Recently in Jordan v. Travelers Insurance Co., 257 La. 995, 245 So.2d 151, 155 (1971), we summarized the several judicial formulations of this burden of proof in civil cases and concluded:
‘In describing this burden of proof, the courts sometimes speak of proof to a “reasonable certainty” or to ‘legal certainty’; or of proof by evidence which is of ‘greater weight’ or ‘more convincing’ than that offered to the contrary; or (in the case of circumstantial evidence) of proof which excludes other reasonable hypotheses than the defendant’s tort with ‘a fair amount of certainty’. Whatever the descriptive term used, however, proof by direct or circumstantial evidence is sufficient to constitute a preponderance, when, taking the evidence as a whole, such proof shows that the fact or causation sought to be proved is more probable than not ...’
In this respect, the principle of ‘res ipsa loquitur’ (the thing speaks for itself) sometimes comes into play as a rule of circumstantial evidence, whereby negligence is inferred on the part of a defendant because the facts indicate this to be the more probable cause of injury in the absence of other as-plausible explanation by witnesses found credible.6, Pilie v. National Food Stores of Louisiana, 245 La. 276,158 So.2d 162 (1963); Larkin v. State Farm Mutual Auto Ins. Co., 233 La. 544, 97 So.2d 389 (1957); Malone, Res Ipsa Loquitur and Proof by Inference, 4 La.L. Rev. 70 (1941); Comment 25 La.L.Rev. 748 (1965). Thus, by this principle where properly applied, the circumstantial evidence indicates that the injury was caused by some negligence on the part of the defendant, without necessarily proving just what negligent act caused the injury.. .”

In conclusion, this court affirms the conclusion of the court below, confirming the granting of judgment against Public Belt and for the plaintiff in the amount of $9,000.00 for the latter’s pain and suffering and $2,707.68 for his loss of wages, adding up to a total of $11,707.68. with legal interest from date of judicial demand, until paid, and for all costs.

AFFIRMED.

GULOTTA and REDMANN, JJ., dissent and assign written reasons.

GULOTTA, Judge,

dissenting.

I respectfully dissent.

Because I conclude from the undisputed facts that Benjamin was contributorily negligent, I would reverse the trial court’s judgment. Assuming that the tilted tailgate resulted from the negligence of one or more of the defendants and was causally related to the plaintiff’s injuries, the undisputed testimony of plaintiff and his coworkers leads me to conclude that Benjamin’s injury resulted from his negligence.

The record indicates that plaintiff and the crane operator were aware of the tilted tailgate before unloading the car. Jessie Bourn, the crane operator, testified that when he first went out to the work site that morning he had seen the tailgate of the car lying on one of the longer beams at the bottom of the car. He further indicated that he could have raised the tilted gate to a vertical position and wired it back in place, but that he did not think it was necessary since the beam “wouldn’t have scraped that bad” and the abundance of room at the other end of the car would allow an experienced man in the car to hook up the beam and get it out “without any problem.” His belief that the tilted gate would not present any problem is evidenced by the safe removal of three beams from the car by Benjamin prior to the accident and the uneventful removal of the remainder of the carload after the accident while the gate remained in a tilted position.

Bourn further stated that after the accident he saw that all the beams were neatly stacked and that there was no problem with “shifting”. Benjamin himself testified that he had noticed the tailgate of the car was tilted and had a piece of wire on it before he began unloading the car. Although he mentioned the condition to the foreman, he did not ask the crane operator to straighten the gate.

Alexander T. Asprodites, president of Victory Iron Works, testified that Benjamin “knows how to hook up a beam and take it out of the car.” Plaintiff himself stated that he had experience unloading steel beams, apparently without incident, while working on the riverfront. In light of this testimony, the only logical inference to be drawn is that, under ordinary circumstances, the tilted tailgate would not create any hazard to an experienced worker placing the clamps on the beams inside the car.

According to Benjamin, after a beam was clamped in the middle, the crane operator would be signalled to elevate it approximately one or one-and-one-half feet. If the beam balanced, Benjamin would then move to a secure place, and signal the operator to elevate it out of the car. Benjamin testified that after the “dogs” had been placed on the forty-foot beam in question and it had “balanced” after being elevated, it began to slide toward the tilted tailgate. Significantly, he testified that the gate had not been leaning on the beam when he had first tried to pick it up, but that the beam was “just up under the edge of the gate” and “slid back maybe a foot, a foot-and-a-half.” He further indicated that the beam had been “already under the edge of the gate and it slipped back further.” It is also significant that the crane operator testified that nothing in the car could have kept Benjamin from looking at both ends of the beam or seeing that the tailgate was in a tilted position.

In light of Benjamin’s testimony and the other evidence indicating that the tilted tailgate would not hinder removal even of the long beam on which it was resting, the only logical inference is that Benjamin himself was contributorily negligent either in improperly clamping the beam such that it slid under the tailgate, or in signalling the crane operator to lift the beam when its end was “just up under the edge of the gate.”

REDMANN, Judge,

dissenting.

It is more probable than not that the accident did not happen as plaintiff testified: but even if it did, the position of the end-gate was not a cause-in-fact of the accident because the accident would have happened just the same if the end-gate were tied in an upright position. And the risk of injury like plaintiff’s is not one within Belt’s duty to verify the uprightness of the car’s end-gate.

The process for removing the 40-foot I-beam (from atop 60-foot beams in the 70-foot car) involved two steps. First, plaintiff would attach the crane cables’ two clamps to the beam, placing them so as to locate the beam’s center (and thus its center of gravity) between them, and the crane operator would then test-lift the beam just a foot or so to verify that the clamps were properly placed as to have the beam balanced for removal from the car. Second, the balanced beam would then be lifted by the crane the full distance out of the rail car to its destination.

The crane operator’s testimony is to the effect that this accident occurred during the first of these two steps. Because the 40-foot beam was centered in the 70-foot rail car the beam’s ends were each about 15 feet from the car’s ends. Plaintiff himself testified that the end-gate (less than four feet tall and hinged at the bottom) leaned into the car “maybe a foot and a half or two feet.”

Plaintiff testified that, as the 40-foot beam was being lifted he heard the sound of metal sliding on metal and that the beam being lifted slid or moved (“maybe two, two and a half feet”) under the leaning gate: “After it had slipped back and hit the gate and the wire [that was intended to secure the gate upright], it hit it, it broke and the gate fell on it and it [the beam] spinned out to the right. * * * Q. What prevented you from being able to handle this beam? A. Because it had slipped back and it never did get clear enough for me to get hold of it .... Q. Clear of what? A. Clear of this other beam, into the gate. When it slipped back, it slipped underneath the gate, it hit back under this gate.” [Emphasis added.]

Accepting that some sliding of metal on metal occurred, we can only explain it in three ways.

One possibility is that plaintiff did not properly center the clamps on the beam he was trying to move, with the consequence that, as the cables began to lift, the unbalanced beam’s heavier, longer portion would have begun to drag along the other beams on which it rested, dragging, however, toward the center of the car to which the cables were pulling it, rather than toward the end of the car. That possibility is not very likely because the crane operator testified that “the very instant that I started to pull on my lever [to first lift the beam] that is when he made the sound and went down.” Thus the beam was not lifted high enough for any imbalance to cause the long end to be dragged towards the middle.

The second possibility is that, as plaintiff’s own testimony virtually concedes, the beam he sought to lift was interlocked with another or others, and it was the upward scraping of the beam being lifted against the beam detaining it that plaintiff heard. One explanation of plaintiff’s injury is that the beam being lifted caused a shifting or “rolling over” of another beam onto plaintiff’s feet.

A final possibility, of course, is that the crane operator somehow moved the beam towards his right (though this unloading procedure called for moving it, after it was lifted straight up above the top of the rail car, to his left) instead of lifting it.

