author: SHORTESS, Judge.

text:
    Robert C. DAWSON, Jr., et al. v. L. J. GREZAFFI.
    No. 14960.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.

      Michael E. Parks, D’Aquila & Parks, New Roads, for plaintiffs-appellants.
    Francis A. Smith, Jr., Kearney, Smith & Chustz, New Roads, for defendant-appellee.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   SHORTESS, Judge.

Robert C. Dawson, Jr., Lyde Ann Dawson Eichsteadt, Calvert A. Dawson, Mary Dawson Olinde, Mae Merril Dawson Kaiser, Blase Merton Dawson, Quenton Joseph Dawson, Rose Mary Dawson Landry, June Dawson Purpera, and Myrtle McGraw Dawson (appellants) have appealed from a judgment which dismissed their petitory action, wherein they sought to be recognized as owners of the following described property:

A certain lot of land with all buildings and improvements thereon and all rights, ways, privileges, servitudes and appurtenances thereunto belonging or in any wise appertaining, situated in the Parish of Pointe Coupee, State of Louisiana, having a front of three (3) acres on the right of way of the Texas and Pacific Rwy. Co., by a depth between parallel lines of three (3) acres, and being bounded in front or North by the right of way aforesaid, South and West by land now or formerly of Charles W. Dawson, and on the East by the road known as Deaton Lane.

Title to this property was acquired by appellants’ predecessors in title on January 7, 1948, and it was stipulated that appellants were the proper legal parties to bring this action.

On April 24, 1959, appellants’ predecessors by act of mortgage, mortgaged six items of immovable and movable property, to the Bank of New Roads. The error complained of in this appeal, simply stated, is that this act of mortgage did not clearly and expressly describe the above-described tract; that the mortgage was vague and ambiguous; and that this tract was not included in the mortgage.

The trial court, with written reasons, found that the tract described above (item 1 of the mortgage) was clearly and properly described and included in the mortgage; that in item 4, where a larger tract containing 53 acres was also hypothe-cated, the above-described tract was excluded from that description. The trial court felt that the language which excluded the above-described tract was necessary to properly describe the 53-acre tract.

Article 3306 of our Civil Code provides: To render a conventional mortgage valid, it is necessary that the act establishing it shall state precisely the nature and situation of each of the immovables on which the mortgage is granted.

The law in this regard has historically been interpreted as in State ex rel. Brisbois v. Recorder of Mortgages, 1915, 13 Orleans App. 229:

An inscription of a conventional mortgage must substantially describe the mortgaged property. It must be reasonably accurate and full in itself, so far as to inform the public what property is covered; . . .

The description of the property set forth in item 4 recites as follows:

4th: (A) A certain tract of land, situated in the Parish of Pointe Coupee, State of Louisiana, containing fifty-three (53) acres, more or less, bounded in front by F. Bourgeois and Emile Bourgeois, above by Edwin Vosburg, below by Dolph Dea-ton and in the rear by Charles Debetaz (all now or formerly).
Being the same property which was acquired by Charles W. Dawson from Frank F. Bourgeois as per Act of Sale dated March 4, 1908, filed and recorded under Entry No. 25585, Conveyance Records, Parish of Pointe Coupee, Louisiana.
(B) A certain tract of land, situated in the Parish of Pointe Coupee, State of Louisiana, containing four (4) acres, bounded in front by the right-of-way of the Texas and Pacific Railway Company, above by land of Edwin Vosburg, below by lands of Emile Bourgeois and in the rear by lands of Charles W. Dawson (all now or formerly).
Being the same property which was acquired by Charles W. Dawson from Frank F. Bourgeois as per Act of Sale dated October 18,1910, filed and recorded under Entry No. 27269, Conveyance Records, Parish of Pointe Coupee, Louisiana. LESS AND EXCEPT THEREFROM:
First: A certain lot or parcel of ground, situated in the Parish of Pointe Coupee, State of Louisiana, having a front of three (3) acres on the right-of-way of The Texas and Pacific Railway Company by a depth between parallel lines of three (3) acres and being bounded in front or North by the right-of-way aforesaid, South and West by the remainder of lands of Charles W. Dawson or assigns, and on the East by a road known as Deaton Lane.
Second: A certain tract or parcel of land, with all the buildings and improvements thereon, situated in the Parish of Pointe Coupee, State of Louisiana, containing forty (40) acres, more or less bounded in front or North by the right-of-way of the Texas and Pacific Railway Company, on the East by the middle of Patsy Bayou, in the rear or South by property formerly of Chas. Debetaz and by property of Mrs. Elizabeth Gilmer Lacour and on the West by property of Mrs. Elizabeth Gilmer Lacour.

We agree with the trial court. It was correct in its conclusion that the “less and except” language contained in item 4 was necessary to properly describe the tract which was being mortgaged. It did not refer to the mortgage instrument itself, and did not remove item 1 from the mortgage.

For these reasons, the judgment of the trial court is affirmed at appellants’ costs.

AFFIRMED.


source: Caselaw Access Project

author: LOTTINGER, Judge.

license: Public Domain

text:
    Joseph CORONA, Jr. v. Jane Dunbar, Wife of/and George DUNBAR and Travelers Insurance Company.
    No. 14961.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.

      Mark Alan Jolissaint, Slidell, for plaintiff, appellant.
    France W. Watts, III, Franklinton, for defendants, appellees.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   LOTTINGER, Judge.

This is an action ex delicto. Joseph Corona, Jr. sued Jane Dunbar, wife of /and George Dunbar, and the Travelers Insurance Company for damages sustained as the result of an automobile accident. From judgment in favor of defendants, plaintiff has appealed.

FACTS

The suit arose from an automobile accident occurring July 19,1979 at the intersection of Nunez Road and Legendre Drive in St. Tammany Parish. The intersection is a wide-mouthed “Y” shape, with Nunez Road being the base and Legendre Drive (in a sweeping curve) forming both forks of the “Y.” The “Y” shape is not perfectly created, since the three branches do not meet at any specific central point, but rather form three distinct two-lane passageways which connect the three branches of the “Y.” In the middle of the three two-lane passageways (i.e., the exact center of the intersection) is a very large collection of loose gravel. The intersection has no traffic control devices whatsoever. Neither Nunez Road or Legendre Drive has a visible center stripe. Plaintiff was traveling along the right fork of the “Y” (Legendre Drive) in an easterly direction at 9:45 a. m. on the date of the accident, and as he approached the intersection, he attempted to execute a left turn onto Nunez Drive.

In the meantime, defendant, Jane Dunbar, was simultaneously traveling along Nunez Road in a southerly direction. As she approached the “Y”-shaped intersection, she attempted to execute a right turn onto that part of Legendre Drive composing the right fork of the “Y.”

A collision of the two automobiles occurred at a point about halfway along the curving two-lane passageway which connected the base of the “Y” to the right fork. Because of shrubbery and trees, neither driver was able to see the other vehicle well until shortly before impact. Both drivers testified that they were traveling at speeds of about 15-20 miles per hour immediately before the accident.

Both vehicles sustained a moderate amount of property damage. The left front fender of defendant’s vehicle collided with the driver’s door of plaintiff’s vehicle. Mrs. Dunbar and her son Kirk, a passenger at the time of the accident, were not injured. Plaintiff did not experience any immediate injuries, but began a week later to experience severe back pain while bending over to get out of bed. His back condition grew progressively worse, ultimately resulting in surgery for disc removal. Subsequent to the first surgery, plaintiff was involved in another automobile accident. A second back surgery followed.

Plaintiff filed suit against Jane Dunbar, her husband, and their automobile liability insurer. Insurance coverage was not an issue at trial. George Dunbar was joined as a party defendant, because at the time of the accident, Mrs. Dunbar was taking Kirk to summer school, this being a community mission. The defendants filed a reconven-tional demand for damage to the Dunbar vehicle. The defendants also answered plaintiff’s demands with a general denial and urged the affirmative defense of contributory negligence as a bar to plaintiff’s recovery.

TRIAL COURT

The trial court found that the plaintiff failed to prove his case by a preponderance of the evidence, finding as fact that plaintiff was driving left of the center of the road when the accident occurred. Thus, the court held, the contributory negligence of plaintiff was as much a cause of the accident as was anything, and the court accordingly denied recovery. The trial court further expressed doubt as to whether plaintiff’s injuries and symptoms were a result of the accident, in light of the fact that a week passed before plaintiff experienced any pain at all.

SPECIFICATIONS OF ERROR

Plaintiff-appellant, Joseph Corona, Jr., generally assigns as error the holdings of the trial court that he failed to prove his case by a preponderance of the evidence and that he was contributorily negligent.

MRS. DUNBAR

Testimony at trial conflicted partially as to where the Dunbar vehicle came to rest, which fact has a bearing on where the point of impact occurred. The force of the impact drove the left front fender of the Dunbar vehicle backward, causing the body of the car to jam against the left front tire. For this reason, it was undisputed that the Dunbar vehicle came to an immediate stop after impact; thus, the final resting place of the Dunbar vehicle largely determines the point of impact.

At trial, the investigating deputy sheriff drew a mark on an aerial photograph to locate the final resting place of the Dunbar vehicle. This mark would seem to put the Dunbar vehicle well into the lane of traffic traveled by the plaintiff. However, three persons (Kirk Dunbar, Chester J. Wynn, and Howard Atkins) who were at the scene of the accident prior to the deputy sheriff testified that the Dunbar vehicle came to rest with its right wheels completely off the right side of the road and a foot or more onto the shoulder. One such witness was Kirk Dunbar, who as the only eyewitness testified that at no time did his mother’s vehicle leave the right lane of travel. The trial court apparently lent credence to the testimony of the three witnesses that Mrs. Dunbar’s vehicle came to rest on the right side of the road. In light of the undisputed fact that Mrs. Dunbar’s ve-hiele came to an immediate stop after impact, the trial court apparently came to the conclusion that Mrs. Dunbar’s vehicle was right of the center of the road when the impact occurred, despite the final resting position labeled by the deputy on the aerial photograph. After viewing the record in its entirety, we cannot say that this finding of fact is either manifestly erroneous or clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973).

