author: YELVERTON, Judge. DOUCET, Judge,

text:
    Johnny CRYER, Plaintiff-Appellant, v. CITY OF ALEXANDRIA Through the ALEXANDRIA POLICE PENSION AND RELIEF BOARD, Defendant-Appellee.
    No. 82-393.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 10, 1983.
    Michael Shannon, Alexandria, for plaintiff-appellant.
    B. Dexter Ryland, Alexandria, for defendant-appellee.
    Before CULPEPPER, DOUCET and YELVERTON, JJ.
   YELVERTON, Judge.

Johnny Cryer applied to the City of Alexandria, through the Alexandria Police Pension and Relief Board, for disability retirement benefits. The Pension Board denied the application, finding Cryer ineligible for benefits because he did not become disabled while in the performance of his duties. He then sued the City which responded with exceptions of no right or cause of action. The trial court sustained the exception of no cause of action and dismissed the suit. We affirm.

The petition alleges that during his adolescent years, Cryer suffered a dislocation of a shoulder while riding a bull. In later years the dislocation recurred frequently and became increasingly more difficult to correct. Plaintiff joined the Alexandria Police Department as a Police Lieutenant on March 1,1968. The dislocation hindered the performance of his duties. For these reasons he underwent surgery in 1977 in an attempt to repair the problem. The surgery was unsuccessful and resulted in an even greater limitation of his shoulder. The petition alleges that because petitioner was unable to resume his duties as police lieutenant due to his physical incapacity, his employment was terminated in late 1978.

Based on these allegations Cryer contends that he was “disabled while in the performance of his duties”, as provided by La.R.S. 33:2234(A).

There are two retirement systems applicable to the Alexandria Police Department. The first one, known as the Police Pension and Relief Fund, was the only system in effect when plaintiff became a policeman in 1968. He was a member of that system throughout his ten years on the police force. Disability retirement under that system is provided by R.S. 33:2234(A), as follows:

“The board shall retire from service in the police department any member of the department found by a majority vote of the board to have become physically or mentally, permanently or temporarily, disabled while in the performance of his duties, as determined by the report of the department physician, and shall place the retired member on the pension or relief roll.” (emphasis supplied.)

Both the District Court and the Pension Board construed the underscored language “disabled while in the performance of his duties” to mean that to qualify, plaintiff must have become disabled as a result of an injury suffered while in the performance of his duties, i.e., the disability must have been caused solely by an injury in the line of duty. Since plaintiffs disability was not caused by an injury which occurred in the line of duty, but instead by an incident that occurred in his youth before he joined the department, the conclusion was reached that he was not eligible for retirement disability.

We agree with this interpretation. We cannot subscribe to the argument that the language “while in the performance of his duties” means no more than a temporal relationship between the disability and the job, or that plaintiff need establish no more than that he became disabled while employed. Although we find no case specifically interpreting this language, we find abundant evidence in other laws dealing with the numerous statewide retirement systems in this State that the Legislature is well aware of the distinction between disability that is job related and disability for any cause, and that the language in R.S. 33:2234 means just what it says: disability retirement is available only to one who becomes disabled from an injury while in the line of duty.

The meaning and intent of a statutory provision is to be determined by a consideration of its language and all other laws on the same subject matter, and a construction should be placed on the provision in question which is consistent with the express terms of the statute and with the obvious intent of the Legislature in enacting it. Hoffpauir v. City of Crowley, 241 So.2d 67 (La.App. 3rd Cir.1970).

This construction of the language of R.S. 33:2234 is reinforced by a consideration of the disability retirement provisions of the second system applicable to policemen in the City of Alexandria. This later system, known as the Municipal Police Employees Retirement System, was created in 1973. Under this system a member qualifies for disability benefits if he is found to be totally disabled (a) solely as the result of injuries sustained in the performance of his official duties, or (b) for any cause provided the member has at least five years of creditable service. La.R.S. 42:702(1) and R.S. 33:2376(B). Similar provisions are to be found in R.S. 42:702 applicable to the State Police Retirement Fund, the Firefighters’ Retirement System, and the Sheriffs’ Pension and Relief Fund, except that in the latter system ten years of creditable service is required before benefits are allowed for disability for any cause. The eligibility requirements for disability benefits for 16 statewide retirement systems are set out in R.S. 42:702. Not one of them allows disability for any cause before at least five years of creditable service has been earned.

Germane to the instant case, and indicative of the Legislative intent with regard to the definition of disability, we note the following language in the concluding paragraph of R.S. 42:702:

“Any disability claimed by a member of a state or statewide retirement system must have been incurred after commencement of service in the system with which the claim is filed. Disability claims shall not be honored in the case of preexisting conditions.”

Plaintiff seeks benefits only under R.S. 33:2234. The petition reveals that at the time he became disabled, he had more than five years creditable service. Since he does not seek to recover under the provisions of the retirement system later enacted allowing members of the department to receive disability benefits regardless of whether they were disabled during the performance of duty, provided they had served five years, it is obvious that plaintiff elected not to join the new system when it came into existence, but instead elected to remain under the benefits of the system in effect when he joined the department in 1968, R.S. 33:2234.

We conclude that no disability benefits are available, regardless of the years of service, to members of the Police Pension and Relief Fund System, unless disability is caused by an injury in the line of duty. The Municipal Police Employees Retirement System, on the other hand, broadens the scope of protection to its members with five or more years of service credit. While the eligibility requirements under the new system are less limiting than under the old system, we note that the percentage of pay contribution required of members under the new system is higher than the contribution under the old system. Perhaps this is the reason why plaintiff elected to remain in the old pension system. Whatever the reason, he elected to remain in the Police Pension and Relief Fund System and his rights are confined to its provisions. We are powerless to give the statute a construction contrary to its plain language. Accepting the allegations of the petition as true and giving the petition the most liberal construction, nevertheless we agree with the District Court that plaintiff did not become disabled while in the performance of his duties, and his suit was properly dismissed. The actuarial integrity of the pension fund commands this result.

The judgment of the trial court dismissing plaintiff’s suit is affirmed. Costs of appeal are to be paid by plaintiff.

AFFIRMED.

DOUCET, J., dissents and assigns written reasons.

DOUCET, Judge,

dissenting.

I respectfully dissent, being of the opinion that aggravation of a pre-existing condition is compensable pursuant to LSA-R.S. 33:2234. Accordingly, plaintiff’s petition, although subject to an exception of vagueness, states a cause of action.

According to plaintiff’s petition, he began employment with the Alexandria Police Department in March of 1968, at which time he had a pre-existing shoulder injury which resulted in dislocation. In the years that followed, plaintiff alleges he “continued to suffer frequent dislocation of his shoulder, which dislocation became increasingly more difficult to correct causing petitioner continual pain and anxiety.” Plaintiff further claims that the condition continued to be aggravated to the point it hindered his performance of duties and hospitalization was required. The surgery was unsuccessful and resulted in increased disability, therefore, plaintiff applied to the City of Alexandria through the Alexandria Police Pension and Relief Board for disability retirement benefits as provided by LSA-R.S. 33:2234. The requests were denied. Thereafter, plaintiff’s employment with defendant was terminated. Suit followed wherein plaintiff sought the aforesaid benefits and full, general and equitable relief. Defendant subsequently filed peremptory exceptions of no right of action and no cause of action.