If so, there is no evidence that the end-, gate’s being upright would have altered the course of events, and therefore the gate’s leaning inward would not have been a cause-in-fact of plaintiff’s injury.

But it is not a possibility that the lifting of the beam caused the lifted beam itself to move lengthwise towards the end of the car even one foot, much less 15 feet. If the beam is balanced, it will lift up with both ends staying in the same relative position. If the beam is not balanced, the two ends will move, one upward and one downward, but both towards the point near the center where the cable is exerting its force, until, if lifted high enough, the beam would be nearly vertical, with its longer and heavier “half” aiming groundward and the shorter portion aiming skyward.

In any case, any duty to tie the car’s gates upright is not designed to protect against the risk that persons whose job and function and expertise it is to unload the steel beams from the car will botch their job by moving the beams under a tilted gate and injure themselves. See Bonura v. Commercial Union Ins. Co., La. 1981, 393 So.2d 1239.


source: Caselaw Access Project

author: EDWARDS, Judge. PONDER, Judge,

license: Public Domain

text:
    Lynwood ALBERT v. LOUISIANA STATE PENITENTIARY.
    No. 13857.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1981.
    Jose Cortina, Baton Rouge, for appellant.
    Annette R. Seng, Staff Atty., Dept, of Justice, Baton Rouge, for appellee.
    Before LOTTINGER, CHIASSON, EDWARDS, PONDER and COLE, JJ.
   EDWARDS, Judge.

Lynwood Albert, formerly an employee of the Louisiana Department of Corrections, appeals a decision of the Louisiana State Civil Service Commission upholding his firing as a guard at Angola. We reverse.

According to findings of the Civil Service Commission, the dormitory Albert was in charge of was inspected on Monday, February 5, 1979, and found to be unclean and disorderly. Albert was instructed by his superior, Lt. Gunnels, to have things cleaned up. On Gunnels’ return several hours later, no material change in the dormitory’s condition had been effected. Since Albert had been suspended in March of 1978 for the same reason, the February 5, 1979, incident was deemed a repeated offense and Albert was fired effective March 8, 1979. Albert’s termination was confirmed by the Civil Service Commission on April 9, 1980.

An examination of the record as a whole, in light of the law and jurisprudence, convinces us that the Civil Service Commission’s decision was clearly wrong.

Counsel for the Department of Corrections urges in brief that this court “is without authority to inquire into the weight and sufficiency of evidence to support the charge.” Counsel further insists that if there is any evidence to support the Civil Service Commission’s findings, this court may not reverse. These contentions are absolutely incorrect.

Article 5, section 10(B) of the Louisiana Constitution of 1974 provides:

“Except as limited to questions of law by this constitution, or as provided by law in the review of administrative agency determinations, appellate jurisdiction of a court of appeal extends to law and facts.”

Numerous cases hold that fact review of Civil Service Commission decisions and district court judgments is based on the same standard, manifest error. Herbert v. Department of Police, 362 So.2d 1190 (La. App. 4th Cir. 1978); Michel v. Department of Public Safety, Alcoholic Beverage Control, 341 So.2d 1161 (La.App. 1st Cir. 1976), writ denied 343 So.2d 1078 (1977). To the extent that Johnson v. Department of Finance, 354 So.2d 766 (La.App. 4th Cir. 1978), cited by the Department of Corrections, supports use of the “no evidence” standard, it is erroneous and will not be followed.

Article 10, section 8(A) of the Louisiana Constitution provides that:

“No person who has gained permanent status in the classified state or city service shall be subjected to disciplinary action except for cause expressed in writing. A classified employee subjected to such disciplinary action shall have the right of appeal to the appropriate commission. The burden of proof on appeal, as to the facts, shall be on the appointing authority.”

“Cause” exists if the facts disclose that an employee’s conduct impairs the efficiency of the public service. There must be a real and substantial relation between the employee’s conduct and the impairment of public service or cause is not present and any disciplinary action by the Civil Service Commission is arbitrary and capricious. Hamlett v. Division of Mental Health, Louisiana Health and Human Resources Administration, 325 So.2d 696 (La.App. 1st Cir. 1976); Leggett v. Northwestern State College, 242 La. 927, 140 S.2d 5 (1962).

Initially, the Department of Corrections failed to prove even the date on which the alleged incident occurred. Albert testified that the incident occurred on Sunday, February 4, 1979, a weekend day which would make keeping the dormitory clean a more difficult task. Willie Johnson, an elderly inmate whose testimony was somewhat confusing, supported Albert on this point. Lt. Gunnels testified that the incident occurred and was reported to Captain Fulton Raba-lais on February 5. No employment or work assignment records were introduced by the Department to support Lt. Gunnels testimony and, contrary to urgings of the Department, there is no more reason to find Albert’s contradictory testimony “self-serving” than to find Gunnels’ as unsupported and questionable.

The Department also failed to prove that Albert disobeyed Gunnels’ order to have the dormitory cleaned. Under normal conditions, three inmates were assigned to clean each dormitory. On the day in question, only Willie Johnson was available. Johnson had previously been medically certified for “no-duty” but had, at seventy-nine, volunteered for light-duty dormitory work. At Gunnels’ order to clean the dormitory, Albert so instructed Johnson. Albert maintained that Johnson did clean the dormitory while Gunnels testified that he did not.

The Department failed to establish either that the dormitory was in fact not cleaned or that, even if it had not been properly cleaned, Albert had sufficient, able-bodied help to do so.

Since Johnson was working alone and was elderly, there was, contrary to the Department’s contention, no reason for Albert to have reported him to Gunnels to be locked up for failure to do his work.

It is true that petty charges, none of which in isolation would justify dismissal, may, in the aggregate. Repeated and justified suspensions would meet such a test. Stiles v. Department of Public Safety, Drivers’ License Division, 361 So.2d 267 (La. App. 1st Cir. 1978).

In the present case, hotly contested and unproven charges relating to the degree of cleanliness of a prison dormitory do not justify dismissal. Even the presence of a prior suspension for the same offense, when viewed in the context of an otherwise clear six year record of employment, cannot make the alleged offense rise to a level justifying termination.

We do not imply that prison dormitories need not be kept clean or that orders to clean them need not be obeyed. We merely hold that in this case, the Department of Corrections failed to prove the offense charged and, therefore, failed to show that Albert’s actions had a real and substantial relation to an impairment of public service.

For the foregoing reasons, the Civil Service Commission decision appealed from is annulled and reversed. It is hereby ordered that Lynwood Albert be reinstated in his former position with all back pay, seniority and privileges, subject to a set-off for any wages and salaries earned in private employment during the period of illegal separation. For the express purpose of determining both the amount of set-off, if any, and the amount of costs, all of which are to be assessed against the Department of Corrections, the case is to be remanded to the Louisiana State Civil Service Commission.

REVERSED AND REMANDED.

PONDER, Judge,

dissenting.

I dissent.

On contradictory testimony the Louisiana Civil Service Commission elected to believe the testimony of the defendant’s witnesses rather than plaintiff’s. The majority is substituting its judgment for that of the Commission. I find no manifest error in the Commission’s findings.


author: PONDER, Judge.

text:
    Leonard Joseph LIPARI v. Leta L. LIPARI.
    No. 14001.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1981.

      Ron S. Macaluso, Hammond, for plaintiff.
    Curtis M. Baham, Jr., Hammond, for defendant.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Plaintiff appealed the judgment changing custody of a minor child.

The issues are: burden of proof, the best interest of the child, and abuse of discretion.

We affirm.