Plaintiff-appellant argues that the actions of Mrs. Dunbar in attempting to execute a right turn from Nunez Road onto Legendre Drive were violative of La.R.S. 32:121 and thus constituted negligence per se. La.R.S. 32:121 reads:

“A. When two vehicles approach or enter an intersection from different highways at approximately the same time, the driver of the vehicle on the left, shall yield the right of way to the vehicle on the right.
“B. The right of way rule declared in Subsection A is modified at through highways and otherwise as hereinafter stated in this part.”

The intersection in question was not controlled by traffic lights or signs. Neither Nunez Road or Legendre Drive can be considered through highways; they are streets of equal dignity. Both “T” and “Y” intersections are covered by La.R.S. 32:121. Carney v. State Farm Mutual Auto. Insur. Co., 335 So.2d 759 (La.App. 3rd Cir. 1976) app. den. 339 So.2d 20 (La.1976); Smith v. Trinity Universal Insurance Company, 270 So.2d 637 (La.App. 2nd Cir. 1972). Inasmuch as the two vehicles entered the intersection at approximately the same time, plaintiff, as the driver on the right, had the directional right-of-way under La.R.S. 32:121.

However, the fact that one driver may have had a directional right-of-way does not mechanically vest liability with the other driver; a determination of fault must be made by examining the conduct of both motorists under all the facts and circumstances. Zemo v. Louviere, 349 So.2d 420 (La.App. 4th Cir. 1977), writ ref. 351 So.2d 161 (La.1977); Gutelius v. Phoenix Insurance Company, 266 So.2d 717 (La.App. 4th Cir. 1972), writ ref. 263 La. 235, 267 So.2d 727 (1972). Plaintiff, on the right, attempted a left turn; defendant, on the left, attempted a right turn. The curve was only moderately severe and neither party was traveling at an excessive rate of speed. Under these circumstances both parties would ordinarily execute their respective turns without ever having to cross each other’s path. For this reason, the existence of a directional right-of-way in favor of plaintiff does not create fault on the part of Mrs. Dunbar. Even assuming a technical violation of La.R.S. 32:121, the circumstances clearly indicate that same was not a cause in fact of the accident, inasmuch as the Dunbar vehicle was never in a position to block or obstruct plaintiff’s directional right-of-way.

CONTRIBUTORY NEGLIGENCE

The trial court found that the actual cause of the accident was plaintiff’s failure to keep his car on the right side of the road as he executed his left turn. A review of the record bears out this finding.

Kirk Dunbar testified that as his mother’s vehicle rounded the curve, he saw plaintiff’s vehicle skidding at a perpendicular angle and blocking both sides of the roadway. Howard Atkins testified that tire skid marks ran for some distance along Legendre Drive and gouge marks ran through the patch of gravel in the center of the intersection in the direction of the final resting place of the plaintiff’s vehicle. Atkins testified that these skid marks were well to the left of the center of the road. The investigating deputy maintained steadfastly at trial that his investigation revealed that plaintiff was driving left of center prior to and during his left turn onto Nunez Road, and his accident report reflects same. Finally, plaintiff admitted on cross-examination that he may have been about a foot left of center when the accident occurred (although he claims there was plenty of room for the Dunbar vehicle to go by him.) Additionally, the aerial photographs reveal that plaintiff had to travel a moderately severe left-to-right curve on Legendre Drive immediately before attempting to execute the left turn onto Nunez Road. This fact makes it extremely plausible that the plaintiff was not able to maneuver his ear to the right of center prior to entering the intersection and turning left.

The finding of the trial court as to plaintiff’s contributory negligence is well supported by the record, and is neither manifestly erroneous nor clearly wrong. Arceneaux and Canter, supra.

DECREE

Therefore, for the above and foregoing reasons, the judgment of the trial court is affirmed. All costs are assessed to plaintiff-appellant.

AFFIRMED.

      . The reconventional demand was not mentioned in the judgment or written reasons therefor, nor have either of the parties briefed or argued the issue on appeal.

      . A “through highway” is defined by LSA-R.S. 32:1(80) as “every highway or portion thereof on which vehicular traffic is given preferential right of way, and at the entrances to which vehicular traffic from intersecting highways is required by law to yield the right of way to vehicles on such through highway in obedience to either a stop sign or a yield sign, when such signs are erected as provided in this Chapter.” This provision has been construed to mean that a highway does not become a “through highway” unless so designated by stop or yield signs erected in accordance with a statute or ordinance adopted by the appropriate authority. Neal v. Davenport, 270 So.2d 617 (La.App. 2nd Cir. 1972).


author: PONDER, Judge.

text:
    Jerome S. GLAZER v. COMMISSION ON ETHICS FOR PUBLIC EMPLOYEES.
    No. 14964.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.
    Writ Granted Oct. 1,1982.

      Phillip A. Wittmann, Charles L. Stern, Jr., Stone, Pigman, Walther, Wittmann & Hutchinson, New Orleans, Harvey H. Pos-ner, Watson, Blanche, Wilson & Posner, Baton Rouge, for appellant.
    R. Gray Sexton, Commission on Ethics for Public Employees, Baton Rouge, for ap-pellee.
    Before ELLIS, PONDER and SAVOIE, JJ.
   PONDER, Judge.

Plaintiff appealed from a decision of the Commission on Ethics for Public Employees finding him in violation of La.R.S. 42:llllC(2)(d) and 42:1112B(5) and ordering his resignation from the Mineral Board.

The Commission after finding plaintiff in violation of the two statutes, ordered him to resign within thirty days, barred him from future service on the Mineral Board for four years and notified state mineral lessees that had done business with Glazer Steel that payments made for services rendered would constitute a violation of La.R.S. 42:1117.

The issues on appeal are: 1) the constitutionality of 42:llllC(2)(d) and 42:1112B(5); 2) whether plaintiff has personally participated in transactions in violation of La.R.S. 42:1112B(5); and 3) whether those provisions permit dealings between state mineral lessees and corporations in which a Mineral Board member has an interest.

We reverse.

Glazer Steel Corporation, the stock of which is owned entirely by plaintiff, is a metal service center which sells material to petroleum companies for the maintenance of their facilities.

The parties stipulated that of 268 companies holding mineral leases with the State of Louisiana and paying royalties, Glazer Steel Corporation did business with seven from April 1,1980 to March 31, 1981, in the amount of $458,639.85. The total sales to all customers by Glazer Steel Corporation during that period was $40,376,951.00.

Plaintiff first argues that La.R.S. 42:llllC(2)(d) and 1112B(5) are penal in nature and are subject to constitutional proscriptions against vagueness and over-breadth. He contends that the loss of his position with the Mineral Board will impinge on a protected liberty interest and is intended to punish rather than remedy.

The removal of plaintiff from his appointed position and the bar to future eligibility could infringe on plaintiffs liberty interests. See Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

A statute which either forbids conduct or requires the doing of an act and therefore acts as a guide to future conduct is void for vagueness if men of common intelligence must guess at its meanings. Connick v. Lucky Pierre’s, 331 So.2d 431 (La.1976).

Plaintiff contends that the terms “services” and “thing of economic value” in Section llllC(2)(d) and the latter in Section 1112B(5) are unconstitutionally vague.

Both phrases are defined by the Code. La.R.S. 42:1102(24) and 42:1102(22). The provisions when read as a whole, adequately provide a person of fair intelligence with fair notice of what conduct is prohibited.

Plaintiff argues that the phrase “interests which may be substantially affected by”, in La.R.S. 42:1115B(2) is also unconstitutionally vague. He argues that modifiers are needed to specify the type of interest that is prohibited and cites State v. Murtes, 232 La. 486, 94 So.2d 446 (1957). However, the prohibited conduct in Section 1115B(2) is not the general interest that the public servant has, as in Murtes, but has a much more specific meaning.

“In a position to affect directly”, found in Section 1112B(5) is also constitutionally adequate. When the provision is read as a whole, with the terms defined, it gives adequate notice.

Plaintiffs next argument is that Section 1112B(5) denies him equal protection. Part C of that section mandates that all public employees, except appointed board members, disqualify themselves from participation in any matter where La.R.S. 42:1111 et seq. would be violated. La.R.S. 42:1112C.

Equal protection requirements are fulfilled if there is a rational basis for using the classification method so as to attain a legitimate state interest. City of New Orleans v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976); Succession of Thompson, 367 So.2d 796 (La.1979); McElveen v. State, Municipal Police Employees Retirement System, 399 So.2d 664 (1st Cir. 1981).

Because appointed members of boards are generally charged with formulating policy and participating in fundamental decision-making proceedings, there is a rational relationship to the state interest of avoiding conflicts of interest without creating unnecessary barriers to public service, as provided in the Code. La.R.S. 1101B. There is a legitimate reason for making a distinction. We find no constitutional infirmity.

Plaintiff next argues that neither Section llllC(2)(d) nor Section 1112B(5) prohibits arm’s length transactions. He contends that without evidence that he and his company have received special consideration from these companies because of his position on the Mineral Board or have ever sought special treatment, the transactions are not within the purview of the sections.

The Code of Governmental Ethics, in an attempt to protect against conflicts of interest between the private interests of a public servant and his public duties, has set up ethical standards of conduct. La.R.S. 42:1101B. These standards do not require that there be actual corruption on the part of the public servant or actual loss by the state. The statute establishes an objective rather than subjective standard of conduct, and actions prohibited by that standard are sufficient to violate the statute. See United States v. Mississippi Valley Generating Co., 364 U.S. 520, 81 S.Ct. 294, 5 L.Ed.2d 268 (1961). Plaintiff’s argument is without merit.