The law concerning the peremptory exception of no cause of action was summarized in Haskins v. Clary, 346 So.2d 193 (La.1977) as follows:

“[1] The peremptory exception of no cause of action tests the legal sufficiency of the petition, and is triable on the face of the papers. For the purpose of determining the validity of the exception, all well-pleaded allegations of fact are accepted as true, and if the allegations set forth a cause of action as to any part of the demand, the exception must be overruled. Pence v. Ketchum, 326 So.2d 831 (La.1976); Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975); Louisiana State Board of Medical Examiners v. England, 252 La. 1000, 215 So.2d 640 (1968).
Liberal rules of pleading prevail in Louisiana and each pleading should be so construed as to do substantial justice. La.C.C.P. art. 865; Pence v. Ketchum, supra; Eschete v. City of New Orleans, 258 La. 133, 245 So.2d 383 (1971). When it can reasonably do so, the court should maintain a petition so as to afford the litigant an opportunity to present his evidence. Pence v. Ketchum, supra, Hero Lands Company v. Texaco, Inc., supra; Eschete v. City of New Orleans, supra; Erath Sugar Company v. Broussard, 240 La. 949, 125 So.2d 776 (1961).
* * * * * *
Louisiana Code of Civil Procedure Article 931, which prohibits the introduction of evidence to support or controvert the objection that the petition fails to state a cause of action, limits the availability of such an objection as a vehicle for affirmative defenses to those which are disclosed by the petition itself. See, Steeg v. Lawyer’s Title Insurance Corporation, 329 So.2d 719 (La.1976); American Creosote Company v. Springer, 257 La. 116,241 So.2d 510 (1970); Roloff v. Liberty Mutual Insurance Company, 191 So.2d 901 (La.App. 4th Cir.1966); Smith v. Williams, 152 La. 948, 94 So. 859 (1922); McMahon, The Exception of No Cause of Action in Louisiana, 9 Tul.LRev. 17 (1934-35).
The general rule applicable to trial of such exceptions is that an exception of no cause of action must be overruled unless the allegations of the petition exclude every reasonable hypothesis other than the premise upon which the defense is based; that is, unless plaintiff has no cause of action under any evidence admissible under the pleadings. West v. Ray, 210 La. 25, 26 So.2d 221 (1946); Babineaux v. Southeastern Drilling Corp., 170 So.2d 518 (La.App. 3d Cir.1965). Because a petition is subject to more than one interpretation or is vague, does not mean that it is fatally deficient. A vague, uncertain, or indefinite petition is subject to an exception of vagueness, but not to an exception of no cause of action. Brunson v. Mutual Life Ins. Co. of N. Y., 189 La. 743,180 So. 506 (1938); Goldsmith v. Virgin, 122 La. 831, 48 So. 279 (1909).” (Emphasis added).

LSA-R.S. 33:2234 provides in pertinent part:

A. The board shall retire from service in the police department any member of the department found by a majority vote of the board to have become physically or mentally, permanently or temporarily, disabled while in the performance of his duties, as determined by the report of the department physician, and shall place the retired member on the pension or relief roll. (Emphasis added).

At the present time there are two retirement systems applicable to the Alexandria Police Department, one of which is R.S. 33:2234, supra, and the other being R.S. 33:2376. Only the former is applicable to plaintiff nonetheless counsel for defendant, in hearings befor the trial court, referred to R.S. 33:2376 as being suggestive of the legislative intent in enacting R.S. 33:2234.

The relevant portions of R.S. 33:2376 state:

A. Eligibility for disability benefits, procedures for application for disability benefits, procedures for the certification of continuing eligibility for disability benefits, the authority of the board of trustees to modify disability benefits, and procedures governing the restoration to active service of a formerly disabled employee are specifically described and provided for in R.S. 42:702 through R.S. 42:706.
B. The board of trustees shall award disability benefits to eligible members who have been officially certified as disabled by the State Medical Disability Board. The disability benefit shall be determined as follows:
Upon application for retirement due to a total and permanent disability, any member with at least five years creditable service, unless the disability is caused solely as the result of injuries sustained in the performance of his official duties, and who is unable to engage in any gainful employment shall receive a disability benefit equal to sixty percent of his average final compensation. Any member who is totally and permanently disabled from performing the duties as an employee as defined in R.S. 33:2372(2), but is able to engage in a gainful employment, shall receive thirty percent of his average final compensation. For disability retirement purposes only, the average final compensation shall consist of the highest paid thirty-six consecutive months salary earned prior to the date of the cause of the disability. In no case shall the disability benefit be approved by the board of trustees until all employee and employer contributions are paid to the retirement system, covering through the date of the cause of the disability claim or the date of termination of employment, or both, whichever is applicable.

As counsel for defendant noted at trial court proceedings, “in the second pension it seems clear that they recognized the deficiency of the first pension” inasmuch as those with the requisite amount of service are afforded benefits even in those circumstances where the disability is not incurred in the line of duty and those without the requisite years of service are afforded benefits only where the disability is total and permanent and “caused solely as the result of injuries sustained in the performance of his official duties.” R.S. 33:2376. LSA-R.S. 42:702(1) also refers to “totally disabled (a) solely as the result of injuries sustained in the performance of his official duties.” Thus it appears that the legislature intends to limit the right of recovery prospectively, with regard to employees to whom R.S. 33:2234 is not applicable and those without the requisite amount of service, to those injured in the line of duty and as a sole result thereof are rendered totally disabled.

On the other hand, R.S. 33:2234 provides benefits where a member of the police department is “permanently or temporarily, disabled while in the performance of his duties.” There is no reference to injury occurring in the performance of duty rendering the member disabled. Furthermore, there is no indication that the sole cause of the disability must be an injury in the line of duty. There is no definition of “disability”, nor is there any jurisprudence indicative of the above clause’s interpretation.

It is axiomatic that remedial statutes are to be liberally construed. State v. Boniface, 369 So.2d 115 (La.1979). What is a liberal construction is ordinarily one which makes the statutory rule or principle apply in more situations than would be the ease under a strict construction. State v. Boniface, supra; Wiley v. Missouri Pacific Railroad Co., (La.App. 3rd Cir.1982) Docket No. 82-229. Applying the proper rules of interpretation to R.S. 33:2234, the only statute applicable to plaintiff, I believe that the statute allows for benefits where the performance of official duties causes an injury to become disabling. A like result would be reached if we were to apply the analogous egg-shell principle found in tort law or the workmen’s compensation maxim that aggravation of a pre-existing condition is compensable. There is no indication that a contrary result was intended insofar as R.S. 33:2234 is concerned. The petition states a cause of action, albeit it does so rather vaguely.