Defendant was awarded temporary custody of her minor child following a legal separation from plaintiff. Later, plaintiff obtained a divorce and a transfer of custody, the latter based at least partially on uncertainty of defendant’s employment prospects and place of residence. Both parties remarried; defendant reestablished her residence in Louisiana. Plaintiff’s second wife became agitated over defendant’s visitation privileges. On one occasion, the second wife struck the defendant in the sight of and screamed in the earshot of the child.

The court granted a change of custody, basing the transfer on defendant’s ability to provide a comfortable home, a preference for the natural mother, the second wife’s violent behavior and the minimal effect of a change on the child’s stability due to the short length of the father's custody.

Plaintiff claims defendant has not satisfied the “double burden” required of a party seeking a change of custody. Appellee argues that the 1979 amendment to Article 157 abrogates the “double burden” rule.

Even before the amendment, a mechanical application of the “double burden” test was not required, McCarstle v. McCars-tle, 356 So.2d 491 (1st Cir. 1977). Under the 1979 amendment the focal point is definitely the welfare of the child.

The record shows that on more than one occasion plaintiff’s second wife has behaved in a violent manner. We find the potential for violence deleterious to the child’s welfare and contrary to her best interest. Furthermore, defendant can provide the child with a loving and comfortable home.

Plaintiff next contends the trial court abused the wide discretion, which is given it because of the difficult decision involved in custody challenges. Stevens v. Stevens, 340 So.2d 584 (1st Cir. 1976). We find no abuse.

For the above reasons, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.

      . “... [I]t is incumbent upon the party requesting the modification to prove that the conditions under which the children are living are detrimental to their interests and further that the applicant can and will provide a good home and better environment if given their custody.” Decker v. Landry, 227 La. 603, 80 So.2d 91 (La. 1955).

      . LSA-C.C. Art. 157 (in part):
      “A. In all cases of separation and divorce, and changes of custody after an original award, permanent custody of the child or children shall be granted to the husband or the wife, in accordance with the best interest of the child or children, without any preference being given on the basis of the sex of the. parent. Such custody hearing may be held in private chambers of the judge. The party under whose care the child or children is placed, or to whose care the child or children has been entrusted, shall of right become natural tutor or tutrix of said child or children to the same extent and with the same effect as if the other party had died.”


author: EDWARDS, Judge.

text:
    Frank T. CACIOPPO and Bennie L. Ippolito v. TANGIPAHOA PARISH SCHOOL BOARD.
    No. 14009.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1981.
    Writ Granted May 1,1981.
    Leu Ann Lester Greco, Baton Rouge, for plaintiff.
    Gail K. Sheffield, Asst. Dist. Atty., Am-ite, for defendant.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Plaintiffs, Frank T. Cacioppo and Bennie L. Ippolito, brought suit against the Tangipahoa Parish School Board claiming that defendant improperly allocated sixteenth section funds only to schools located in the ward in which the producing sixteenth section lands were located.

Plaintiffs prayed for a temporary restraining order to stop defendant from disbursing these funds and an alternative writ of mandamus directing defendant to credit all sixteenth section revenues to its general fund for the equal use and benefit of all Tangipahoa Parish Schools. Plaintiffs further sought preliminary and permanent injunctions. The trial court granted a temporary restraining order but, following trial, dissolved it at plaintiffs’ cost. Plaintiffs appeal. We affirm.

The record shows that defendant deposits sixteenth section funds in the Tangipahoa Parish School Board general fund. The duly elected school board then, pursuant to a policy it has chosen to follow, keeps a record of how much sixteenth section revenue is produced by each ward and then disburses those particular funds, as needed, only to the schools within the ward from which the particular sixteenth section funds were generated.

Appellants urge that this policy violates LSA-R.S. 17:59, LSA-R.S. 30:154 and LSA-R.S. 41:718.

LSA-R.S. 17:59 provides:

“The general school fund of the parish school boards shall consist of the state public school fund, police jury appropriations, and such other school funds as may be provided in the constitution or other laws of the state, except such as are appropriated or designated for special purposes.
No special advantage shall be given out of the general school funds to the high schools. Buildings, additions to buildings, repairs, supplies, sites, and equipment may be provided out of the general funds. Communities desiring better facilities and longer sessions than can be provided by a distribution of the general funds giving equal session to all schools shall secure the same by voting special taxes or obtaining funds from other sources than the public or the general school funds.”

LSA-R.S. 30:154 provides, in pertinent part:

“C. In all cases where sixteenth section or school indemnity lands are leased, either by the State Mineral Board or the school board, all funds realized from these leases shall be paid to the school board of the parish where the lands are situated and credited to the current school fund of that parish, except that in the case of school indemnity lands, the lease shall be made by the State Mineral Board only and the funds credited to the parish school board entitled thereto.
D. In all cases where title to land exclusive of sixteenth section or school indemnity lands has been acquired by a school board for the benefit of a particular school or school district, funds realized from a lease of such lands either by the school board or the mineral board, shall be paid to the school board. The school board shall credit these funds to a special account and apply them to the uses of the particular school for whose benefit the grant was made.
If the particular school specified in the grant no longer exists, the funds shall be placed in the general fund of the school board.”

LSA-R.S. 41:718 provides, in pertinent part:

“A. In all eases of the lease of sixteenth section school lands, or of the sale of the timber thereon, the cash payment after deducting sufficient amount to cover the actual expenses incurred by the election and making the sale or lease, shall be credited to the account of the current school fund of the parish where the sixteenth section school lands are located. Notes representing deferred payments shall be placed in the hands of the parish school treasurer for collection, and when collected also credited to the current school fund of the parish, to be used for general school purposes.”

The statutes in question only require that the sixteenth section funds be deposited in the school board’s general fund. This has been done.

It is true that, thus far, defendant has limited how the properly deposited funds will be disbursed. But defendant is free to change its policy and even spend all the funds on schools in plaintiffs’ ward. How a school board, comprised of elected officials, spends its money is, within great limits, discretionary. See Op.Atty.Gen., Feb. 7, 1974. Clearly, plaintiffs’ remedy is in the political arena, not with this court.

For the foregoing reasons, the trial court judgment is affirmed and plaintiffs’ petition is dismissed. All costs, both trial and appellate, are to be paid by Frank T. Ca-cioppo and Bennie L. Ippolito.

AFFIRMED.


text:
    Bobby M. BROWN v. CITY OF BATON ROUGE, Louisiana.
    No. 14038.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1981.
    Vincent J. DeSalvo, Aub A. Ward, George & George, Ltd., Baton Rouge, for plaintiff-appellant Bobby M. Brown.
    Walter G. Monsour, Jr., Parish Atty., Charles E. Pilcher, Asst. Parish Atty., Baton Rouge, for defendant-appellee City of Baton Rouge, Louisiana.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Bobby M. Brown, plaintiff, appeals a trial court judgment dismissing his claim for workmen’s compensation and casting him for all costs including $125 in expert witness fees.

We have carefully read the record and transcript of testimony herein and are convinced that the reasons assigned by the trial court, a copy of which is attached, correctly dispose of all issues of both fact and law presented by this case.

For the foregoing reasons, the trial court judgment is affirmed. All costs of this appeal are to be paid by Bobby M. Brown.

AFFIRMED.

REASONS FOR JUDGMENT

This is a workmen’s compensation case arising under the provision of La.R.S. 23:1221, as amended by Act 583 of 1975, relative to disabilities.

Plaintiff, Bobby M. Brown, was injured while working for the City of Baton Rouge as a policeman. On October 30,1977, plaintiff was walking a ‘beat’ on Highland Road and as he stepped from the curb of Highland Road and Taft Street he slipped causing him to pull his body upward so he would not fall. This sudden movement caused him to pull a muscle in his lower back.