Plaintiff’s argument that there is insufficient evidence to support any possible violation of Section 1112B(5), since he has not participated in the action of a governmental entity involving any lessee that has done business with Glazer Steel, is without merit. There is no evidence of specific transactions by the Mineral Board involving these lessees since the adoption of the Code, but the duties of the Mineral Board include the checking of royalty payments to determine if they are correct and timely. La. R.S. 30:136(A). Plaintiff has participated in the “action of a governmental entity”. La.R.S. 42:1102(1). In Re Buquet, La.App., 184 So.2d 288 (1st Cir.) writ denied 249 La. 198, 186 So.2d 159 (1966), is distinguishable because the definition of “participate” has been expanded since that decision.

Plaintiff argues that neither section prohibits business dealings between state mineral lessees and legal entities in which a mineral board member has a controlling interest. Both Section llllC(2)(d) and Section 1112B(5) are applicable to “public servants.” Sections 1111E(1), 1112B(2), 1112B(3), 1113A, 1113B, 1113C, and 1121C, on the other hand, refer specifically to public servants and legal entities of which the public servant is an officer, director, trustee, partner or employee or in which the public servant has a substantial economic interest.

Rather than showing in Sections 1111E(1), 1112B(2) and (3), 1113A, B, and C, and 1114B an equation of public servants with their corporations, as contended by defendant, we believe, the legislature has carefully enumerated specific instances in which a public servant’s interest in a corporation or legal entity will impinge on his public duties. Those include receiving something of economic value for assisting a person in a transaction or appearance before the public servant’s agency, participating in transactions involving the governmental entity and in which the corporation or legal entity has a substantial economic interest, and being interested in any way in a contract or other transaction which is under the supervision or jurisdiction of the agency of the appointed member.

We believe this issue to be one of legislative intent. Where provisions of the law are clear and unambiguous, courts will not deviate from the terms on the pretext of pursuing the spirit of the law. In Re Buquet, supra.

Defendant alleges that the above interpretation would foster ludicrous results in that a board member who is prevented from rendering services or selling goods to his board or commission could circumvent the code by forming a corporation. There is no suggestion that the instant corporation was formed for that purpose. In any event, the problem is more appropriately directed to the Legislature.

Defendant cites David Moore Development Company v. Higgins Industries, Inc., La.App., 163 So.2d 139 (4th Cir.), writ denied 246 La. 580, 165 So.2d 481 (1964), for the proposition that corporations cannot be used as a shield to hide one’s true interest in a transaction. In that case a shell corporation that had the same offices and officers as another was being used to avoid liability. We do not find it controlling.

This conclusion is further reinforced by the fact that the Legislature intended to include as members of the Mineral Board those who were engaged in the industry and related, business activity so long as the Code of Governmental Ethics was complied with. La.R.S. 30:121D. Had it intended to exclude those in plaintiff’s situation, it could easily have been more explicit.

For these reasons the decision of the Commission on Ethics for Public Employees is reversed and plaintiff is hereby reinstated on the Mineral Board. Costs are assessed to the defendant.

REVERSED.

      . La.R.S. llllC(2)(d) and 42:1112B(5):
      “C. Payments for nonpublic service.
      (2) No public servant shall receive any thing of economic value for or in consideration of services rendered, or to be rendered, to or for any person during his public service unless such services are:

      (d) Neither performed for nor compensated by any person from whom such public servant would be prohibited by R.S. 42:1115 from receiving a gift.”
      “B. No public servant, except as provided in R.S. 42:1120, shall participate in a transaction involving the governmental entity in which, to his actual knowledge, any of the following persons has a substantial economic interest:

      (5) Any person who is a party to an existing contract with such public servant or who owes any thing of economic value to such public servant and who by reason thereof is in a position to affect directly the economic interests of such public servant.”

      . La.R.S. 42:1117:
      “No public servant or other person shall give, pay, loan, transfer, or deliver or offer to give, pay, loan, transfer, or deliver, directly or indirectly, to any public servant or other person any thing of economic value which such public servant or other person would be prohibited from receiving by any provision of this Part.”

      . The penalties that may be administered by the commission are as follows:
      “§ 1153. Penalties
      B. Upon finding that any public employee or other person has violated any provision of this Chapter, the commission by a majority vote of the membership, may remove, suspend, or order a reduction in pay, or demotion of the public employee or other person, or impose a fine of not more than five thousand dollars, or both.”

      . La.R.S. 42:1102(22) and 42:1102(24):
      “Unless the context clearly indicates otherwise, the following words and terms, when used in this Chapter, shall have the following meanings:
      * * * * * *
      (22) ‘Thing of economic value’ means money or any other thing having economic value, except food, drink, or refreshments consumed by a public servant, including reasonable transportation and entertainment incident thereto, while the personal guest of some person, and includes but is not limited to:
      (a)Any loan, except a bona fide loan made by a duly licensed lending institution at the normal rate of interest, any property interest, interest in a contract, merchandise, service, and any employment or other arrangement involving a right to compensation.
      (b) Any option to obtain a thing of economic value, irrespective of the conditions to the exercise of such option.
      (c) Any promise or undertaking for the present or future delivery or procurement of a thing of economic value.
      In the case of an option, promise, or undertaking, the time of receipt of the thing of economic value shall be deemed to be, respectively, the time the right to the option becomes fixed, regardless of the conditions to its exercise, and the time when the promise or undertaking is made, regardless of the conditions to its performance.
      Things of economic value shall not include salary and related benefits of the public employee due to his public employment or salary and other emoluments of the office held by the elected official.”

      “(24) ‘Service’ means the performance of work, duties, or responsibilities, or the leasing, rental, or sale of movable or immovable property.”

      . La.R.S. 42:1112C:
      “C. Every public employee, excluding an appointed member of any board or commission, shall disqualify himself from participating in a transaction involving the governmental entity when a violation of this Part would result. The procedures for such disqualification shall be established by regulations issued pursuant to R.S. 42:1134(1).”

      . La.R.S. 42:1101B:
      “B. It is essential to the proper operation of democratic government that elected officials and public employees be independent and impartial; that governmental decisions and policy be made in the proper channel of the governmental structure; that public office and employment not be used for private gain other than the remuneration provided by law; and that there be public confidence in the integrity of government. The attainment of one or more of these ends is impaired when a conflict exists between the private interests of an elected official or a public employee and his duties as such. The public interest, therefore, requires that the law protect against such conflicts of interest and that it establish appropriate ethical standards with respect to the conduct of elected officials and public employees without creating unnecessary barriers to public service. It is the purpose of this Chapter to implement these policies and objectives.”

      . La.R.S. 42:1102(1):
      “Unless the context clearly indicates otherwise, the following words and terms, when used in this Chapter, shall have the following meanings:
      (1)‘Action of a governmental entity’ means any action on the part of a governmental entity or agency thereof including, but not limited to:
      (a) Any decision, determination, finding, ruling, or order, including the judgment or verdict of a court or a quasi-judicial board, in which the governmental entity or any of its agencies has an interest, except in such matters involving criminal prosecutions.
      (b) Any grant, payment, award, license, contract, transaction, decision, sanction, or approval, or the denial thereof, or the failure to act with respect thereto; and in which the governmental entity or any of its agencies has an interest except in matters involving criminal prosecutions.
      (c) As the term relates to a public servant of the state, any disposition of any matter by the legislature or any committee thereof; and as the term relates to a public servant of a political subdivision, any disposition of any matter by the governing authority or any committee thereof.”

      . La.R.S. 42:1111E(1):
      “E. Payments for rendering assistance to certain persons.
      (1) No public servant, and no legal entity of which such public servant is an officer, director, trustee, partner, or employee, or in which such public servant has a substantial economic interest, shall receive or agree to receive any thing of economic value for assisting a person in a transaction, or in an appearance in connection with a transaction, with the agency of such public servant.”
      La.R.S. 42:1112B(2) and (3):
      “B. No public servant, except as provided in R.S. 42:1120, shall participate in a transaction involving the governmental entity in which, to his actual knowledge, any of the following persons has a substantial economic interest:
      :H s{s * ífc sfs sf;
      (2) Any person in which he has a substantial economic interest of which he may reasonably be expected to know.
      (3) Any person of which he is an officer, director, trustee, partner, or employee.
      * * * * * * »»
      La.R.S. 42:1113A, B and C:
      “A. No public servant, excluding any legislator and any appointed member of any board or commission, member of such public servant’s immediate family, or legal entity in which he has a controlling interest shall bid on or enter into any contract, subcontract, or other transaction which is under the supervision or jurisdiction of the agency of such public servant.
      B. Other than a legislator, no appointed member of any board or commission, member of his immediate family, or legal entity in which he has an economic interest shall bid on or enter into or be in any way interested in any contract, subcontract, or other transaction which is under the supervision or jurisdiction of the agency of such appointed member.
      C. No legislator, member of his immediate family, or legal entity in which he has a controlling interest shall bid or or enter into or be in any way interested in any contract, subcontract, or other transaction involving the legislator’s agency.”
      La.R.S. 42:1121C:
      “C. No legal entity in which a former public servant is an officer, director, trustee, partner, or employee shall, for a period of two years following the termination of his public service, assist another person, for compensation, in a transaction, or in an appearance in connection with a transaction in which such public servant at any time participated during his public service and involving the agency by which he was formerly employed or in which he formerly held office.”

      . La.R.S. 30:121D:
      “D. The board shall administer the state’s proprietary interest in minerals as herein provided. The governor may appoint to the board members engaged in the industry and related business activity which members and which board shall be subject to the provisions of R.S. 42:1101 through R.S. 42:1168.”


text:
    Michael HEMPHILL and Bogalusa Professional Firefighters Association, Local No. IAFF 687, et al. v. The CITY OF BOGALUSA, Louisiana.
    No. 14968.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.

      Dale E. Branch, Bogalusa, for plaintiffs.
    John N. Gallaspy, Bogalusa, for defendant-appellant.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   SHORTESS, Judge.

The Bogalusa Firefighters Association, Local 687 (plaintiffs-appellees) filed suit against the City of Bogalusa (defendant-appellant) seeking to have their state supplement pay included within the computation of certain pay differentials. They further sought enforcement of an addendum to their labor contract, which provided that if any City employee received a raise, the firemen would also receive same.