Whether plaintiff could prove that performance of his duties caused his pre-exist-ing injury to become disabling is irrelevant to our review of whether petitioner should be allowed his day in court.

For the reasons assigned, I respectfully dissent.

      . The formal judgment indicates that the dismissal was based on the sustaining of an exception of no right of action. However, this was clearly an inadvertence or typographical mistake, since a colloquy in the record between court and counsel indicates that the court recognized plaintiff had an interest in the right asserted and that he had a right of action. Therefore, we address the exception of no cause of action.

      . The question of whether plaintiff is entitled to benefits is subject to judicial review in spite of, or in view of action taken by the board. Hoffpauir v. City of Crowley, 241 So.2d 67 (La.App. 3rd Cir.1970), Wr. denied 242 So.2d 578.


source: Caselaw Access Project

author: REDMANN, Chief Judge.

license: Public Domain

text:
    Donald J. PALMISANO, et al. v. LAKE FOREST BOULEVARD MEDICAL DEVELOPMENT, et al.
    No. CA 0087.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1983.
    Alvin A. LeBlanc, Jr., Jerome M. Volk, Jr., DeMartini, LeBlanc & D’Aquila, Ken-ner, for plaintiffs/appellants.

      Russ M. Herman, Herman, Herman & Katz, Donald A. Meyer, Shushan, Meyer, Jackson, McPherson & Herzog, and Frank J. Rabito, New Orleans, for defendants/ap-pellees.
    Before REDMANN, C.J., and LOBRA-NO and WARD, JJ.
   REDMANN, Chief Judge.

The question in this suspensive appeal, from mandamus ordering erasure from the mortgage records of a notice of lis pendens, is whether the pendency of an action by a minority of partners in commendam to terminate an ordinary partnership supports the recordation of such a notice. We conclude that it does not and we therefore affirm.

The basic facts are that defendant partnership has one general and several in com-mendam partners. The articles of partnership grant to the general partner the full and exclusive management of the partnership’s affairs, expressly including the authority to sell and otherwise deal in its immovable property (the purpose for which the partnership was formed). The general partner has given a listing agreement to sell the partnership’s property. Some of the partners in commendam attack the propriety of that agreement and therefore seek to terminate the partnership and to avoid that agreement.

The basic law is that a partnership is “a judicial person, distinct from its partners,” La.C.C. 2801 (as amended, La. Acts 1980 No. 150, applicable to existing partnerships, id. § 2). Immovables are owned by the partnership, art. 2806, rather than by the partners as owners in indivisión. A partnership may be judicially terminated, C.C. 2826, presumably for such cause as a sole general partner’s fundamental breach of the fiduciary obligation declared by art. 2809 ; but such a termination only occurs “by judgment of termination.” Art. 2830 provides that “When a partnership terminates [as “by judgment of termination,” art. 2826], the authority of the partners to act for it ceases ...implying that the authority continues until the judgment of termination is rendered.

Moreover, the termination of the partnership does not have the effect of transferring to the partners the ownership of the partnership’s immovables. Ordinarily the general partners’ authority to act for the partnership continues “with regard to acts necessary to liquidate its affairs,” C.C. 2830, and “a partnership is liquidated in the same manner and according to the same rules that govern the liquidation of corporations ..., retaining] its juridical personality for the purpose of liquidation,” C.C. 2834.

We conclude that the mere filing of a suit for termination of a partnership, together with recording a lis pendens notice, cannot be given the effect of terminating the partnership (or the authority of the general partners to act for it) prior to the “judgment of termination,” C.C. 2826. A contrary ruling would give to every partner in commendam the power to prevent the sole general partner from acting, by simply filing a suit and a lis pendens notice.

The notice of lis pendens statute, now C.C.P. 3751-3753, is basically negative: the mere pendency of an action asserting some interest in an immovable “does not constitute notice” to'third persons, art. 3751, unless notice thereof is recorded in the mortgage records. Recorded notice thus notifies third persons only of the pendency of the claim, and, in a case in which notice is necessary in order to preserve the claim as against third persons, the recorded notice preserves the claim.

But only claims directly affecting the property can fairly be allowed to be recorded as a quasi-encumbrance against the title. All of a debtor’s property is liable for his debts, C.C. 3182-3183, yet not every claim asserts an interest in specific property. A claim on a simple loan of money might result in a money judgment which, once itself recorded in the mortgage records, could thereafter create a judicial mortgage effective against third persons, C.C. 3321, 3329. Yet the notice of lis pen-dens statute does not permit a creditor who claims only an ordinary debt to tie up the debtor’s property by claiming, prior to judgment, that the creditor will, after judgment, record the judgment and thus then have a judicial mortgage affecting the debtor’s property.

The claim of the minority in com-mendam partners here is not a claim directly affecting the partnership property. Even if they are successful in their action to terminate the partnership, the partnership will remain the owner of the property until the partnership is fully liquidated, as noted above. These partners’ action is therefore not of the kind allowed to encumber the partnership’s clear title to its property, nor the general partner’s authority to act for the partnership, prior to the court’s judgment upon the merits of the action.

The recorded notice of lis pendens was therefore properly ordered erased from the mortgage records.

Affirmed.

      . But see Bunch v. Quinn-L B.R. Partnership, 424 So.2d 1210 (La.App. 1 Cir.1982), for the view that just cause ordinarily authorizes withdrawal rather than dissolution.


author: GULOTTA, Judge.

text:
    AUDUBON INSURANCE COMPANY v. STATE FARM MUTUAL INSURANCE COMPANY and Jefferson Insurance Company of New York.
    No. CA-0136.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1983.

      Michael K. Springmann, Dillon & Cam-bre, New Orleans, for appellant.
    Melvin W. Mathes, A.J. Schmitt, III, Beard, Blue, Schmitt, Mathes, Koch & Williams, New Orleans, for appellee.
    John Robert Sarpy, Porteous, Toledano, Hainkel & Johnson, New Orleans, for appel-lee.
    Before GULOTTA and BYRNES, JJ, and G. WILLIAM SWIFT, Jr., J. Pro Tern.
   GULOTTA, Judge.

Audubon Insurance Company (Audubon) appeals from the dismissal of its claim in subrogation for reimbursement of policy benefits paid to its insured for fire loss. We affirm.

On December 3, 1979, a fire damaged a dwelling owned by Mr. and Mrs. Patrick Adams, Sr. and occupied by their son Patrick Adams, Jr. Audubon, the homeowner’s insurer of the dwelling, paid the policy limits of $24,000.00 to the owners for the loss, and thereafter filed the instant suit against State Farm Mutual Insurance Company and Jefferson Insurance Company of New York, the liability insurers of Adams, Jr., alleging that Adams, Jr.’s negligence had caused the fire. The judge dismissed Audubon’s suit, based on findings that the cause of the fire was undetermined and that no proof of Adams, Jr.’s negligence had been established.