On November 3, 1977, plaintiff was examined by Dr. J. Louis Tonore, Jr., general practitioner, who found tenderness in the lumbo-sacral area. Medication was prescribed. Subsequently on November 7,1977 plaintiff was referred to Dr. James Poche, a neurosurgeon.

Dr. Poche testified he examined plaintiff on November 7, 1977, at which time plaintiff was complaining of low back pains. Dr. Poche noted that plaintiff revealed some loss of the lordotic curve, displayed a limp in the right leg and the sensory testing revealed a subjective decrease to pin on the dorsum of the great toe on the right side. Dr. Poche’s impression was that plaintiff had a herniated lumbar disc.

Plaintiff was treated conservative until February 21, 1978, when a lumbar myelo-gram revealed a herniated disc at L4-L5 level. Subsequently on February 23, 1978 the laminectomy was performed by Dr. Poche and the plaintiff discharged from the hospital on March 2, 1978.

Dr. Poche testified he examined the plaintiff on the following dates:

(1) May, 1978 — Complaining of stomach, back and leg pain.
(2) June, 1978 — Complaining that he can’t rest.
(3) July, 1978 — Back ache but no leg pain. Plaintiff told Dr. Poche there was no way he was going to return to work.
(4) September, 1978 — Same back pain. Dr. Poche recommended light duty.

Dr. Poche testified that it was his opinion that plaintiff could return to full duty.

On November 18, 1978, plaintiff was involved in an automobile accident from which he suffered injuries to his left shoulder, neck and back. His family physician, James T. Bernard, referred plaintiff to Dr. L. J. Messina, orthopedic surgeon, who examined plaintiff on November 30,1978, December 4, 1978 and January 10, 1979. According to Dr. Messina the plaintiff’s complaints were not evident by muscle spasm and further that plaintiff was responding inappropriately to the examinations. Dr. Messina was of the opinion that plaintiff could return to work. (Exhibit D-l)

Dr. Richard L. Bolton, orthopedic surgeon, testified by deposition that he examined the plaintiff once for evaluation and was of the opinion that he would be disabled for his occupation as a policeman. (Exhibit P-1, page 8). Dr. Bolton mentioned that one examination performed was inconsistent, that being the plaintiff performed the heel walking and toe walking, but when one pressed against plaintiff’s foot, it would give away with very slight resistance. (Exhibit P-1, page 9).

Plaintiff testified that he still experiences back pain in the lower back and is unable to return to his occupation as a policeman. He stated he sought employment with the State Police and Probation Office, however to date, he has not been employed. Plaintiff admitted that he occasionally rides his bicycle to a local convenient store and does do certain yard work at his home. Sgt. R. J. Roussell, Baton Rouge City Police, verified plaintiff’s yard work in that Sgt. Rous-sell testified he saw plaintiff with a wheel barrow and shovel spreading dirt at plaintiff’s house.

Dr. Bernard’s medical report (Exhibit P-4) reveals that prescriptions are still being issued to plaintiff, even though Dr. Bernard states he is unable to account for the persistent pain the plaintiff allegedly has.

Our jurisprudence is settled to the effect that in workmen’s compensation cases, as in other civil matters, plaintiff must establish his claim for benefits by a preponderance of evidence. By preponderance of evidence is meant that the evidence, as a whole, must establish it to be more probable than not that plaintiff suffers disability.

Considering the medical testimony of Dr. Poche and Dr. Messina, two treating physicians, both were of the opinion that plaintiff could return to work. Dr. Bolton examined plaintiff once for evaluation. Dr. Bernard gives no opinion as to disability, only that he can not account for plaintiff’s pains, however, he believes plaintiff to be a sincere man. Our jurisprudence provides that the testimony of physicians who examines and treats a party is entitled to greater weight than that of a physician who only examines a party at a later date. Knighten v. American Amusement Co., 272 So.2d 60 (La.App. 4th Cir. 1973).

The Court does not find that plaintiff has carried his burden of proof, therefore, plaintiff’s case will be dismissed at his cost.

The expert witness fee of Dr. Poche is fixed at $125.00.

Judgment will be signed accordingly.

May 13, 1980.

/s/ William H. Brown

William H. Brown Judge Division “I”


author: LOTTINGER, Judge.

text:
    INNISWOLD-JEFFERSON TERRACE CIVIC ASSOCIATION, INC. v. LOUISIANA HEALTH SERVICES & INDEMNITY COMPANY, INC. and East Baton Rouge Parish Planning Commission.
    No. 14040.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1981.

      Michael R. Connelly, Baton Rouge, for plaintiff-appellant Inniswold-Jefferson Terrace Civic Association, Inc.
    John R. Tharp and A. S. Easterly, III, Baton Rouge, for defendant-appellee Louisiana Health Services and Indemnity Company, Inc.
    James J. Zito, Asst. Parish Atty., Baton Rouge, for defendant-appellee East Baton Rouge Parish Planning Commission.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is a suit by the Inniswold-Jefferson Terrace Civic Association, Inc. for an injunction to prohibit the connection of two Baton Rouge subdivision streets to a commercial development proposed by Louisiana Health Services and Indemnity Company, Inc. (Blue Cross). From a trial court judgment recalling a temporary restraining order and refusing to issue a preliminary or permanent injunction, the plaintiff appeals.

FACTS

In 1979 Blue Cross submitted plans to the East Baton Rouge Parish Planning Commission (Planning Commission) for the development of a tract of commercial property adjacent to Inniswold Estates and Jefferson Terrace Subdivisions. The plat submitted with Blue Cross’ request indicated that two streets — South Floynell and Upton — would be ultimately tied in to the commercial development. In connection with its proposal, Blue Cross also submitted names of property owners adjacent to the proposed development.

On December 10, 1979, the Planning Commission held a public hearing on the Blue Cross proposal. About a week and a half prior to the meeting the adjacent property owners were notified of the public hearing by regular mail. The written notice stated that a preliminary plat for a development known as Blue Cross Plaza would be considered by the Planning Commission. The notice also contained a general statement regarding Planning Commission procedure during public hearings, as well as the time and place of the hearing.

The minutes of the December 10, 1979, hearing show that the street layout on the preliminary plat was approved by the Planning Commission on an 8 to 0 vote, with one member absent. The minutes do not reflect that anyone appeared in opposition to the tying in of the two streets. The motion to approve the street layout also provided that action would be deferred on Blue Cross’ proposal to place T-turnarounds in the parking lots of the development in lieu of cul-de-sacs, which are circular turnarounds generally required by the Baton Rouge subdivision ordinance.

On March 10, 1980, another public hearing was held on the Blue Cross Plaza development for the purpose of considering Blue Cross’ request to tie its project into a third subdivision street, West Inniswold Road, which had been deleted at the prior hearing. The second hearing was also held to consider the placement of T-turnarounds in lieu of cul-de-sacs in the parking area. The minutes of that hearing show that no one appeared in opposition to the proposal, which was approved 6 to 0 with three members absent. This hearing did not involve the tie-ins to South Floynell and Upton Streets which had been approved at the prior hearing.

At the request of Baton Rouge City Councilman Michael Roubique, who represents the residents of Inniswold and Jefferson Terrace Subdivisions on the council, the Planning Commission held a third public hearing on the Blue Cross development on April 7,1980. The minutes show that some 75 to 80 persons appeared at the hearing, some of whom objected to the street tie-ins and complained that they were unaware the tie-ins had been approved at the December 10, 1979, hearing. After listening to the comments, the Planning Commission voted to delete the connection to West Inniswold but to reaffirm the approval it had given to the other street layouts at the December 10 hearing. The vote was 5 to 2, with two members absent.

The final hearing on the Blue Cross Plaza Development was held on May 5, 1980, at which time the Planning Commission refused to reconsider its prior actions.