The trial judge found in favor of plaintiffs on the pay differential issue, but held that the addendum had never become legally effective, because it had not been ratified by the City Council, as required by the Bogalusa City Charter. From this judgment, the City appeals, alleging the trial judge was incorrect in concluding that the State supplement was part of a fireman’s salary and also in holding that the differential percentages should be applied to the minimum actually paid the highest ranked firefighter. Plaintiffs answered the appeal maintaining that the trial court erred in not enforcing the addendum to their contract. ISSUE ONE

The first issue is whether the State supplemental pay should be considered part of the “salary” of a fireman and be used in computing the pay differentials outlined for the different ranks in the Firefighters Association.

The City and the firemen entered into a labor contract on August 21, 1978, which requires that pay differentials be maintained among the different ranks of firemen; namely, firefighters, drivers, captains, and assistant chiefs. The contract basically tracks the provisions set forth in La.R.S. 33:1992 , and indicates that the percentage differentials listed in the contract were to be kept in accord with those in the statute. La.R.S. 33:1992, entitled, “Minimum salaries,” provides in pertinent part:

The minimum monthly salaries of firemen in municipalities having a population of twelve thousand or more and of all parish and fire protection district paid firemen, ... shall be paid in accordance with the following schedule, . . .:
(1) A fireman shall receive a minimum monthly salary of four hundred dollars per month.
(2) Engineers shall receive a minimum monthly salary of not less than ten percent above that of a fireman.
(3) Lieutenants shall receive a minimum monthly salary of not less than fifteen percent above that of a fireman.
(4) Captains shall receive a minimum monthly salary of not less than twenty-five percent above that of a fireman.
(5) Battalion chiefs and district chiefs shall receive a minimum monthly salary of not less than forty percent above that of a fireman.
(6) Assistant chiefs and deputy chiefs shall receive a minimum monthly salary of not less than fifty percent above that of a fireman.

The statute further provides for differentials among various other ranks and then states:

From and after the first day of August, 1962, each member of the fire department who has had three years continuous service shall receive an increase in salary of two percent and shall thereafter receive an increase of two percent for each year of additional service up to and including twenty years. Both the base pay and accrued longevity shall be used in computing such longevity pay.

The basis of the State supplemental pay is found in La.R.S. 33:2002:

In addition to compensation now paid by any municipality, parish, or fire protection district maintaining a fire department to any employee of such department (the employee) ... shall be paid extra compensation by the State ....

and La.R.S. 33:2004(D) states:

The additional compensation paid by the state to municipal or parish fire department employees as provided by this Sub-Part shall be included in the calculation and computation of the total wages paid to the employee in the determination of employer contributions to any retirement system or pension fund of which such employee may be a member as well as in the determination of retirement eligibility and benefits which may accrue to the employee under any retirement system or pension fund, as well as in the determination of any other employee benefits, sick leave, or disability pay to which the employee might be entitled.

We agree with the trial judge that this statutory language “clearly indicates that the State supplement is to be considered a part of the total salary,” of a fireman.

Mrs. Carolyn Miller, the payroll computer operator for the City, testified that the State supplement checks are sent to the various departments of City employees and then disbursed to the firemen. She stated that the City withholds pension and withholding tax from the State supplement; that the supplement is used in computing retirement benefits, income tax benefits, and overtime pay; and that the supplement is used determining the 2% annual raise, provided in R.S. 38:1992.

In Hebbler v. New Orleans Fire Department, 310 So.2d 113 (La.1975), the Supreme Court held that the State supplemental pay was part of the salary due to a fireman who was reinstated after an illegal discharge.

We find that the State supplemental pay is part of a fireman’s salary for purposes of determining pay differentials.

A secondary question concerns how the differential percentages are to be applied. The City argues that the differentials should be applied to the $400.00 per month minimum salary, provided in La.R.S. 33:1992. Its language has not been changed since its effective date in 1969. In most cases, it no longer represents the minimum salary actually paid a fireman.

The trial judge stated:

Even though the percentage differentials are for minimum salaries, the differentials are applicable from the minimum actually paid firemen by the municipality where that minimum exceeds the $400.00 minimum established by the statute. The statute clearly intends to establish percentage differentials between the minimum wages of different classes of firefighters. If the percentage differential were applied only to the $400.00 figure of R.S. 33:1992(1), which has not been amended since 1969, clearly in every fire department in the state the differential would be eliminated by the increase of the minimum salary paid firemen.

The minimum salary actually paid is the correct base. We find this conclusion in accord with the intent of the statute, and support the trial judge’s determination.

The contract provides for the minimum salary of firefighters in seven different classifications, the highest being a firefighter with three years’ service. The rank ahead of a firefighter with three years’ service is driver. In an effort to keep the contract in line with the percentages outlined in La.R.S. 33:1992, the contract states:

If the span between ranks develops in such a manner to be out of line with the percentages set forth in the Fire and Police Civil Service Law, the salaries which are out of line will be adjusted upward to bring them in line: (a) Fire Driver: 15% above the highest Firefighter; (b) Fire Captain: 25% above the highest Firefighter; and (c) Assistant Chief: 50% above the highest Firefighter. (Emphasis ours.)

The trial judge interpreted the language, “highest Firefighter,” as an attempt in the contract to provide differentials between the highest ranked firefighter (firefighter No. 7) and the next rank, driver. This construction is consistent with the intent to keep the percentages in line with La.R.S. 33:1992. The result is a pay differential between the three-year firefighter and the fire driver of 15%, as the statute and the contract provide. Without this interpretation, a three-year firefighter might have a salary closely equivalent or exceeding that of a driver. This obviously was not the intent of the statute or the contract.

We agree with the trial judge that the State supplement is part of the “salary” of a fireman, and further, that the differentials are to be applied to the minimum salary actually paid to the highest ranked firefighter.

ISSUE TWO

The second issue is the legal effect of the addendum to the labor contract between the City and firefighters. The addendum was signed by Michael Hemphill, President of the Local, and by the Mayor of Bogalusa, on July 31, 1979. It provides in pertinent part:

The parties to the above agreement hereby agree to amend the terms of said agreement to provide the following: ARTICLE XXVI — PAY EQUALIZATION:
If the Employer were to grant a pay raise to any other City employee, said pay raise will be granted to members of Bogalusa Firefighters Local 687.

The trial judge, in his well-reasoned opinion, decided that the addendum had not become legally effective, because it was never ratified by ordinance of the City Council, as required under the Bogalusa City Charter. We have reviewed the evidence on this issue, and find that the trial judge was correct in his analysis. Accordingly, we adopt his written reasons on this issue:

“PAY EQUALIZATION

All parties apparently agree that although the contract between the City and Firemen was to expire in July of 1979, the financial condition of the City was such that the Locals were in agreement that the present contracts would be extended. It is the contention of the Firemen’s Local that the Pay Equalization provision was their consideration for not re-opening bargaining, and continuing to operate under the 1978 contract. In fact, it is the contention of the Firemen, although denied by the Mayor, that notice of termination of the 1978 contract was actually given and acknowledged before the addendum was agreed upon. In any event the testimony is uniform that the addendum was not discussed with the City Council, and the record reflects that no ordinance was ever adopted by the council authorizing or ratifying the addendum. The threshold question, therefore, is whether the addendum was ever legally effective.
The City of Bogalusa operates under a Mayor-Council form of Government which became effective on December 4, 1978. Section 7-05 of the City Charter is decisive of the issue presented. That section provides as follows:
‘Section 7-05. Employee Representation
A. The right of the City employees to be represented by union organizations for the purpose of collective bargaining with refereence (sic) to compensation or working conditions is hereby recognized.
B. Any negotiations by the City with any such employee union representative shall be by the mayor or his desig-nee. Final approval of any labor contracts with municipal employees shall rest with the council and shall be by ordinance.’
The addendum executed July 31, 1979 by the Mayor and the President of Local No. 687 is an amendment to an existing labor contract. It purports to make a substantial change in the original contract, granting firefighters a raise if any city employee is raised, where the original contract provided a firefighter’s raise only if a departmental raise was given another city department. It therefore falls within the purview of Section 7— 05(b)., and has never become operative because it has not been approved by the Council by ordinance.”

ISSUE THREE

Our decision awards back pay to plaintiffs. The law regarding the firemen’s receipt of back pay is set forth in DeVillier v. City of Opelousas, 247 So.2d 412 (La.App. 3d Cir. 1971). Plaintiffs’ suit was filed on July 18, 1980. They are entitled to back pay on the differential issue for one year prior to the date their suit was filed.

For all the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to the defendant.

AFFIRMED.

APPENDIX

The following is that section of the contract between the City and the firefighters which is pertinent to the pay differential issue:

“EXHIBIT B
It is agreed between the employer and the union that eligible employees shall be classified into pay grades as shown on the following schedule, and shall receive not less that the pay indicated thereon. The annual pay increases shown hereon are inclusive of the 2% per annum increase required by law (R.S. 33:1992).
MONTHLY RATE
Effective Effective Effective
Rank 8-1-77 2-1-78 6-1-78
Firefighter (1) $619.76 $629.76 $619.76
(2) 627.58 637.58 627.58
(3) 660.44 670.44 660.44
(4) 668.20 678.20 668.20
(5) 676.40 686.40 676.40
(6) 683.94 693.94 683.94
(7) 699.82 709.82 699.82
(1) Beginning Rate
(2) Six (6) months’ service.
(3) One (1) year service
(4) Eighteen (18) months’ service
(5) Two (2) years’ service
(6) Thirty (30) months’ service
(7) Three (3) years’ service
Fire Driver $ 805.84 $ 816.29 $ 805.84
Fire Captain 874.78 887.28 874.78
Assistant Chief 1049.73 1064.73 1049.73

Note - The Union reserves the right to negotiate Exhibit B for the period August 1, 1978 through July 81, 1979.”