Appealing, Audubon complains the trial judge erred in failing: 1) to admit the opinion testimony of a fireman concerning the cause of the fire; 2) to conclude Audubon had met its burden of proving Adams, Jr.’s negligence; and 3) to apply the doctrine of res ipsa loquitur.

EXPERT TESTIMONY

Audubon sought to elicit opinion evidence from Donald E. Drewes, a captain in the St. Bernard Fire Department. Although permitting this witness to testify factually regarding his response to the fire alarm and his observations of the scene, the trial judge sustained defense objections (made on three separate occasions) to opinion testimony on the cause and origin of fires.

Despite Drewes’ six years experience as a fireman — including limited on-the-scene investigation of fire origins and attendance at brief seminars on “fire technology” — he had the benefit of a high school education, had not undergone any formal courses or tests in fire origins, and had never testified as an expert witness.

Recognizing that acceptance of expert witnesses is a matter within the sound discretion of the trial judge, Catalanotto v. Hebert, 347 So.2d 301 (La.App. 4th Cir.1977), we find no abuse in this instance.

SUFFICIENCY OF EVIDENCE

The circumstances surrounding the fire, as set forth in the trial judge’s well-written “Reasons for Judgment”, in pertinent part, are as follows:

“On the date in question, Patrick Adams, Jr. came home from work between 5:30 and 6:00 p.m., and as he did on a daily basis, he drove his motorcycle into the garage and locked the garage door. At approximately 8:00 p.m., fire erupted in the garage causing extensive damage to the home....
As per testimony of Patrick Adams, Jr., it was determined that his usual procedure was to park the motorcycle in the garage, and that the owner of the home, his parents, were well aware of this matter and had no objection thereto. He further contends that he was not negligent in any manner whatsoever. That after parking the motorcycle in the garage on this particular date, he turned off the fuel valve and went inside and did not know that anything was wrong until 8:00 p.m. when he heard an explosion and fire erupted in the garage, and he and his family had to flee for their lives.
The court heard expert testimony from Harold Meyers who qualified as an expert in the field of mechanical engineering with a special expertise in the origin and causes of fires. Mr. Meyers testified that he did an investigation of the fire cn December 3, 1979. He did not find any problems with any of the appliances and saw nothing that was defective. He came to a conclusion as to the origin of the fire, but indicated that he had no specific evidence to back up his conclusion. Mr. Meyers testified that what probably happened was that there was a fuel leak in the bike and that the bike was parked within a short distance of the freezer. Mr. Meyers testified that it was more probable than not that fuel leak from the bike was the cause of the fire. However, he could not testify whether or not the fuel valve was left open or was opened at the time of the fire, and that he based his conclusion on what was told to him, but that he could not give his opinion as to what really did cause the fire.
Based on the testimony of Mr. Meyers and the testimony of the other witnesses, the court could not determine the cause of the fire, and the court did not find that any proof of negligence was found on the part of Patrick Adams, Jr. Mr. Meyers spoke about the possibility of a flash-back fire caused by the interaction from the fuel from the motorcycle which was apparently four feet away from the freezer in the garage, but again, could not establish the cause of the fire, therefore, the court denied the request of Audubon Insurance Company and ruled for the two defendants.”

Relying on expert Meyers’ testimony that the fire was caused by leaking motorcycle fuel ignited by an electrical spark in the nearby freezer, plaintiff contends it satisfied its burden of proving Adams, Jr.’s negligence through circumstantial evidence. We disagree.

Adams, Jr. testified that during the daily operation of his motorcycle for seven months prior to the fire he had never noticed any fuel leaks. Upon parking his motorcycle in the garage at 6:00 p.m. on the night of the fire, he stated he had turned the gas valve to the “off” position. About an hour before the fire, he had gone to the utility room in the garage and had not noticed the odor of any vapors or gasoline. Furthermore, after the explosion and while the fire was in progress before he evacuated, he saw fire in the roof and two walls of the garage but no flames on the motorcycle itself or any indication that fire “was shooting back” to it. Adams, Jr. further testified that the fuel valve was “closed” and “still operable” after the fire.

Although Meyers’ testimony is supportive of Audubon’s claim, his theory of the origin of the fire presupposes that the fuel valve was left open by Adams, Jr. or that there existed a fuel leak.

The value of an expert witness’ opinion depends on the existence of facts on which it is predicated. State, Dept. of Highways v. Beaird-Poulan, Inc., 292 So.2d 842 (La.App. 2nd Cir.1974), amended and affirmed, 305 So.2d 505 (La.1975). For an expert opinion to be valid and to merit much weight, the facts on which it is based must be substantiated by the record. Prejean v. Trinity Universal Insurance Company, 210 So.2d 395 (La.App. 3rd Cir.1968), writ refused 252 La. 476, 211 So.2d 334 (1968).

On the basis of Adams, Jr.’s testimony, the trial judge apparently concluded that Adams, Jr. closed the fuel valve when he parked the motorcycle. Having so concluded, he undoubtedly gave little weight to Meyers’ opinion of the origin of the fire. Indeed, this expert testified that if the valve of the fuel tank had been in an “off” position at the time of the fire, he “wouldn’t know what started the fire.”

The evidence considered, we find no error in the trial judge’s conclusion.

RES IPSA LOQUITUR

We likewise reject Audubon’s argument concerning the failure of the trial judge to apply res ipsa loquitur.

This doctrine is merely an eviden-tiary rule creating an inference of negligence. Walter v. Union Oil Mill, Inc., 369 So.2d 1043 (La.1979). If the doctrine is applicable and the evidence inferentially suggests the defendant’s negligence as a more plausible explanation, the burden of proof shifts to the defendant to show freedom from negligence. Bay v. Ameri-Care Hospital, 400 So.2d 1127 (La.App. 1st Cir.1981), writ denied, 404 So.2d 277 (La.1981).

Assuming Meyers’ theory of the origin of the fire raised an inference of Adams, Jr.’s negligence, this inference was overcome by Adams, Jr.’s testimony that he closed the fuel valve on the motorcycle, which was accepted by the trial judge. Based on this credibility determination, we find no error.

The judgment is affirmed.

AFFIRMED.


author: SCHOTT, Judge.

text:
    Jay M. LeBLANG v. OFFICE OF EMPLOYMENT SECURITY, The Department of Labor of the State of Louisiana, and Edward Levy Metals, Inc.
    No. CA 0109.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1983.

      Donald R. Mintz, Constance Charles Wil-lems, Ellis B. Murov, McGlinchey, Stafford, Mintz & Cellini, New Orleans, for defendant-appellee Edward Levy Metals, Inc.
    W.C. Thompson, Jr., Robert A. Redwine, Sessions, Fishman, Rosenson, Boisfontaine & Nathan, New Orleans, for plaintiff-appellant.
    Before SCHOTT, CIACCIO and WILLIAMS, JJ.
   SCHOTT, Judge.