The Inniswold-Jefferson Terrace Civic Association, Inc. brought this suit on May 22, 1980. The plaintiff seeks a preliminary and permanent injunction to prohibit the Upton and South Floynell tie-ins. The plaintiff claims that irreparable harm would be incurred if the street tie-ins are allowed because additional traffic would threaten the residential integrity of the neighborhood and the safety of children in the area. The suit also claims that the Planning Commission is illegally constituted because some Planning Commission members are also members of other public bodies in violation of the dual office holding law. (La.R.S. 42:61 et seq.)

The suit further asserts that the Planning Commission failed to give adequate notice of the hearings as required by La.R.S. 33:113. A temporary restraining order prohibiting the pouring of concrete for the street tie-ins was issued but was ultimately recalled when the preliminary and permanent injunctions were refused.

This appeal followed. The plaintiff claims the trial court erred: (1) in denying plaintiff’s request for a preliminary injunction on the ground that the plaintiff failed to carry its burden of proof on the issue of whether adequate public hearings were held as required by La.R.S. 33:113; (2) in denying the plaintiff the right to present its evidence; (3) in denying the plaintiff’s request for a preliminary injunction and ruling that the Planning Commission was legally constituted; and (4) in deciding that plaintiff failed to carry its burden of proof on the issue of irreparable injury.

ADEQUATE PUBLIC HEARINGS

The gravamen of the plaintiff’s complaint in this respect is that the notice sent to adjacent property owners contained no indication that the street tie-ins were to be considered at the hearing. The plaintiff claims that the street tie-ins were the most important question confronting the residents of the subdivision but that the tie-ins were not reflected in the notice, the discussion at the December hearing or in the minutes of the Planning Commission. Additionally, the plaintiff claims that the preliminary plat submitted by Blue Cross contains no notation specifically concerning the Upton and South Floynell tie-ins. The plat uses dotted lines to show that the Upton and South Floynell tie-ins will be made to the Blue Cross development in the future.

La.R.S. 33:113 provides:

“A planning commission shall approve or disapprove a plat within sixty days after the submission thereof to it; otherwise such plat shall be deemed to have been approved, and a certificate to that effect shall be> issued by such commission on demand. The applicant for a commission’s approval may, however, waive this requirement and consent to an extension of such period. The ground of disapproval of any plat shall be stated upon the records of such commission. Any plat submitted to such commission shall contain the name and address of a person to whom notice of a hearing shall be sent; and no plat shall be acted on by such commission without affording a hearing thereon. Notice shall be sent to the said address by certified mail of the time and place of such hearing not less than five days before the date fixed therefor. Similar notice shall be mailed to the owners of land immediately adjoining the platted land, as their names appear upon the parish assessment rolls and, in the case of a parish planning commission, as such owners’ addresses appear in the directory of the parish; provided, however, that in parishes or municipalities with a population in excess of one hundred fifty thousand, the public hearing may be waived by the planning commission or planning authority for subdivisions creating five or less lots not involving the creation of any new streets, and provided further that the provisions in such waivers shall be clearly set forth in the official subdivision regulations. Every plat approved by a planning commission shall, by virtue of such approval, be deemed to be an amendment of or an addition to or a detail of the official plan and a part thereof. Approval of a plat shall not be deemed to constitute or effect an acceptance by the public of any street or other open space shown upon the plat. A planning commission may, from time to time, recommend to the local legislative body amendments to the zoning ordinance or map or additions thereto to conform to such commission’s recommendations for the zoning regulation of the territory comprised within approved subdivisions. “In the case of a parish planning commission, such requirements or restrictions shall be stated upon the plat prior to the approval and recording thereof and shall have the same force of law and be enforceable in the same manner and with the same sanctions and penalties and subject to the same power of amendment or repeal as though set out as a part of a zoning ordinance or map.”

This court held in Old Jefferson Civic Association, Inc. v. Planning Commission for the City of Baton Rouge and the Parish of East Baton Rouge, 364 So.2d 193 (La.App. 1st Cir. 1978), that La.R.S. 33:113 requires that a public hearing be held on a proposed subdivision plat before the Planning Commission can grant approval or disapproval of the plat. The court stated, “[T]he Planning Commission must fix a date within 60 days of submission for a hearing along with notifying both the party submitting the plat and the owners of the land immediately adjoining the platted land. The Planning Commission cannot grant approval or disapproval without such a hearing....” 364 So.2d at 196.

There is no question in the case at bar that a public hearing on the Blue Cross Plaza was held and that notice was sent to property owners at least a week in advance of the hearing. The trial judge so found and the record supports his finding. The minutes of the December 10, 1979, hearing show that a motion “to approve the street layout as revised, but to defer the action on turning circles” was passed unanimously. We find no requirement in La.R.S. 33:113 that adjacent property owners be notified by certified mail. Although there was some question about notice having been sent out for subsequent meetings, the record leaves no question that property owners received notice of the December 10, 1979, meeting. The plaintiff’s complaint that the adjacent property owners did not understand that the street tie-ins were being approved is understandable but without legal merit. When the Planning Commission sent written notice to adjacent property owners that a public hearing would be held on the Blue Cross Plaza development, the Commission complied with the provisions of La.R.S. 33:113. The property owners were thereby placed on notice that the development was being proposed, and the responsibility was theirs to determine what the development encompassed. We therefore reject the plaintiff’s contention that an adequate public hearing was not held in accordance with law.

EVIDENCE

The plaintiff claims it is aggrieved by a number of trial court rulings which prohibited or limited the introduction of evidence. In one instance the trial court refused to allow a real estate development expert to testify as to the possible impact of the traffic on residential streets. The trial court correctly disallowed this testimony because it went beyond the witness’ area of expertise.

In another, instance, the trial court refused to allow an eyewitness to the December 10 hearing to testify as to what he was told by members of the Planning Commission which purportedly would contradict the official records. This testimony was excluded as hearsay despite plaintiff’s contention that the off-the-record statements by the Planning Commission members were admissions against interest of the Planning Commission itself. When the trial judge rules that testimony of a witness is inadmissible, an offer of proof under La.C.C.P. art. 1636 can be made. An offer of proof would be proper when the trial judge refuses to allow the testimony of a witness on hearsay grounds, and it would be error to deny such a proffer. However, no offer of proof was made in this case and plaintiff cannot now complain on appeal. Carroll v. Guillot, 377 So.2d 310 (La.App. 3rd Cir. 1976).

The trial court excluded as irrelevant a map of the proposed development which was shown to a city council member át a council meeting and also as irrelevant the city councilman’s answer concerning his attempt to locate an approved preliminary plat in the public records. These rulings were certainly correct. The only plat that is relevant to this proceeding is the plat submitted by Blue Cross at the public hearing. This plat and the plats submitted at the subsequent hearings were all introduced into the evidence. Whether an approved plat is filed in the public records is irrelevant as to whether the Planning Commission’s action approving the plat is valid.

COMPOSITION OF PLANNING COMMISSION

The plaintiff claims that the Baton Rouge Planning Commission was illegally constituted at the time the Blue Cross Plaza was approved because some of the Commission members also served on other public bodies. The plaintiff notes that Article X, Section 22 of the Louisiana Constitution of 1974 requires the legislature to enact laws “defining, regulating and prohibiting dual office holding in state and local government.” Additionally, La.R.S. 33:103 provides that members of a commission, whether a parish or municipal planning commission, shall hold no other public office, with exceptions not relevant to this case.

The plaintiff presented no evidence at trial to prove that some members of the Baton Rouge Planning Commission also served on other public bodies. While the charter for the Baton Rouge City-Parish Government provides that certain members of the Planning Commission are to be chosen from certain other public bodies, there was no proof that these appointments were actually made. We will, however, discuss this issue as if such proof had been made.