If the differentials were applied to the beginning firefighter’s minimum salary, as of June 1,1978, a driver would only make a minimum salary of $717.72:

$619.76 $619.76
15% + 92.96
$92.96 $712.72

Since the firefighter ranked No. 7 is making a minimum salary of $699.82, the result would be that there would be little significant difference (only $12.90) between a firefighter and a driver.

$712.72
-699.82
$ 12.90

This does not take into account the 2% annual raise provided for in La.R.S. 13:1992, which often times would result in the firefighter making a higher salary than a driver.

When the differential is applied to the minimum salary of the highest ranked firefighter (No. 7), the intent of the statute to provide for a 15% differential and the intent of the contract to do same, is accomplished.

$699.82 $699.82
15% +104.97
$104.97 $804.79

      . The rank of driver in the Bogalusa system is the equivalent of the rank of lieutenant as listed in La.R.S. 33:1992.

      . See appendix.

       The appropriate longevity will be added to this rate.
      If the span between ranks develop in such a manner to be out of line with the percentages set forth in the Fire and Police Civil Service Law, the salaries which are out of line will be adjusted upward to bring them in line, (a) Fire Driver: 15% above the highest Firefighter; (b) Fire Captain: 25% above the highest Firefighter; and (c) Assistant Chief: 50% above the highest Firefighter.


author: CARTER, Judge:

text:
    Alex JOHNSON, Jr. v. LOUISIANA STATE UNIVERSITY, et al.
    No. 14971.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.

      Joseph A. Gladney & Associates, Baton Rouge, for plaintiff-appellant Alex Johnson, Jr.
    Peter Dazzio, Baton Rouge, for defendants-appellees Louisiana State University and Niagara Fire Ins. Co.
    Paul Marks, Jr., Baton Rouge, for third party defendant-appellant Montgomery Elevator Co.
    Robert J. Vandaworker, Baton Rouge, for third party defendant-appellant Otis Elevator Co.
    Before LEAR, CARTER and LANIER, JJ.
   CARTER, Judge:

This workmen’s compensation case is before us on appeal from a judgment of dismissal holding that appellant Alex Johnson, Jr. failed to prove a compensable accident in the course of his employment as a janitor at Louisiana State University.

Appellant Johnson instituted suit against Louisiana State University and its workmen’s compensation insurer, Niagara Fire Insurance Company of Dallas, Texas, seeking benefits for total and permanent disability, statutory penalties and attorney fees. Louisiana State University and Niagara Fire Insurance Company filed an answer of general denial and additionally filed a third party demand making Montgomery Elevator Company a defendant, alleging that in the event any judgment should be rendered against them they were entitled to judgment over and against Montgomery Elevator Company as the manufacturer, installer, and/or party maintaining said elevator. Subsequent to the answer and third party demand, an amended third party demand was filed by Niagara making Otis Elevator Company a defendant as the designer, manufacturer and installer of the elevator in question. The amended third party demand also alleged that both Otis Elevator Company and Montgomery Elevator Company (the party obliged to service and maintain the elevator in question) should be held liable in solido for indemnity in the amount of any judgment rendered against Niagara in the main demand. After trial on the merits and pursuant to oral reasons, the trial judge rendered judgment in favor of defendant-appellees LSU and Niagara dismissing plaintiff’s suit at his costs. Judgment was further rendered in favor of all third party defendants. From this judgment, both Alex Johnson, Jr. and Montgomery Elevator Company have perfected appeals and Otis Elevator Company answered the appeal.

The basic issue presented on this appeal is whether or not appellant Johnson proved the occurrence of an accident in the course of his employment.

Appellant Johnson contends that on May 16, 1977, while in the employ of LSU engaged in doing janitorial work in Johnston Hall on the LSU campus, that he was injured in an elevator that went out of control, went below the basement floor and slammed into the foundation and/or came to an abrupt stop after jerking actions. He alleges that as a result of the jerking actions and the severe slam of the elevator coming to an abrupt stop, he was thrown about inside and received injuries to his back which rendered him totally and permanently disabled. It is not contested that appellant Johnson was engaged in a hazardous occupation and that if an accident and injury occurred, it occurred during the course and scope of his employment.

Appellant Johnson was employed at LSU sometime in February of 1977 as a janitorial worker whose primary responsibility was the maintenance of the third floor of Johnston Hall. He contends that the accident and injuries resulting therefrom occurred about 10:00 or 10:30 o’clock on the morning of May 15, 1977. Appellant Johnson contends that while using the elevator it slammed to a jerking abrupt stop and that he was thrown to the floor, the doors opened and he' crawled out. He testified that he did not mention anything about this occurrence to the first co-employee that he met (Russell Burkett), but he did tell another co-employee Ishmael Birch. At 12:30 o’clock during roll call, he testified that he reported the accident to his supervisor, Mr. Sam Taylor, and that as a result of the accident he has not been able to do any work since.

It developed during the course of the trial and as a result of expert testimony taken by deposition that appellant Johnson had previously had difficulties with his back and had undergone two prior laminectomies, one in 1971 and another in 1973. He had previously settled one workmen’s compensation claim and the weight of the medical testimony was to the effect that he did have residual disability from the prior injuries. However, on his application to gain employment at LSU, he certified that he was suffering from no disease or disability. Appellant Johnson contends that after the 1973 laminectomy, he only did odd jobs until his employment with LSU in February of 1977.

Sam Taylor, appellant Johnson’s supervisor and an employee of LSU for approximately 41 years, contradicted the testimony of appellant Johnson in most particulars. Mr. Taylor testified that appellant Johnson had told him he hurt his back cutting grass for a doctor and that Johnson told him “the elevator fell” but he was not hurt. He testified that he asked appellant Johnson if he wanted to go to the infirmary or to a doctor, and he was informed by appellant Johnson that he was not hurt and did not wish to go to the infirmary or to a doctor. Mr. Taylor further testified that appellant Johnson proceeded with his daily work and, after discussing the matter with him, sat down behind the counter and started laughing and talking “like he normally do”. Later on in the day, Mr. Taylor testified that he checked on appellant Johnson on the third floor of Johnston Hall and he was “cleaning his bathroom”.

Mr. Taylor said he immediately checked the elevator and found nothing wrong with it. He rode it “up and down, up and down” stopping the elevator on each floor, and found absolutely no malfunction. His testimony was corroborated by all other co-employees that testified as well as other testimony and evidence in the record. Mr. Taylor further testified that sometime after the accident, appellant Johnson came to his house on several occasions and insisted that Mr. Taylor testify that the elevator fell with him. He finally had to call the police to prevent further harassment. Later, appellant Johnson confronted Mr. Taylor on a street and threatened to shoot him if he didn’t testify that the elevator fell with him. Three other co-employees testified in the matter and all testified that appellant Johnson told them that the elevator fell with him but he did not appear injured, shaky or disturbed. All co-employees testified that he acted like he always did and that the elevator was not acting improperly at the time they used it on the day of the alleged accident.

The law is well settled that the testimony of a plaintiff alone in a workmen’s compensation case, is sufficient to establish the occurrence of an accident, if there is nothing to discredit his account thereof and where his statements are supported by the surrounding circumstances. Smith v. Louisiana Welding Supply Co., Inc., 331 So.2d 606 (La.App. 1st Cir. 1976); Cavender v. Flenniken Construction Co., 247 So.2d 652 (La.App.2d Cir. 1971); Dolhonde v. Gullett Gin Co., 25 So.2d 104 (La.App. 1st Cir. 1946).

It is further well settled that the findings of fact of a trial court will not be disturbed unless manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring, 283 So.2d 716 (La.1973).

In the trial judge’s oral reasons for judgment, he stated as follows:

“... Having heard all the testimony today and having read the deposition of Mr. Hollis Burkett who is not here but whose deposition had been taken, taking all the surrounding circumstances into account, I think those surrounding circumstances tend to negate rather than support the plaintiff’s allegation that an accident occurred on the day in question, the testimony to the effect that almost immediately after the alleged accident occurred that one of plaintiff’s co-workers called the elevator up and used it without incident. The clear and unequivocal testimony of Mr. Sam Taylor, the plaintiff’s supervisor, was to the effect that after the roll call, sometime around 1 o’clock that he checked the elevator, ran it tip and down several times, and could find absolutely nothing wrong with it. There was not one scintilla of evidence introduced that showed any need for service on the elevator for any malfunction at any time in the near vicinity of May 16, 1977. Immediately following the alleged accident, the plaintiff, although he indicated to several people that the elevator had fallen he had no objective signs of any injury whatsoever. As a matter of fact, he told his supervisor, Mr. Sam Taylor, that he was not hurt. None of the fellow-workers that testified indicated that they had ever had any difficulty with the elevator involved here before the date of the alleged accident or following the date of the alleged accident. For all of these reasons, and I might say that as far as this court is concerned, as a matter of fact, I made a notation in the notes that I was taking during the course of this trial that Samuel Taylor, employee of Louisiana State University for a period of 41 years, the notation that the court made was that ‘this man strikes me a being honest and forthright, and I believed him when he said that if LSU were wrong that he would testify against LSU but if they were right then he felt it his obligation and duty to testify and tell the truth; and I believe he told the truth. ...”

Even though the testimony of a plaintiff alone in a workmen’s compensation case is sometimes sufficient to establish the occurrence of an accident, he still must establish an accident by a preponderance of the evidence; that is by evidence which as a whole shows it to be more probable than not that an accident occurred. Landry v. Employers’ Liability Assurance Corp., Ltd., 233 So .2d 624 (La.App. 3rd Cir. 1970); Smith v. Louisiana Welding Supply Co., Inc., 331 So.2d 606 (La.App. 1st Cir. 1976).

Clearly, in the instant case, the surrounding circumstances tend to negate rather than support appellant’s allegation that an accident occurred on the day in question. We conclude that a reasonable evaluation of the evidence abundantly supports the trial court’s finding that an accident did not occur on the day in question. We cannot say that the trial court committed manifest error in rejecting appellant’s testimony, especially in view of the great weight afforded the trial court’s evaluation of the credibility of witnesses. Having reached this conclusion, it is unnecessary to consider the various other allegations of error by appellant Johnson.