This is an appeal by plaintiff, Jay M. LeBlang, from a judgment of the District Court affirming the decision of the Board of Review for the Office of Employment Security, disqualifying him from unemployment benefits. In this court, plaintiff raises the issues that he was denied due process because the notice from the Appeals Referee of the reason for his discharge was not adequate and that the findings of fact by the Referee, the Board of Review, and the District Court, are not supported by the record.

Plaintiff was employed as Executive Vice President of Edward Levy Metals, Inc., on April 1, 1979 and he was discharged on January 28, 1980. He applied for unemployment compensation benefits, alleging in his application that his job had been abolished. The employer responded to the notice of plaintiff’s claim with a letter in which it detailed its reasons for discharging plaintiff. These included plaintiff’s refusal to submit to a medical examination following his employment, his insubordination to executive personnel by directing foul language toward the president, abuse of his expense account, actively planning his own scrap metal business to compete with his employer while he was still on the job and attempting to enlist other executive personnel of the employer in this undertaking; and making a sale of some $100,000 of scrap metal in direct disobedience of the order of the company’s board chairman and senior official. After an initial agency determination that he was eligible for benefits the employer appealed and the case was heard before an Appeals Referee on May 13 and May 22, 1980. The referee disqualified him for benefits because of misconduct connected with his employment pursuant to LSA-R.S. 23:1601(2). In his decision the referee found that plaintiff’s misconduct consisted of failing to take the physical examination, directing vulgar language to the company’s president, disobeying the orders of the company’s board chairman by making the large sale without the chairman’s approval, making plans on company time to open a competitive business and discussing these plans with his fellow executive co-workers. Plaintiff next appealed to the Board of Review, and on July 11, 1980, the Board affirmed the referee’s decision. Plaintiff next appealed to the district court for judicial review.

The district court initially remanded the case to the Board of Review because its decision of July 11 had been made without the benefit of a transcript of the testimony taken before the referee. The order remanding the case specifically granted to the parties the right to take additional evidence. Upon receiving this order of remand the Board of Review requested another hearing before the Appeals referee. This was scheduled for June 8,1981, but on June 4, 1981, plaintiff’s attorney notified the Board of Review that he did not have any additional evidence and would submit the case on the evidence previously taken. The transcript of the testimony of the first hearing was filed and on September 17, the Board of Review reaffirmed the decision of the referee disqualifying plaintiff from benefits. The Board found that plaintiff had abused his expense account, actively attempted to set up a competitive business and solicited other employees to join in this venture while on the employer’s payroll, failed to take his physical examination, and disobeyed his superior’s direct order by proceeding with the large sale.

The district court gave the following succinct reasons for judgment:

“This court finds that the Board complied with the law in reviewing the testimony and evidence which support the finding that Jay M. LeBlang was lawfully discharged for misconduct connected with employment within the meaning of La. R.S. 23:1601(2).
The facts show that petitioner demonstrated “misconduct” by disregarding standards of behavior which his employer had the right to expect of him. Dorsey v. Administrator La. Dept. of Employment Sec. App. [La.App.1977], 353 So.2d 363.”

Plaintiffs first argument is that he was deprived of procedural due process because of the inadequacy of the notice from the Appeals Referee. That notice contained the following as the grounds for disqualification:

“The claimant was discharged from employment because of indifference and/or bad attitude toward the employment. The discharge was for misconduct connected with the work.”

In Banks v. Administrator of Dept. of Employment, 393 So.2d 696 (La.1981) the court found that an employee was deprived of her rights to a fair hearing where the discharge contained in the notice of hearing by the Appeals Referee did not correspond with the reasons why the board upheld her dismissal and disqualification for benefits. We followed this case and reached the same conclusion as to inadequacy of notice in Beverly v. Sumrall, 408 So.2d 14 (La.App. 4th Cir.1981). Both of these cases may be distinguished on the ground that they involved notices from the appeals tribunal .setting forth acts of misconduct, which were different than the acts which were proved at the hearing and provided the referees with the bases to conclude that the employees were discharged for misconduct. In other words, the employees in the cited cases attended the hearings and prepared to defend against notices of charges which proved to be different than the charges which the referees found supported their dismissals. In the instant case, the notice may be vague or general but it is not in conflict with the acts of misconduct found to justify plaintiff’s termination. However, we do not decide the case on this ground.

By the time plaintiff attended the hearing before the referee May 13, 1980, and had the notice from the referee which he questions, he also had the benefit of the letter the employer had written to the agency on May 20 in which specific acts of misconduct were detailed. He attended the hearing with counsel who actively participated, examining and cross-examining all witnesses. At the conclusion of the second day of the hearings on May 22 plaintiff declined although given the opportunity to present further evidence in his behalf. After the case was remanded by the district court to the Board of Review the matter was sent by the Board back to the referee with instructions to permit plaintiff to introduce any evidence he wished to present. He declined to offer any additional evidence. Thus, plaintiff had an overabundance of due process in this case. He was not misled by the original notice from the referee and knew well in advance of each hearing exactly what charges were made against him. This portion of his argument clearly lacks merit.

Plaintiff’s other argument is that the evidence does not support the conclusions of the appeals referee, the Board of Review, and the district court that plaintiff was guilty of employment connected misconduct such as to warrant disqualification for benefits under R.S. 23:1601(2). There is evidence in the form of testimony which was apparently believed by the referee in contradiction to plaintiff’s testimony that he was insubordinate toward and disobedient to his superiors in the company, he abused his expense account, and he was engaged while on his employer’s payroll in actively planning to start a business of his own in competition with the employer. With respect to the findings of the referee, the Board and the district court, plaintiff points to some minor discrepancies such as the Board of Review’s finding that plaintiff used vulgarity toward the company’s Board Chairman when in fact it was toward the company’s President, and the referee’s finding that plaintiff had made derogatory statements about the company’s Board Chairman where no evidence supported this finding. However, these minor discrepancies do not substantially detract from the evidence which supports the conclusions of the referee, the Board and the district court.

In reaching our conclusion, we are persuaded by the peculiar facts of this case. Plaintiff was employed as a top executive at an annual salary of $60,000 with the possibility of bonuses in addition. He was provided with a luxury automobile and a generous expense allowance. During the last two months of his employment he was actively planning to start his own business in competition with his employer and was trying to recruit one of his fellow executives for his new business. When he was caught he was fired. Even aside from the other acts of proven misconduct which have been discussed such disloyalty standing alone would seem to constitute misconduct under R.S. 23:1601(2) which disqualifies him from unemployment benefits.

Accordingly, the judgment is affirmed.

AFFIRMED.


text:
    Oliver P. SCHULINGKAMP v. The BOARD OF LEVEE COMMISSIONERS OF the ORLEANS LEVEE DISTRICT, et al.
    No. CA 0124.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1983.
    Richard J. McGinity, McGinity & McGinity, New Orleans, for defendant-appellant Bd. of Levee Com’rs.
    James L. Bates, Jr., New Orleans, for defendant-appellant Osmond J. Young.
    Paul A. Bonin and Carla A. Failla, New Orleans, for plaintiff-appellee.
    Before SCHOTT, CIACCIO and WILLIAMS, JJ.
   SCHOTT, Judge.