While the dual office holding law may be applicable to the Planning Commission in the case at bar, the validity vel non of these members’ appointments to the Planning Commission is not subject to a collateral attack in an action of this nature. If the plaintiff thought the Planning Commission was illegally constituted it had an adequate remedy to test the validity of the appointments under La.R.S. 42:76. This court in Fakier v. Picou, 158 So.2d 285 (La.App. 1st Cir. 1963), affirmed 246 La. 639, 166 So.2d 257 (La.1964), held that parties seeking to test the legality of a municipal board should do so under the provisions of La.R.S. 42:76 et seq. rather than by a collateral attack in an action to have a decision of the board declared invalid. The court held that, “it is well established under Louisiana jurisprudence that acts of a de facto officer cannot be attacked by collaterally bringing into question his title to the office.” 158 So.2d at 288. The plaintiff’s remedy to test the validity of the Planning Commission’s appointments is a direct attack under La.R.S. 42:76.

IRREPARABLE INJURY

In its final specification of error, the plaintiff claims that it carried the burden of showing irreparable injury sufficient to merit an injunction. We agree with the trial court that the plaintiff failed to show that its members would be irreparably harmed by the tying in of the two streets at issue.

Therefore, for the above and foregoing reasons, the decision of the trial court is affirmed in all respects. The plaintiff will bear the costs of this appeal.

AFFIRMED.


text:
    CITY OF BATON ROUGE v. MISSISSIPPI VALLEY FOOD SERVICE CORPORATION.
    No. 14044.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1981.
    Walter G. Monsour, Jr., Parish Atty., Charles M. Raymond, Asst. Parish Atty., Baton Rouge, for plaintiff-appellant City of Baton Rouge.
    Robert L. Roland, Baton Rouge, for defendant-appellee Mississippi Valley Food Service Corp.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

The City of Baton Rouge appeals a trial court judgment dismissing its claim for unpaid taxes against Mississippi Valley Food Service Corporation. We affirm.

With several observations, we adopt as our own the excellent written reasons for judgment provided by Judge Doherty.

“Otha L. Scholfield, Director of Finance for the City of Baton Rouge and the Parish of East Baton Rouge, instituted this suit to collect sales taxes allegedly due to the City of Baton Rouge and the East Baton Rouge Parish School Board by Mississippi Valley Food Service Corporation, defendant, for the period of July, 1978, through January, 1980. Mississippi Valley Food Service Corporation asserts that no taxes are due because the transactions at issue are exempt. In the alternative, the defendant submits that it has rendered nontaxable services.

Mississippi Valley Food Service Corporation, hereafter referred to as Mississippi Valley, entered into an agreement with The Woman’s Hospital to manage the hospital’s food service facilities. (D-l). According to the agreement, Mississippi Valley is obligated to prepare and serve meals and refreshments in the hospital’s cafeteria and private dining rooms as well as to provide meals to the patients and staff. Counsel for the parties have stipulated that sales taxes have been collected by the plaintiff on all the defendant’s cafeteria sales, vending sales, and catering charges. The issue presently before this court is the determination of whether the sale of meals to patients and staff members is an exempt transaction or a nontaxable service and accordingly, is not subject to a sales tax.

Louisiana Revised Statutes 33:2711 and 33:2737 authorize the local governing authorities of a municipality or a school board to levy a sales and use tax. Pursuant to this authorization the City Council of the City of Baton Rouge enacted sales and use tax ordinances which are reenacted each year. The applicable ordinances to this suit are city ordinance numbers 3818, 3819, 3984, 3985, 4162, and 4163. (Joint Exhibit A, B, C, D, E, and F). The East Baton Rouge Parish School Board also adopted a sales and use tax ordinance. (Joint Exhibit G). Among other things, these ordinances impose a total 3% tax on the sales price of tangible personal property sold at retail which sum shall be collected from the dealer. Section 5(f) of the 1978 and 1979 City Ordinances and the School Board Ordinance include those exemptions granted by Louisiana Revised Statute 47:305 et seq. Section 5(f) of the City’s 1980 Ordinances specifies that the tax shall not be imposed on transactions ‘specifically mandated to include municipalities or parishes by the provisions of L.R.S. 47:305 et seq.’

The language of Section 5(f) of Ordinance Numbers 4162 and 4163 was amended to coincide with the legislature’s 1978 amendment to Lousiana Revised Statute 2716.1. Originally, Louisiana Revised Statute 2716.1 provided that if a transaciton was exempt under state law, it must also be exempt under the local ordinances unless otherwise excluded. By Acts 1978, No. 205, this statute was amended to provide that no exemption from sales and use taxes, granted subsequent to the effective date of the Act, by state law shall be applicable to any sales and use taxes imposed by local authorities unless the state exemption specifies that it applies to local sales and use taxes. Because the state law only provides that new state exemptions are not automatically included as a local tax exclusion, any exemption enacted prior to the effective date of Acts 1978, No. 205, is still a local tax exemption.

This court finds that the defendant’s actions which are at issue constitute a sale at retail of tangible personal property. The defendant provides meals to the hospital’s patients and staff and charges the hospital for these meals according to a schedule provided in their agreement. (D-l, paragraphs 7 and 9). Although the hospital ultimately charges the patients for their meals and includes the staff’s meals as part of their compensation, the hospital is considered a consumer in this transaction and the seller must collect a sales tax. Rule 66. (D-3).

Since there is a sale at retail, it is necessary to determine whether this sale is exempt pursuant to Louisiana Revised Statute 47:305(4). This statute provides as follows:

The sale at retail, the use, the consumption, the distribution, and the storage to be used or consumed in this state of the following tangible personal property is hereby specifically exempted from the tax imposed by this Chapter; gasoline; steam, water (not including mineral water or carbonated water or any water put in bottles, jugs, or containers, all of which are not exempted); electric power or energy; newspapers; fertilizer and containers used for farm products when sold directly to the farmer; natural gas; fuel oil, wood waste and bagasse and coal when used for boiler fuel; new trucks, new automobiles, and new aircraft dealers, with the approval of the secretary of the Department of Revenue and Taxation titled in the dealer’s name for use as demonstrators; and drugs prescribed by a physician or dentist, orthotic and prosthetic devices, and wheelchairs prescribed by physicians for personal consumption or use; the sale or purchase of any ostomy, ileostomy, or colostomy device or any other appliance, including catheters, or related item which is required as the result of any surgical procedure by which an artificial opening is created in the human body for the elimination of natural waste; patient aids prescribed by a physician for home use; food sold for preparation and consumption in the home, including by way of extension and not of limitation, bakery products; dairy products; soft drinks; fresh fruits and vegetables; and package foods requiring further preparation by the purchaser are exempt from the tax imposed by this Chapter. Sales of meals furnished to the staff and students of educational institutions, including kindergardens; the staff and patients of hospitals; the staff, inmates and patients of mental institutions; boarders of rooming houses; and occasional meals furnished in connection with or by educational, religious, or medical organizations are exempt from the taxes imposed by this Chapter, if the meals are consumed on the premises where purchased; however, sales by any of the above in facilities open to outsiders or to the general public are not exempt from the taxes imposed by this Chapter. Food sales by restaurants, drive-ins, snack bars, candy and nut counters, private clubs, and sales made by an establishment not specifically exempted elsewhere, who furnish facilities for the consumption of the food on the premises, are not exempt from the taxes imposed by this Chapter.
The exemption for food and drugs, or-thotic and prosthetic devices, and wheelchairs prescribed by physicians for personal consumption or use, for patient aids prescribed by a physician for home use and, for ostomy, ileostomy, or colostomy devices or other appliance, including catheters, or related items required as the result of any surgical procedure by which an artificial opening is created in the human body for the elimination of natural waste, applies only to sales taxes imposed by the state of Louisiana and does not apply to such taxes authorized and imposed by any school board, municipality, or other local taxing authority, notwithstanding any other provisions of law to the contrary and specifically, but not exclusively, R.S. 33:2716.1. However, sales taxes authorized and imposed by any school board, municipality, or other local taxing authority shall not apply to the sale of prescription drugs under the pharmaceutical vendor program of Title XIX of the Social Security Act as administered by the Department of Health and Human Resources of the state óf Louisiana. (Emphasis added by the court)

Because the exemption concerning the sale of meals to the patients and staff of hospitals was enacted in 1974, this transaction is exempt from local taxation. Generally, exemptions are enacted in situations where a sales tax would seriously injure the consumer or be unfair. Nonetheless exemptions from paying taxes are strictly construed against the taxpayer. A & P Boat Rentals, Inc. v. Cronvich, 361 So.2d 1260 (La.App. 1st Cir. 1978), writ denied 363 So.2d 923 (La.1978). Therefore, the taxpayer must specifically and unequivocally prove that the transaction is exempt.