We therefore affirm the ruling of the trial court dismissing appellant Johnson’s suit and all third party demands. Costs of appeal are to be paid by the plaintiff appellant.

AFFIRMED.


text:
    Claiborne J. ONCALE, Sr., et al. v. The AETNA CASUALTY AND SURETY COMPANY.
    No. 14973.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.

      David M. Richard, Thibodaux, for plaintiffs-appellants Claiborne J. Oncale, Sr., et al.
    John L. Lanier, of Pugh, Lanier & Pugh, Thibodaux, for defendant-appellee The Aet-na Cas. & Sur. Co.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   LOTTINGER, Judge.

This is a suit on an insurance contract. Plaintiffs sued the Aetna Casualty and Surety Company (“Aetna”) as the automobile insurance carrier of Claiborne J. On-cale, Jr. Plaintiffs claimed uninsured motorists coverage by Aetna for damages resulting from an auto collision with an under-insured third-party tortfeasor. From a summary judgment granted by the trial court in favor of Aetna, the plaintiffs have appealed.

FACTS

The suit arose from an auto accident occurring June 10,1979. Claiborne J. Oncale, Jr. was driving his vehicle in a westerly direction on Parish Road 27 in Lafourche Parish. Passengers in the Oncale vehicle were Claiborne J. Oncale, Sr., Mrs. Blanche Oncale, Elaina Oncale, Crystal Oncale, and Mrs. Priscilla T. Oncale. An east-bound vehicle owned and operated by Janet R. Willingham crossed the center line of the road and collided with the Oncale vehicle. All persons in the Oncale vehicle were injured in varying degrees. Plaintiffs settled a claim against Ms. Willingham and her insurer, Allstate Insurance company (“Allstate”), for the amount of the policy limits, which was $10,000.00. They now claim uninsured motorists coverage from Aetna, asserting damages over and above the amounts already received from Allstate.

TRIAL COURT

Aetna moved for a summary judgment, arguing that the policy issued to Claiborne J. Oncale, Jr. contained an express rejection of UM coverage. Aetna attached the On-cale policy to its motion, and within the policy appeared a form rejecting UM coverage and signed by Mrs. Claiborne J. Oncale, Jr., dated July 7, 1978. The trial court in its written reasons observed that La.R.S. 22:1406(D)(l)(a) authorized “any insured named in the policy” to reject UM coverage. The court found no genuine dispute as to the material facts that Mrs. Oncale, Jr. had signed the rejection form and that she was a “named insured” under the policy. Thus, the trial court found Aetna was entitled to judgment as a matter of law, and there being no genuine dispute as to material fact, granted summary judgment in favor of Aetna.

ISSUES ON APPEAL

The briefs and arguments of the parties on appeal basically raise the following issues:

1) Did Mrs. Oncale, Jr. have the actual authority to reject UM coverage on behalf of her husband?
2) Lacking actual authority, was Mrs. Oncale, Jr. vested with the apparent authority to reject UM coverage on behalf of her husband?
3) Can the spouse of the policyholder reject UM coverage on her own as a “named insured” under the policy?

ACTUAL AUTHORITY

Plaintiffs-appellants argue that the rejection of UM coverage by Mrs. Claiborne J. Oncale, Jr. was invalid because she was not given this authority by her husband.

At the time of the application for the Aetna policy, La.Civ.Code Art. 1787 was in effect, which read:

“A married woman may act as manda-tary, and her acts will bind the mandator and the person with whom she contracts, although she be not authorized by her husband; she may also act as mandatary for her husband or for the community when authorized by her husband.” (emphasis supplied)

It is undisputed that Claiborne J. Oncale, Jr. authorized his wife to obtain automobile insurance on his behalf from Aetna. The plaintiffs claim, however, that Oncale, Jr. authorized his wife to obtain “full coverage” only, and did not authorize her to reject UM coverage. In this fashion, plaintiffs seek to distinguish Soileau v. Hartford Accident & Indemnity Company, 182 So.2d 76 (La.App. 3rd Cir. 1966), where the Third Circuit found that the husband’s authority given to the wife to obtain an identical policy as the previous year’s (which did not contain UM coverage) constituted full authority in the wife as his agent to reject UM coverage in the new policy.

We agree that the situation in Soi-leau does not avail defendant in the instant case. Unlike Soileau, the present husband authorized his wife to obtain full coverage, not coverage identical to that of any previous year. Thus, Mrs. Oncale, Jr. did not have actual or implied authority as the agent of her husband to reject UM coverage. Yet, because of this holding, this court must examine two issues which were expressly pretermitted in Soileau: whether apparent authority existed, and whether a spouse as a “named insured” can reject UM coverage on her own.

APPARENT AUTHORITY

Defendant-appellee contends that even if Mrs. Oncale, Jr. had not the actual authority as the agent of her husband to reject UM coverage, that she had apparent authority to do so, and that its insurance agent was justified in relying on her express rejection of UM coverage on behalf of her husband.

As was stated in AAA Tire & Export, Inc. v. Big Chief Truck Lines, Inc., 385 So.2d 426, 429 (La.App. 1st Cir. 1980):

“The concept of apparent authority only comes into play when the agent has acted beyond his actual authority and has no permission whatsoever from his principal to act in such a manner. The principal will be bound for such actions if he has put his agent in such a position or has acted in such a manner as to give an innocent third person the reasonable belief that the agent has authority to act for the principal. The facts and circumstances of each case must be examined to determine the reasonableness of the third party’s belief. One must look from the viewpoint of the third person to determine whether an apparent agency has been created.”

See also Lilliedahl & Mitchell, Inc. v. Avoyelles Trust & Savings Bank, 352 So.2d 781 at 787 (La.App. 3rd Cir. 1977).

Although it appears that the insurance agent may well have been quite reasonable in believing that Mrs. Oncale, Jr. had the authority to reject UM coverage on behalf of her husband, the pleadings and affidavits on record do not provide the court with all the facts and circumstances necessary to determine whether this apparent authority existed. For this reason, the doctrine of apparent authority cannot be availed to uphold summary judgment in the case sub judice.

NAMED INSURED

La.R.S. 22:1406(D)(l)(a) in pertinent part allows a rejection of UM coverage by “any insured named in the policy,” provided such rejection is in writing. Thus, if Mrs. On-cale, Jr. was an “insured named in the policy,” as per the statute, she herself had the ability to reject UM coverage, not as the agent of her husband, but in her own right.

It is well-settled that the insurance contract, like any other agreement, constitutes the law between the contracting parties. La.Civ.Code Art. 1901, Schmieder v. State Farm Fire and Casualty Company, 339 So.2d 390 (La.App. 1st Cir. 1976), writ ref. 341 So.2d 895 (La.1977); Wiley v. Louisiana and Southern Life Insurance Company, 302 So.2d 704 (La.App. 3rd Cir. 1974), writs ref. 305 So.2d 540 and 541 (La.1975); Prestenback v. Prudential Insurance Company of America, 257 So.2d 698 (La.App. 4th Cir. 1972); Vidrine v. Southern Farm Bureau Casualty Insurance Co., 247 So.2d 660 (La.App. 3rd Cir. 1971). The provisions of the insurance policy should be given effect except to the extent to which they conflict with law or public policy. O’Donnell v. Fidelity General Insurance Company, 344 So.2d 91 (La.App. 2nd Cir. 1977).

Under that section of the subject insurance policy entitled, “Protection Against Uninsured Motorists,” the subpart entitled “Definitions” states in pertinent part, “The definitions under the Liability Coverage, except the definition of ‘Insured,’ apply to the Uninsured Motorists Coverage[.]” The definitions sub-part of the Liability Coverage states in part: “ ‘[Njamed insured’ means the individual named in item 1 of the declarations and also includes his spouse, if a resident of the same household[.]” Item 1 of the declarations page of the policy names Claiborne J. Oncale, Jr. as the named insured.

The definition of “named insured” in the policy is clear and unambiguous. Plaintiffs do not contend that Mr. and Mrs. Oncale, Jr. were not residents of the same household at the time UM coverage was rejected. Nor do plaintiffs contend that the policy definition of “named insured” is contrary to law or public policy. Where a policy of insurance contains a definition of any word or phrase, this definition is controlling. Allstate Insurance Company v. Montalbano, 335 So.2d 793 (La.App. 1st Cir. 1976); Hendricks v. American Employers Insurance Company, 176 So.2d 827 (La.App. 2nd Cir. 1965); writ ref 248 La. 415, 179 So.2d 15 (1965). Thus, giving full effect to the written provisions of the policy, we conclude that Mrs. Claiborne J. Oncale, Jr. was a “named insured” therein.

We are also of the opinion that the phrase “any insured named in the policy” found in La.R.S. 22:1406(D)(l)(a) is substantially synonymous with the phrase “named insured” found in the subject insurance policy. For this reason, under the clear provisions of the policy and La.R.S. 22:1406(D)(l)(a), Mrs. Claiborne J. Oncale, Jr. was herself empowered to reject UM coverage in the subject policy, not as the agent of her husband, but in her own right.