Defendants, Osmond J. Young, and the Board of Levee Commissioners of the Orleans Levee District, have appealed from a judgment in favor of plaintiff, Oliver P. Schulingkamp, for $7500, based on the diminution of the value of plaintiff’s property as a result of the construction of a building by Young on the neighboring property. The issue is whether there is any legal basis for the award under LSA C.C. Art. 667 or 2315.

The subject property is owned by the Levee Board and is located on Lake Pontchartrain at West End in the City of New Orleans. In 1973 plaintiff purchased the leasehold rights to a boat slip and a boathouse from a previous tenant of the Levee Board for $14,000. Under his lease, he was obligated to pay $500 per year rent to the Board. About two years later plaintiff received a notice from the Levee Board that it was removing a restriction against using the facility as a domicile and plaintiff’s lease was amended accordingly. Plaintiff converted the boathouse into an apartment for his residence at an expense of $45,000. Under the terms, of the lease it was necessary for him to obtain the permission of the Levee Board to construct these improvements and such permission was obtained.

In the meantime, the lessee of the adjoining property, Osmond J. Young, had been operating a business of boat sales and boat repairs on his site since 1959. In March, 1978, pursuant to permission by the Levee Board he began to construct a 2-story building on his property. Its location would be, and now is, some 34 feet from the balcony of plaintiff’s building, so that plaintiff now has a view of the wall of the building instead of the oak trees and park he could formerly view. Both of the properties are zoned light industrial and Young’s building conforms to the zoning.

Plaintiff sought a preliminary injunction to prohibit the construction of the building when Young first began, but the trial court denied this injunction stating that Young had a right to construct his building and plaintiff constructed his own residence in this commercial area at his own peril. However, after the building was completed the court awarded plaintiff damages against Young based on C.C. Art. 667. The Levee Board was also cast in judgment on the basis that it violated some duty to warn plaintiff that Young was planning to construct the building when plaintiff applied for permission to build his residence.

Art. 667 does not support the judgment against Young. Unless Young’s use of his property constituted ultra hazardous activity it was incumbent upon plaintiff to prove negligence on Young’s part in order to recover. Charia v. Stanley, 359 So.2d 291 (La.App. 4th Cir.1978). Plaintiff proved neither of these elements. Furthermore, a reading of Art. 668 with 667 clearly precludes plaintiff from recovery under the circumstances of this case. Those articles provide as follows:

“Art. 667. Limitations on use of property-
Although a proprietor may do with his estate whatever he pleases, still he can not make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.”
“Art. 668. Inconvenience to neighbor. Although one be not at liberty to make any work by which his neighbor’s building may be damaged, yet every one has the liberty of doing on his own ground whatsoever he pleases, although it should occasion some inconvenience to his neighbor.
Thus he who is not subject to any servitude originating from a particular agreement in that respect, may raise his house as high as he pleases, although by such elevation he should darken the lights of his neighbors’s [neighbor’s] house because this act occasions only an inconvenience, but not a real damage.”

The damage occasioned to plaintiff’s property was precisely the loss of the view over the park resulting from the construction of Young’s building. While the trial judge attempted to isolate plaintiff’s damages as a reduction in the resale value of his property, aside from the mere inconvenience of losing his view as a result of Young’s work, the testimony of plaintiff’s realtor at the hearing on the injunction was to the effect that only the asthetic value of plaintiff’s house was diminished and he equated that loss with the loss of the view from plaintiff’s balcony.

As to the Levee Board, the trial court found that it breached some duty to warn plaintiff when he began construction of his residence that Young was planning to construct a building on his property. The flaw in this theory is that the Levee Board had no such duty. As previously stated this property was zoned light industrial and Young had a perfect right to use his property in conformity with that zoning. The record shows that Young had spoken to someone with the Levee Board and advised that he intended to demolish an old building which was on the site and construct a new one and that this conversation took place before plaintiff applied for permission to build his residence. This hardly translates into a duty on the Board to recall and report to plaintiff what might be contemplated by Young at some future date. Furthermore, if any duty existed it was upon plaintiff to ascertain the zoning of the property and to determine what might be constructed by his neighbor at some future date before he constructed his own improvements. He testified that he had no guarantee whatsoever from the Board that there would be no commercial construction on Young’s property but he “assumed” that there would not be. Plaintiff was aware long before he built his own improvements that commercial activity was going on in the neighboring property, including boat sales and repairs consisting of painting, sanding and welding activities. Thus, there was no reasonable basis for his assumption.

Plaintiff argues that the Levee Board as the common lessor of both tenants had some sort of a special duty to protect him from making improvements which might be inconsistent with objectionable future improvements on neighboring property. Plaintiff pays the Levee Board $500 a year and gets exactly what is bargained for under the lease, namely, the water bottoms for use as a marine facility. The Levee Board guaranteed plaintiff peaceable possession of the premises but it had no duty to advise him as to what uses of neighboring property are permitted under the light industrial zoning which prevails. Although the lease required plaintiff to get the Board’s approval in advance of improvements being made to the property, we cannot draw the slightest inference or insinuation from this provision that the Board was obliged to warn plaintiff of possible construction on the neighbor’s property, knowledge of which was charged to plaintiff in the first instance. Finally, it is significant that the zoning ordinance of the City of New Orleans prohibited plaintiff from constructing his residence in this light industrial area. An official of the City explained that the City does not enforce this provision but simply defers the matter to the Levee Board. Nonetheless, this prohibition in the zoning ordinance was still another caveat which plaintiff ignored when he constructed his residence. No legal principle gives him the right to recover from the Levee Board or anyone else for his own decision to proceed with his construction under these circumstances.

Accordingly, the judgment appealed from is reversed and set aside and there is judgment in favor of defendants, Osmond J. Young and the Board of Levee Commissioners of the Orleans Levee District, and against plaintiff, Oliver P. Schulingkamp, dismissing his petition at his cost.

REVERSED AND RENDERED.


author: SCHOTT, Judge. REDMANN, Chief Judge,

text:
    Anthony J. GERACI v. SOUTHERN SCRAP MATERIAL CO., LTD., et al.
    No. 13232.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1983.
    Jack C. Benjamin, Kierr, Gainsburgh, Benjamin, Fallon & Lewis, New Orleans, for appellee The North-West Ins. Co.
    Mark J. Spansel, New Orleans, for plaintiff-appellee.
    Emile L. Turner, Jr., Turner & Young, New Orleans, for defendants-appellants.
    Before REDMANN, C.J., and GULOTTA, SCHOTT, BYRNES and LOBRANO, JJ.
   SCHOTT, Judge.