It is the plaintiff’s position that these meals are taxable and not exempt. The plaintiff submits that these sales are not exempt because they are ‘food sales’ and accordingly, not exempt. Additionally, the word ‘food’ encompasses the lesser word ‘meal;’ therefore, the City and School Board can tax this transaction since state law specifically allows authorities to tax food. La. R.S. 47:305(4).

The defendant argues that the sale of meals to the hospital’s staff and patients is exempt by virtue of Louisiana Revised Statutes 47:305(4), 33:2716.1 and Section 5(f) of the respective local ordinances. The defendant contends that food and the sale of meals are separate items with separate exemptions. Therefore, although food is not exempt from local taxation, the sale of a meal to the individual by certain facilities specified in the statute are exempt. In support of its argument, the defendant points to the legislative history concerning the food exemption enactments. In 1973, the legislature enacted the food and drug exemption to cover both the state sales tax statutes, but further provided that this exemption did not apply to local taxes. The next year the exemption for the sale of meals to the staff and patients of hospitals was added to Louisiana Revised Statute 47:305(4) has been modified, the pertinent parts remain the same. Because the legislature did not particularly enumerate the sale of meals in the second paragraph of the statute when it included other specific items, the defendant urges that the sale of meals remains exempt.

Ray Blanchard, Revenue Supervisor for the City-Parish, testified that the defendant deducted the amount it received from the sale of meals to the hospital’s staff and patients from their gross sales on their tax return. The defendant did pay tax on the amount it received from its cafeteria sales. Paul Punk, Director of Contract Administration for the defendant, stated the same facts in his affidavit. (D-2).

The facts indicate that the defendant operates the food facilities in the same manner as the hospital originally operated them. Thomas Hightower, an employee of Woman’s Hospital, testified that the defendant has managed the food services for the hospital for five years, and few individuals are aware that the defendant, and the hospital, is actually in charge of the food facilities. The patients are served their meals by nurses and no charge for sales tax for the patient’s meals is placed on their bills.

When the law is clear, the letter of it should not be disregarded; however, when the law is ambiguous, the court may inquire into the intention of the legislature, the history of the law and/or examine the context in which it is used. Civ.Code Arts. 13, 16 and 18. From a cursory examination it appears that Louisiana Revised Statute 47:305(4) could be subject of more than one interpretation. However, upon studying it thoroughly, the court finds that it is more reasonable to conclude that the defendant’s sale of meals to patients and staff of The Woman’s Hospital is an exempt transaction. It is clear that the transaction at issue is not a sale of food for preparation and consumption in the home or a sale of food by a restaurant or other enumerated establishments. The fact that the defendant also provides meals to the general public in the hospital’s facilities does not affect the exemption for the sale of meals directly to the patients and' staff. The second paragraph of Louisiana Revised Statute 47:305(4) lists items named in the first paragraph as not being exempt from local taxation. The ‘sale of meals’ is not included in this section whereas other specified items are included. This court determines that the word ‘food’ does not encompass the sale of a meal under the circumstances described in the first paragraph of the statute.

For these reasons the court determines that the defendant has proved that the transaction at issue is specifically exempt from the sales and use taxes levied by the City of Baton Rouge and the East Baton Rouge Parish School Board. Accordingly, there is judgment in favor of the defendant, Mississippi Valley Food Service Corporation, and against the plaintiff, Otha L. Scholfield, Director of Finance for the City of Baton Rouge and the Parish of East Baton Rouge rejecting the plaintiff’s demands. Further, it is ordered that the assessment against the defendant be erased, and that the plaintiff pay all those costs which it is required to do so under the law.”

There is no doubt that the sale of meals to the staff and patients of hospitals is tax exempt under LSA-R.S. 47:305(4), the City’s argument that the term “food” swallows up the term “Sales of meals” to the contrary notwithstanding.

Nor is there doubt that the meals, prepared by defendant in the hospital’s own kitchen and served to both patients and staff, are exempt from the sales tax.

The trial court found that Rule 66, established by the Director of Finance as an aid in the construction and administration of the sales tax ordinance, required the hospital to be classified as a consumer. This finding is incorrect. In the most literal sense, those who eat the meals, the patients "and the staff, are consumers. Nothing in R.S. 47:305(4) requires that the meals be served by the hospital itself to be exempt.

It is urged by the City that since Mississippi Valley is paid by volume, there is no “sale at retail” which could be exempt. This argument is specious. Contrary to the City’s claim that there can be no retail sale where there is “a later retail charge” to patients and staff, the record discloses that there is no “later retail charge” to patients or staff. It would be ludicrous for us to hold that the only way for a seriously ill patient’s meal to be tax exempt would for the hospital to serve it and make the patient reach for his wallet on the spot.

The whole purpose of exempting patients’ meals is to keep hospitalization costs down. To adopt the City’s position would result in patients paying more for the same food simply because the hospital had its chicken fried by an outsider.

For the foregoing reasons, the trial court judgment is affirmed. All costs, both trial and appellate, which amount to $146.29, are to be paid by the City of Baton Rouge.

AFFIRMED.

      . Rule 66
      Hospitals and sanitariums are primarily engaged in the business of selling services and for the purpose of the sales tax they are declared to be consumers or users of all tangible personal property purchased for use or consumption in connection with the operation of the institution and the sellers of tangible personal property to such institutions must collect from them the tax levied by this ordinance. If a hospital or sanitarium operates any divisions that sell tangible personal property in competition with other businesses, such as a prescription department, cafeteria, coffee shop, cold drink stand, medicines and other supplies of any nature which are classified as tangible personal property, then the hospital or sanitarium becomes liable for the tax upon the gross receipts or gross proceeds derived from such sales and must file regular monthly sales tax returns.

      . LSA-R.S. 13:5112 requires that a specific dollar figure be decreed when costs are assessed against a political subdivision of the state.


text:
    Carlos A. SANTINY v. Steve A. STROUGHTER et al.
    No. 14048.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1981.
    Rehearing Denied April 13, 1981.
    Writ Denied June 5, 1981.

      S.Chris Smith, III, Leesville, for plaintiff-appellant Carlos A. Santiny.
    Walton J. Barnes, Baton Rouge, for defendant-appellee Steve A. Stroughter.
    Daniel J. Dziuba, Baton Rouge, for defendant-appellee Eastern Ins. Co.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Plaintiff appealed the dismissal of his suit for uninsured motorist benefits.

The sole issue is the effective date of cancellation of an insurance binder.

We affirm.