KNOWLEDGE

Plaintiffs finally argue that the affidavits demonstrate that Mrs. Oncale, Jr. did not know she was rejecting UM coverage when she signed the rejection form, and that at no time was any mention made of rejection of such coverage. However, the rejection form completely and thoroughly detailed the options available for UM coverage under Louisiana law. This form contained a bold-print heading which read, “An Important Message About Your Uninsured Motorists Coverage.” The information contained on the rejection form is in ordinary-sized print and in layman’s terms. We are of the opinion that even the most casual reader of the rejection form would easily understand the consequences and implications of the information provided therein. Plaintiffs have not alleged that there was no discussion whatsoever of UM coverage, but only that nothing was explained as to UM rejection. We find that the rejection form signed by Mrs. Oncale, Jr. was self-explanatory and was not confusing or misleading in the least. A person who signs a written document is presumed to have knowledge and understanding of that which he signs. South Port Corporation v. P. Olivier & Sons, 179 La. 233, 153 So. 825 (1934); Holt v. City of Bossier City, 384 So.2d 495 (La.App. 2nd Cir. 1980); South Central Beil Telephone Company v. McKay, 285 So.2d 563 (La.App. 1st Cir. 1973). Failing any fraud or misconduct by the insurance agent (and we find no actual allegations of same in the pleadings or affidavits), the plaintiffs are bound by the written rejection of UM coverage by Mrs. Oncale, Jr.

SUMMARY JUDGMENT

Under the clear and unambiguous provisions of the insurance policy and La.R.S. 22:1406(D)(l)(a), Mrs. Oncale, Jr. was empowered to reject UM coverage on her own. There is no genuine dispute as to the fact that she did so. Thus, defendant Aetna was entitled to judgment as a matter of law, and the trial court properly granted summary judgment to defendant under La. Code Civ.P. Art. 966.

DECREE

Therefore, for the above and foregoing reasons, the judgment of the trial court is hereby affirmed, all costs being assessed to plaintiffs-appellants.

AFFIRMED.

      . Named as party plaintiffs are Claiborne J. Oncale, Sr.; Mrs. Blanche Oncale; Claiborne J. Oncale, Jr., individually and as administrator of his minor children, Elaina Oncale and Crystal Oncale; and Mrs. Priscilla T. Oncale.

      . Repealed by Acts 1979, No. 709, § 2.

      . See also Thomas v. Protective Life Insurance Company, 319 So.2d 878 (La.App. 3rd Cir. 1975); Elledge v. Warren, 263 So.2d 912 (La. App. 3rd Cir. 1972), writ ref. 262 La. 1096, 266 So.2d 223 (1972).


text:
    Frank P. WILLIAMS v. OFFSHORE FOOD SERVICE, INC. and XYZ Insurance Company.
    No. 14977.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.

      Pete Lewis, New Orleans, for plaintiff and appellant.
    Harriet R. Young, New Orleans, for defendants and appellees.
    Before LEAR, CARTER and LANIER, JJ.
   CARTER, Judge:

This workmen’s compensation case is before us on appeal from a judgment of dismissal holding that appellant Frank P. Williams failed to prove a compensable accident and resulting disability in the course of his employment while employed as a truck driver by defendant-appellee Offshore Food Service, Inc.

Appellant Williams instituted suit against Offshore Food Service, Inc. and XYZ Insurance Company seeking benefits for total and permanent disability, medical expenses in the sum of $12,500.00, statutory penalties and attorney fees. Offshore Food Service, Inc. filed an answer of general denial. After trial on the merits and pursuant to written reasons, the trial judge rendered judgment in favor of defendant-appellee Offshore Food Service, Inc. dismissing appellant’s suit at his costs. From this judgment, appellant has perfected this appeal.

The basic issues presented on this appeal are whether or not appellant Williams proved the occurrence of an accident in the course of his employment, and if such an accident occurred, whether any disability resulted.

Appellant was employed by appellee to transport and unload food supplies for offshore oil rigs on December 28, 1977. He had previously worked for appellee from November 25,1970 until he quit on January 20, 1971, and again worked from July 6, 1971 until he terminated on November 6, 1971. Appellant’s petition alleges that he sustained injuries while unloading a box of meat from a truck on February 23, 1978. He testified that he could not remember the date of the accident, but it occurred about 2:00 o’clock in the morning between the 4th and 6th of February, 1978, while at the Tenneeo Dock in Intracoastal City.

After unloading at the Tenneeo Dock, appellant testified that he returned to the warehouse and that Sam Pertuit (his supervisor) “saw there was something wrong with me and asked me what happened ... ”. Appellant’s version is that Pertuit told him to go home and if he didn’t improve to see a doctor. After staying home a few days, he testified that he returned to work and was not able to make a scheduled trip to Texas. His testimony was that he did make a trip to Grand Isle while suffering severe pain, and upon returning was again advised by Pertuit to go home. Appellant then testified that his mother was called the next day and told to tell him to turn his credit cards in, and that he was fired. Appellant contends that since February of 1978, he has not been able to work and has been unemployed.

Appellant’s testimony was contradicted in virtually every respect by Sam Pertuit who testified by deposition. He testified that appellant never told him anything about his back bothering him. He stated that appellant only told him that he had to take some time off because of the illness of one of his daughters. Pertuit further testified that he was informed that appellant hadn’t shown up for work and he called appellant’s mother and told her that if appellant was not coming back to work he would have to turn in his credit cards. Approximately two or three days later, he was informed that the credit cards had been returned. Pertuit’s testimony was that neither appellant nor any member of his family ever told him that appellant was injured or sick.

Robert John Blackwell, Jr., Personnel Manager of appellee Offshore, testified that there was never any report of accident and injury made to him, and that no report was ever made. He identified time cards and trip logs of appellant which showed that appellant worked February 1-10, 13-17, 20-24, 27, and additionally March 21, 22, 27, 28 and 29. Appellant did not return to work thereafter.

Appellant Williams did not consult a physician immediately after the alleged injury. However, in the early part of April, 1978, he applied for a job at John Wiemann’s TV and Appliances and was accepted provided he could pass a physical examination. He was referred to Dr. Herman E. Walker, General Practitioner, for a preemployment physical which occurred on April 12. Dr. Walker found osteophyte or spur formations on the interior of L2 and the anterior of L3. As a result of the examination, Dr. Walker did not recommend appellant for employment on a job requiring heavy lifting or heavy labor as required in delivering refrigerators, washers, dryers, etc.

Dr. Walker was of the opinion that the spur formations were more likely degenerative changes and not trauma induced. He felt that if these degenerative changes were trauma induced they were more likely to result from a hyperflexion injury in the nature of a whiplash and not from picking up a box of meat weighing approximately 75 lbs. Dr. Walker’s opinion was that picking up such a box would tend to cause a lumbosacral strain or ruptured disc, but not spurs on the anterior vertebral body. Dr. Walker further testified:

“Q. And from the report you have, there was no indication that he was suffering from any back problem or disability at the time that you examined him?
A. He denied all of the questions that I have mentioned to you previously. He denied ever having back trouble.
Q. More specifically, your report does not indicate him having any symptoms that would indicate—
A. He denied specifically that he had — I said, ‘Have you ever hurt your back?’ He said, ‘No’.
Q. On the basis of that report, though, would you say he had been symptomatic of a back problem at the time you saw him?
A. Not on the basis of this report on history or physical.”

On July 27, appellant was examined by Dr. Kenneth N. Adatto, an orthopedic surgeon. Dr. Adatto testified that appellant related to him that he had been under the care of Dr. Walker “who had disabled him” because he could not pass a pre-employment physical. Appellant related to Dr. Adatto that he had previously injured his back about six months before the instant injury but that he had fully recovered about two months after the injury.

Dr. Adatto found mild muscle spasm and mild degenerative changes at L3 vertebral body and a transitional vertebral body at L5, SI. He felt that appellant had early preexisting arthritis, but felt the muscle spasm would clear up in time. He testified that the transitional body noted at the L5, SI was not a result of trauma but developmental, not usually symptomatic and “doesn’t present any problems.” Dr. Adat-to estimated that approximately 80% of the spur formations were degenerative in origin and 20% trauma induced. When trauma induced, the spur usually developes in six months to one year post injury. Dr. Adatto declined to assess disability or ability to work and stated this assessment would have to be made by Dr. Walker. He did testify that appellant should avoid repetitive stooping and bending, and not lift objects from 25 to 50 lbs.

The law is well settled that the testimony of a plaintiff alone in a workmen’s compensation case is sufficient to establish the occurrence of an accident, if there is nothing to discredit his account thereof and where his statements are supported by the surrounding circumstances. Dolhonde v. Gullett Gin Co., 25 So.2d 104 (La.App. 1st Cir. 1946); Cavender v. Flenniken Construction Co., 247 So.2d 652 (La.App. 2nd Cir. 1971); Smith v. Louisiana Welding Supply Co., Inc., 331 So.2d 606 (La.App. 1st Cir. 1976).

Even though the testimony of a plaintiff alone in a workmen’s compensation case is sometimes sufficient to establish the occurrence of an accident, he still must establish an accident by a preponderance of the evidence; that is by evidence which as a whole shows it to be more probable than not that an accident occurred. Landry v. Employers’ Liability Assurance Corp., Ltd., 233 So.2d 624 (La.App. 3rd Cir. 1970); Smith v. Louisiana Welding Supply Co., Inc., supra.

In the instant case, appellant presented no evidence to support his version of having sustained an accident and in fact, appellee provided documentation to refute and contradict appellant in virtually every particular. In essence, appellant’s case is that an accident occurred sometime, somewhere and was reported to someone, but the claim is unsupported by any evidence other than the appellant’s own contradictory testimony, said testimony also being contradicted by virtually all other evidence presented.