This case arose out of an accident on April 11, 1977, between a pickup truck owned and operated by plaintiff, Anthony J. Geraci, and a tractor and trailer operated by Osborne Nix, Jr., an employee of defendant, Southern Scrap Material Company, Ltd. The tractor driven by Nix was leased by Southern Scrap from Hertz Corporation, while the trailer was owned by Southern Scrap and insured by North-West Insurance Company. Plaintiff was awarded a judgment of $17,500 against Southern Scrap and Hertz. A third party demand by Hertz against North-West for contribution was dismissed. Hertz and Southern Scrap have appealed and plaintiff has answered the appeal seeking an increase in the amount of judgment. The principal issue on appeal aside from liability and quantum is entitlement by Hertz as the insurer of the tractor and its driver to a contribution by NorthWest as the insurer of the trailer considering the provisions of the Hertz rental agreement and the North-West insurance policy.

Plaintiff was operating his pickup truck at about 3 PM on a clear day on the Airline Highway access ramp into the east bound side of Interstate Highway 10 in New Orleans. This ramp consisted of two lanes which were separated from the Interstate Highway lanes by a barrier and which then merged into the expressway lanes beginning at a point where the barrier ended. Plaintiff approached the Interstate lanes in the left lane of the access ramp and upon passing the end of the barricade on his left an automobile traveling along the expressway veered to the right forcing plaintiff to apply his brakes, reducing his speed, and to move over into the right lane. At this time defendant’s vehicle ran into the rear end of plaintiff’s truck.

On the question of liability, defendants contend that they rebutted the presumption of negligence created by their rear ending plaintiff by showing that the true cause of the accident was a sudden emergency created by the unknown vehicle cutting in front of plaintiff. Defendants also argue that plaintiff was guilty of contributory negligence in failing to see the unknown vehicle sooner so that he could have reacted more slowly and carefully to the situation and prevented a hazard which led to an unavoidable accident by Nix. In support of these contentions Hertz produced a witness whom the trial judge accepted as an expert in “accident analysis” and who was allowed to testify, based on measurements he took at the scene and his reading of the deposition of plaintiff and the police report, that plaintiff was “inattentive” in failing to see the unknown vehicle sooner than he did.

We do not have the benefit of the trial judge’s reasons but he apparently reached the factual conclusion that defendants did not carry their burden to exculpate themselves from presumed liability for running into the rear of plaintiff’s truck. Defendants were unable to produce their truck driver and were forced to rely almost exclusively on their expert’s testimony. We are not impressed with that testimony and cannot conclude that the trial judge committed manifest error in his conclusions as to the liability of defendants and their failure to prove contributory negligence on plaintiff’s part. Canter v. Koehring Co., 283 So.2d 716 (1973) and Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Jones v. Meinke, 357 So.2d 838 (La.App. 4th Cir.1978) cited by defendants on the issue of liability is unpersuasive. First, it was established in the case that the accident occurred because an unknown person threw a rock which struck the windshield of the following car preventing its driver from seeing ahead of her. More important for our purposes on appeal, however, the trial court had found in favor of the following driver and this court affirmed citing the manifest error rule and Canter v. Koehring Co., supra. The same appellate reasoning applies here.

As to quantum, plaintiff was able to drive his truck away from the scene of the accident but sought' emergency medical treatment later in that day at a local hospital. He was treated by an orthopedic surgeon between June 15 and August 24, 1977, a chiropractor between August 30 and. October 19, 1977, and began seeing another orthopedist, Dr. Raymond Kitziger, in February, 1978. Dr. Kitziger diagnosed a chronic lumbosacral condition superimposed on a pre-existing arthritic condition aggravated by plaintiff’s obesity. He treated plaintiff for his injuries intermittently over the next two and a half years and concluded that plaintiff had a 5% disability of his back as a result of the accident. Plaintiff took pain medications throughout this period of time, wore a corset for a while and even underwent a myelogram in April, 1980, upon the recommendation of Dr. Kitziger. He was still suffering residuals from this accident at the date of the trial in January, 1981, almost four years after the accident. On the other hand, some of plaintiff’s difficulty was undoubtedly caused by his pre-existing condition and the evidence showed that he was in a subsequent accident in October, 1980, which contributed to his problems. Plaintiff’s evidence on loss of earnings was sketchy. He was not employed on the date of the accident, but shortly after the accident he took a job with a linen service, worked there for several months, but gave it up because of his back problem. The judgment of the trial court included all special damages including medical expenses and loss of earnings. While arguments can be advanced on both sides that the award should have been lower or higher, we cannot conclude that the trial judge abused his great discretion in making the lump sum award of $17,500. Reck v. Stevens, 373 So.2d 498 (La.1979).

The most important issue in this case is presented by the third party demand of Hertz against North-West Insurance Company. Hertz leased the tractor to Southern Scrap pursuant to a written contract which provided as follows:

“Lessor provides liability coverage for Customer and any authorized operator, and no others, subject to the limitations of paragraphs 4 and 6(a) on page 2 and the paragraphs directly above the signature line on page 1 (and not otherwise) in accordance with the standard provisions of a Basic Automobile Liability Policy under a policy of insurance or as a qualified self-insurer against liability arising from the use of the Vehicle with limits as follows: IF A TRUCK, $10,000 each person, $20,000 each accident for bodily injury, including death, and $5,000 each accident for property damage or with limits of liability up to the requirements of the Financial Responsibility Law or other applicable statute of the state or other jurisdiction in which the accident occurred, whichever is greater; IF A TRACTOR $100,000 each person, $300,000 each accident for bodily injury including death, and $25,000 each accident for property damage; IF A TRAILER, NO COVERAGE. Coverage hereunder shall automatically conform to the requirements of any “No Fault” Law which may be applicable. In the event that coverage is imposed, by operation of law, to the benefit of any person other than Customer or any authorized operator described herein, then the limits of such coverage shall be the minimum requirements of the Financial Responsibility Law or other applicable statute of the state or other jurisdiction in which the accident occurred. A specimen copy of a Basic Automobile Liability Policy is available for inspection at the main office of Lessor. Lessor warrants that, to the extent permitted by Law, the coverage for the rented truck or tractor is primary as respects any other insurance available to Customer or other authorized operator as defined in this Agreement.”

Under the North-West policy Southern Scrap retained individual liability for each occurrence up to $25,000, so that it was self-insured to that extent. It provided for a loss fund which would cover the insured’s retained liability and would serve as security to North-West for the purpose of indemnifying it for its liability to third-parties up to $25,000. The policy contains the following pertinent provisions:

“6. Other Insurance: The insurance afforded by this policy is primary insurance, except when stated to apply in excess of or contingent upon the absence of other insurance. When this insurance is primary and the insured has other insurance which is stated to be applicable to the loss on an excess or contingent basis, the amount of the company’s liability under this policy shall not be reduced by the existence of such other insurance.
When both this insurance and other insurance apply to the loss on the same basis, whether primary, excess or contingent, the company shall not be liable under this policy for a greater proportion of the loss than that stated in the applicable contribution provision below;”

“VI. ADDITIONAL CONDITION

Excess Insurance — Hired and Non-owned Automobiles

With respect to a hired automobile or a non-owned automobile, this insurance shall be excess insurance over any other valid and collectible insurance available to the insured.”