On May 9, 1979, plaintiff, then a resident of Florida, applied through the Bruner’s Insurance Agency in Florida for uninsured motorist coverage with Southeastern Fidelity Insurance Company. Bruner’s bound coverage for plaintiff until it was notified of rejection by Southeastern Fidelity Insurance Company on May 21, 1979. In the meantime, plaintiff left Florida to attend LSU in Baton Rouge without leaving a forwarding address. As a result, Bruner’s correspondence to plaintiff was delayed. After attempting to notify plaintiff of the rejection and receiving no response, Bruner’s tried to get coverage with Eastern Insurance Company. Not having an application for Eastern, Bruner’s filed an application on another company’s form and mailed it to Eastern’s broker, Jack West & Associates, Inc., on May 25, 1979, binding coverage from that date. On June 5, 1979, plaintiff wrote to Bruner’s requesting that his policy be cancelled “at this time”. On the same date, Jack West & Associates wrote Bruner’s requesting plaintiff complete an Eastern application form. When no application was forthcoming, Jack West & Associates sent a notice of cancellation of the binder to plaintiff on June 22 effective as of July 5. Bruner’s then notified Jack West & Associates of plaintiff’s letter of cancellation and Jack West & Associates “flat cancelled” the binder.

Plaintiff was injured June 12,1979 by the negligence of an uninsured motorist.

Accepting June 5, 1979, as the date of cancellation, the trial court dismissed plaintiff’s suit against defendant Eastern.

Plaintiff argues the cancellation of Eastern’s binder was not effective until July 5, 1979. He contends the only written documentary evidence of the cancellation of his binder is the notice given a July 5 effective date. He attempts to explain that he thought he would have a 30 day grace period after his own written request for cancellation, “at this time” dated June 5, 1979.

He further contends the June 22, 1979 notice was responsive to plaintiff’s letter of cancellation. We find no error in the court’s acceptance of defendant broker’s testimony that the June 22, 1979 notice of cancellation was based upon plaintiff’s failure to submit a proper application. Only after Jack West & Associates received notice from Bruner’s of plaintiff’s June 5, 1979 request for cancellation did it “flat cancel” the binder.

We agree with the trial court that plaintiff’s written request complies with the cancellation provision of Eastern’s policy. Mouchon v. Palmer, 265 So.2d 429 (Florida App. 4th Dist. 1972).

Plaintiff next contends the request for cancellation cannot be interpreted to ask cancellation retroactively to May 29, 1979. Defendant testified that because plaintiff had not submitted a proper application the binder was cancelled as if it had never been issued and plaintiff refunded his full premium. At the least, plaintiff’s letter indicates an intention for his policy to be cancelled as of June 5, 1979, seven days prior to his accident.

Plaintiff last contends his original application prohibits “flat cancellations”. This application was rejected by Southeastern approximately three weeks before plaintiff requested cancellation of his insurance coverage. The only coverage in effect at the time of plaintiff’s request was a binder issued by Jack West & Associates, Inc. for Eastern Insurance Company. There is no evidence Eastern prohibited “flat cancellations”. Jack West testified that the usual company procedure was to cancel a policy upon an insured’s request the day after the postmark. In this case, as no proper application had been received before the request for cancellation, Jack West & Associates cancelled the binder retroactive to its issuance and returned all of plaintiff’s money.

Plaintiff’s reliance on LSA-R.S. 22:636 and the jurisprudence thereunder is misplaced. In the first place, the statute would be inapplicable to an insurance policy issued in Florida to a Florida resident. Furthermore, the statute addresses itself to cancellation of a policy by the insurance company. The cancellation here was on plaintiff’s own initiative.

For the above reasons, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.

      . The term “flat cancelled” means the binder is cancelled as if never issued and all the premium is refunded.

      . “CONDITIONS
      10. Cancellation: This policy may be can-celled by the named insured by surrender thereof to the company or any of its authorized agents or by mailing to the company written notice stating when thereafter the cancellation shall be effective.”

      . LSA-R.S. 22:636:
      “A. Cancellation by the insurer of any policy which by its terms is cancellable at the option of the insurer, or of any binder based on such policy, may be effected as to any interest only upon compliance with either or both of the following:
      (1) Written notice of such cancellation must be actually delivered or mailed to the insured or to his representative in charge of the subject of the insurance not less than five days prior to the effective date of the cancellation.
      (2) Like notice must also be so delivered or mailed to each mortgagee, pledgee, or other known person shown by the policy to have an interest in any loss which may occur thereunder.
      B. The mailing of any such notice shall be effected by depositing it in a sealed envelope, directed to the addressee at his last address as known to the insurer or as shown by the insurer’s records, with proper prepaid postage affixed, in a letter depository of the United States Post Office. The insurer shall retain in its records any such item so mailed, together with its envelope, which was returned by the Post Office upon failure to find, or deliver the mailing to the addressee.
      C. The affidavit of the individual making or supervising such a mailing, shall constitute pri-ma facie evidence of such facts of the mailing as are therein affirmed.

        D. The portion of any premium paid to the insurer on account of the policy, unearned because of the cancellation and in amount as computed on the pro rata basis, must be actually paid to the insured or other person entitled thereto as shown by the policy or by any endorsement thereon, or be mailed to the insured or such person as soon as practicable following such cancellation. Any such payment may be made l?y cash, or by check, bank draft, or money order.
      E. This Section shall not apply to temporary life insurance binders nor to contracts of life or health and accident insurance which do not contain a provision for cancellation prior to the date to which premiums have been paid, not to the contracts provided in Part XV of this Chapter.”


text:
    Yvonne THOMAS, Individually and as Administratrix of the Estate of her Minor Child, Stacy A. Thomas and Albert Thompson v. TRANSPORTATION INSURANCE COMPANY, Service Engineers Company, Inc., and Dalmar Faustino.
    No. 14049.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1981.
    Walter C. Dumas, Joseph A. Gladney, Baton Rouge, for plaintiffs-appellants Yvonne Thomas, Indiv., and as Administratrix of the Estate of her minor child, Stacy A. Thomas and Albert Thompson.
    Charles A. O’Brien, III, Baton Rouge, for defendants-appellees Transport Ins. Co., United Transport Co. and Layman Riley Brittain.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Stacy Thomas was injured in an automobile accident on November 14, 1977. By means of an original petition and four supplemental and amending petitions, suit was brought against Layman Riley Brittain, United Transport Company and Transport Insurance Company. Plaintiff sought $3,453,103.75 in damages. Defendants admitted liability, disputed quantum, and prayed for a trial by jury. Following trial, the jury, by a vote of 11 — 1, awarded Stacy $5,000 in damages. After making the jury verdict the judgment of the trial court, the district judge also awarded plaintiff interest and all costs, including expert witness fees. Plaintiff appeals.

Appellant claims that the accident of November 14, 1977, caused her mental condition, allegedly that of a compensated schizophrenic, to become decompensated and to develop into “full-blown” schizophrenia. She urges that the accident has prevented her from becoming a nurse.

A review of the record shows that, for at least two years prior to the accident in question, Stacy Thomas had serious personal problems. Her attendance and behavior at school were poor. Her grades were mostly D’s and F’s. She suffered from the effects of rheumatic fever.

Stacy’s mother, Marie Yvonne Thomas, while testifying as to Stacy’s mental condition, was impeached.

Dr. Francisco Silva, a psychiatrist, conceded that any stress could cause the de-compensation of a schizophrenic and admitted that his views were entirely based on what was told him by Stacy and her mother, long after the accident. He also testified that, regardless of the accident, Stacy would probably not have become a nurse.

The jury observed all the witnesses, viewed all the evidence, heard all the testimony, and apparently concluded that, more likely than not, the actions of defendants neither caused nor aggravated Stacy’s purported schizophrenia. We agree with this conclusion and can find no manifest error by the jury.

For the foregoing reasons, the trial court judgment is affirmed. All costs of this appeal are to be paid by Stacy Thomas and Marie Yvonne Thomas.

AFFIRMED.