It is well settled that the findings of fact of a trial court will not be disturbed unless manifestly erroneous. Canter v. Koehring, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

In the trial judge’s written reasons for judgment, he stated:

“After considering the record of this case, the Court has concluded that the central issue which is depositive of this lawsuit is whether or not there was an accident and/or injury on or about February 23, 1978, as claimed by plaintiff.
It is the opinion and conclusion of the Court that plaintiff has failed to prove by a preponderance or sufficiency of evidence that an accident occurred or that he was injured in an accident during the course and scope of his employment on or about February 23, 1978.
According to plaintiff, after returning from his trip to Intracoastal City, he reported the alleged accident and injury to his back to Mr. Sam Pertuit. The testimony of Mr. Pertuit, given in deposition, clearly refutes plaintiff’s claim of having reported an accident and injury to Per-tuit. Likewise, the records of defendant contradict plaintiff’s claim of having reported an accident or injury. The Court believes that had plaintiff reported the matter to Pertuit or any other employee of defendant, that fact would have been shown in the records of said company. Or, at least, some witness could have corroborated that fact.
Furthermore, the Court is not satisfied the evidence is sufficient to support the claim that even if an accident did in fact occur, defendant suffered an injury to his back, or that the alleged accident caused an aggravation of a pre-existing arthritis or degenerative condition of the spine. After reading the depositions of Dr. Herman E. Walker and Dr. Kenneth N. Adat-to, the Court has concluded that the evidence is insufficient to justify a conclusion that plaintiff either injured his back or aggravated a pre-existing condition of the spine as he claimed. In fact, a reading of the deposition of Dr. Walker, who made a pre-employment physical of plaintiff on April 12, 1978, for John Wiemann TV and Appliances, leads inescapably to the conclusion that plaintiff never hurt his back, something he admitted to Dr. Walker.
For these reasons the Court has concluded that Mr. Williams has failed to carry the burden of proof, and accordingly, the Court will render judgment in favor of defendant dismissing this lawsuit with prejudice.”

Clearly, in the instant case, the surrounding circumstances tend to negate rather than support appellant’s allegation that an accident occurred. We conclude that a reasonable evaluation of the evidence abundantly supports the trial court’s finding that an accident did not occur on the day in question. We cannot say that the trial court committed manifest error in rejecting appellant’s testimony, especially in view of the great weight afforded the trial court’s evaluation of the credibility of witnesses.

We therefore affirm the ruling of the trial court dismissing appellant Williams’s suit at his costs.

AFFIRMED.


text:
    Alan V. ANDRIES v. GENERAL MOTORS CORPORATION, DELCO BATTERIES DIVISION, et al.
    No. 14992.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.

      Edward P. Sutherland, Baton Rouge, for plaintiff-appellant Alan V. Andries.
    Joseph S. Palermo, Jr., Peter L. Bernard, Jr., Metairie, for defendant-appellee General Motors Corp.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   SHORTESS, Judge.

Alan V. Andries (plaintiff) was injured when a Delco battery exploded in his face and blinded him in the left eye. He brought suit against General Motors Corporation, manufacturer of the battery. A jury returned a verdict in defendant’s favor, and plaintiff has appealed to this court.

The jury made its findings using a special interrogatory form, as follows:

1. Was the Delco battery in normal use at the time of the accident?
Yes V No_
2. Was the Delco battery unreasonably dangerous in normal use at the time of its manufacture?
Yes_ No /
3. Did the defendant General Motors give an adequate warning of any unreasonable danger from a foreseeable use of the product?
Yes V No_
4. Was the damage to plaintiff, if any, actually caused by the Delco battery?
Yes / No_
5. Did plaintiff assume the risk of injury suffered?
Yes_ No /

Plaintiff’s complaint on appeal is that the jury’s finding that an adequate warning was given was contrary to law and the evidence presented at trial; that the trial court erred in failing to properly instruct the jury of defendant’s duty to warn of the battery’s dangerous propensities; that the court erred in refusing to give plaintiff’s requested instructions on duty to warn and by striking the word “clear” from special interrogatory No. 3.

Most of the relevant evidence is undisputed. A stipulation of fact was entered at the beginning of trial, wherein the parties agreed that a 1977 Chevrolet Malibu Classic automobile had been purchased new by Mickey J. Marcello from a General Motors dealer in Louisiana, which contained as original equipment a Delco battery manufactured by defendant; that this battery was designated as a Y-86-P battery, which was the type battery in the vehicle at the time of the accident.

On June 7,1978, around 9:00 p. m., plaintiff, his wife and child were enjoying an automobile ride when they came upon a disabled vehicle at the intersection of Tara Boulevard and Goodwood Boulevard; that Bessie Marcello, who had been driving the disabled car, had left it and was standing across the street with a small child; that plaintiff asked her if she needed help; that he obtained her ignition keys and approached the vehicle; that when he attempted to start the car he noticed that neither the buzzer nor the dome light worked; that he pulled the hood latch, went around to the front of the car, and was met by Jimmy Carlino, Mrs. Marcello’s cousin; that the two men looked under the hood; that it was nighttime and visibility was poor but plaintiff did find the battery and actually removed one or two of the battery caps; that plaintiff asked if anyone had a flashlight and even went to his car in an attempt to find one, but was unable to do so; that he took a cigarette lighter out of his pocket, lit it, and an explosion occurred; and that this explosion caused serious damage to his face and eyes.

One of the disputed facts in this scenario is where plaintiff was standing at the time of the explosion, i.e., was he leaning over the hood before he lit the lighter, or did the explosion occur while he was standing erect and in front of the vehicle itself.

Jimmy Carlino testified that he was just to the plaintiff’s right before the explosion; and that the plaintiff leaned over the battery just before it exploded. Plaintiff testified that he took the lighter out of his pocket, struck the lighter, leaned over toward the car, put the lighter down into the compartment, and the explosion occurred which knocked him back.

The trial judge gave the following instruction relative to adequate warning:

A manufacturer of a product must give an adequate warning of any danger inherent in any product made by him or in its use which he knows or should know, and which the user of the product would not ordinarily discover. The warning should be such that if followed, it would make the product safe for users. To comply with this duty, the manufacturer must appropriately label the product, giving due consideration to the likelihood of accident and the seriousness of the consequences from failure to label it to warn of any dangers that are inherent in it and its use or that may arise from improper handling or use of the product. However, the duty of a manufacturer to warn goes only to those dangers which are not obvious. A manufacturer is not compelled to warn knowledgeable purchasers of the dangers of which they know or should be aware.

The interrogatory submitted to the jury on the adequate warning issue stated:

Did the defendant General Motors give an adequate warning of any unreasonable danger from a foreseeable use of the product?

The jury answered the interrogatory by a vote of 9 to 3, in favor of defendant. In connection therewith, a facsimile of the warning was introduced in evidence, and a copy thereof is shown below:

The jury also had the testimony of Mickey J. Marcello, owner of the Chevrolet in question and, by coincidence, a battery salesman by occupation. He testified that there was a warning label on the top of the battery at the time of the accident, but he could not pinpoint its exact location.

Bessie Marcello testified that she had car trouble two to four weeks prior to the accident; that in the course of getting jumped off, she was told there was a warning label on the battery so she got out of the car and noticed the label.

Unfortunately, the exact location of the warning label on the battery could not be definitely established. The morning after the explosion, a mechanic brought a new battery for the car, took the old one, and it was never seen again.

Defendant conceded that a battery is a dangerous instrument; that it is an electrochemical device which produces current through chemical reactions; that a natural and unavoidable result of these chemical processes is the generation of explosive concentrations of hydrogen and oxygen gases; that batteries are vented through flame-arrestor devices into harmless non-explosive mixtures, but, notwithstanding these procedures, defendant has known for some time that users sometimes introduce flames or sparks into very close proximity to these escaping gases which can cause explosions; that this knowledge prompted defendant to place notices on all its wet-cell batteries.

Was an adequate warning given? Our brethren in the Third Circuit in Hudgens v. Interstate Battery Systems, Etc., 393 So.2d 940 (La.App.1981), in a very similar ease, found that a warning printed on a battery cap was adequate. The text of the warning in Hudgens is almost identical to the text of the warning here. We feel that the warning here was adequate to warn the public of the danger involved in using sparks or flames around the battery.

Another issue is whether or not the warning was displayed adequately, so that a reasonable man, unaware of the danger, could see and understand the warning before striking a match or flame. The jury decided this issue of fact adverse to plaintiff. In doing so, the record indicates that it could have considered these facts: Prior to striking his lighter, plaintiff had found the battery and battery caps, and had actually removed one or two caps. Jimmy Car-lino testified that plaintiff leaned over the battery and lit his lighter. This was the second time plaintiff was over the battery, and this is when the explosion occurred. It was reasonable for the jury to conclude that plaintiff had to have been working over the battery and could have seen the warning, as he had found the caps and manufacturer’s name notwithstanding the poor illumination.

Plaintiff cites Chappuis v. Sears Roebuck & Co., 358 So.2d 926 (La.1978), as his basic authority. However, Chappuis dealt with the danger known to the manufacturer which could not be justifiably expected to be within the knowledge of users generally. The Supreme Court found that it was incumbent upon defendant to take reasonable steps to warn the user because the manufacturer knew that if the hammer chipped, it became unsafe, since it would likely chip again. Since the manufacturer knew of the hammer’s dangerous propensities, the court said that it had to specifically warn the public to discontinue using the hammer if it became chipped.

Here, users of automobiles know that under an automobile’s hood are moving parts, spark plugs, fuel lines, oil, gases, fumes, etc. However, assuming that the danger of an exploding battery, by the introduction of a spark or flame near it is not that sort of knowledge expected to be generally known by users, was the trial court’s instruction and the jury’s finding correct as to the law and evidence? We cannot say that the jury’s finding or the trial court’s instructions herein were erroneous.

We feel that a jury could have found that an adequate warning was given under the facts of this case. The trial court properly instructed the jury as to defendant’s duty to warn, and it did not err in striking the word “clear” from the special interrogatory on adequacy of warning.

Plaintiff also complains that the trial judge erred in failing to give additional instructions on the adequacy of warning issue when the jury requested further instruction from the court.

All sides conceded that the difficult issue was the adequacy of warning. The colloquy between the court and the foreperson of the jury in the presence of lawyers, during deliberations, does not indicate that the trial court abused its discretion in failing to give additional instructions. The trial judge reminded the foreperson that he had instructed them fully as to the law, and that both sides had presented their arguments accordingly. He suggested that the jury return for further deliberations but if they had additional problems, to let him know again. Additional problems were apparently not encountered because, within a reasonable time thereafter, the jury returned; and nine jurors were able at that time to answer the interrogatory which disposed of the remaining factual issue before it.

The decision of the trial court is affirmed at plaintiff’s costs.

AFFIRMED.