Hertz contends that it and North-West are co-primary insurers and the loss should be pro-rated at for North-West to one part for Hertz based on the limits of coverage of $250,000 and $100,000 respectively. Hertz relies on Aetna Cas. & Sur. Co. v. Hertz Corp., 366 So.2d 1362 (La.1978) in support of this contention, making the following argument:

“Applying the facts of this case to Aetna v. Hertz, the situations are identical. Hertz under its rental contract affords coverage for its tractor alone and NorthWest affords primary coverage for the trailer alone. Once you couple these two movables together, they become united and as such the'primary excess clauses are mutually repugnant and thereby cancel one another; ergo, co-primary insurers.”

On the other hand, North-West makes the following arguments: 1) the coverage afforded by Hertz under its agreement is the sole primary coverage obligating it to bear responsibility for payment up to $100,-000; 2) alternatively, the $25,000 self insurance retention by its insured could be considered the primary layer of insurance along with the Hertz coverage, so that the liability of its insured, Southern Scrap, should be no greater than 20% of the total primary coverage available in the amount of $125,000; 3) its insurance should be considered only excess insurance; and 4) Aetna Cas. & Sur. Co. v. Hertz Corp., supra, cannot be applied retroactively to the facts of this case.

In Aetna Cas. & Sur. Co. v. Hertz Corp., supra, the court was confronted with the following question certified to it by the United States Court of Appeals:

“2. If the insurance agreement covering the tractor (rented by the driver’s employer) does not exclude the driver, whether that policy is co-primary with an insurance agreement covering the attached trailer (owned by the employer), when:
(a) the trailer policy provides only excess coverage when the ‘automobile’ is not owned by the employer and the sole proximate cause of the accident was found to be the driver’s negligence in the vehicle’s operation; and
(b) the agreement insuring the tractor provides for coverage primary ‘as respects any other insurance available,’ the trailer policy does not contain the same language, and while both policies contain proration clauses, the trialer proration clause takes effect only when other insurance applies on the same basis, [footnote omitted] 573 F.2d 306 (5th Cir.1978).”

The court answered this question to the effect that both Aetna and Hertz provided primary insurance in the case so that the loss should be pro-rated between the companies. It held that the provision in the Aet-na policy that its insurance shall be excess with respect to a hired or non-owned automobile was inapplicable because the tractor and trailer became one vehicle for the transportation of cargo, with the result that it was partially owned by Aetna’s insured at the time of the accident.

In support of its first contention NorthWest relies on the concluding sentence of the paragraph of the Hertz rental agreement quoted above that its coverage on the tractor “is primary as respects any other insurance available to Customer or other authorized operator as defined in this agreement.!’ However, there is no discernible difference between this language and that partially quoted in the Aetna case in this context:

“the agreement insuring the tractor provides for coverage primary, ‘as respects any other insurance available,’ .”

The Supreme Court had no difficulty concluding that both Hertz and Aetna provided primary insurance despite the language of the rental agreement.

Next, North-West points to a provision in the rental agreement which says that “the customer agrees to indemnify and hold Hertz harmless from and against all loss, liability and expense, but only for such loss in excess of the Hertz coverage.” We fail to see how this language can provide NorthWest with any comfort since the Supreme Court held without equivocation that the Hertz coverage was not primary as to Aet-na’s but, rather, co-primary with it.

North-West also relies on the language of its policy quoted above that its insurance was excess since the Hertz tractor was “a hired automobile or a non-owned automobile.” But this language is identical to that contained in the Aetna policy and which the Supreme Court construed as inapplicable based on the reasoning that once the tractor and trailer were joined as a unit they became an “automobile” partially owned by Aetna.

Finally, North-West contends that the $25,000 loss fund — liability retention provisions of the policy supports a different result than that of the Aetna case. It argues that Southern Scrap was self insured up to $25,000 with the result that the Hertz coverage was the only primary insurer and that it (North-West) can only be an excess insurer over $25,000 of exposure. Alternatively, North-West contends that Southern Scrap as a self insurer provides $25,000 of primary coverage to be pro-rated with Hertz’ $100,000 of coverage with the result that Southern Scrap would pay 20% of plaintiff’s judgment.

The fallacy of this argument is its failure to recognize the true relationship between North-West and Southern Scrap. The policy is a standard automobile liability policy in which North-West agrees to pay on behalf of its insured any sums which the insured becomes obliged to pay. Third parties who suffer damages as a result of the negligence of Southern Scrap may proceed against North-West without regard to the $25,000 liability retention provisions and need not even join Southern Scrap. LSA-R.S. 22:655. The loss fund provisions of the policy recognize this precisely by including the following in its statement of purpose:

“(B) As security to the Company for the purposes of indemnifying the company for that portion of claims and expenses for which the company would be liable directly to claimants or other third parties but falling into that part of the liability retained by the insured.”

Thus, as to third parties North-West is a typical insurer and in this sense Southern Scrap is not self insured. Consequently North-West is co-primary insurer with Hertz as to plaintiff’s claim.

Furthermore, North-West’s exposure to third parties such as plaintiff is up to $250,-000 so that the correct proration between Hertz and it is one part to two and one-half parts.

We recognize that the end result of this decision may be to make Southern Scrap liable for $12,500 of plaintiff’s $17,500 recovery but this is so not because Southern Scrap is a self insurer, but because of its contract with its insurer. Hertz is legally entitled to proration against North-West. What happens thereafter is an internal affair between insurer and insured. The underlying purpose of the loss fund provisions is not to make Southern Scrap a self insurer but to reduce premiums on an overall basis. Presumably, it is more economical for Southern Scrap to pay the first $25,000 of each loss than to pay increased premiums for the added coverage if the loss fund provisions were not incorporated in the policy-

It follows from the foregoing discussion that North-West’s third argument is without merit. It is not an excess insurer as regards plaintiff or Hertz just as Aetna was not an excess insurer in Hertz v. Aetna, supra.

Finally, North-West argues that the Aetna case cannot be applied retroactively to the facts of this case because its policy was written in 1976, the accident occurred in 1977, and the Aetna case was decided in 1978, since to do so would impair its contractual rights. In support of this position North-West cites Chevron Oil Company v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1977) and a number of cases cited therein. The court in the Chevron case discussed the factors to be considered in dealing with the nonretroactivity question and these factors do not seem to have application to the case at hand. For the most part, the doctrine is applied where a court overrules a prior decision which theretofore had been the law and was relied on by a party seeking to avoid retroactivity. In Hertz v. Aetna, supra, the court merely interpreted the language of a rental contract and an insurance policy to determine the relative rights and obligations of the parties to those contracts. We are deciding simply that the documents involved in this case have the same meaning as the court said they had in Aetna. To agree with North-West on this point would be to reach the incongruous result of telling Hertz it was right all along in its interpretation but we must decide against it because NorthWest didn’t realize Hertz’s position was correct.

In the Aetna case, both policies were said to contain proration clauses. In this case the Hertz rental agreement obligates it to provide coverage “in accordance with the standard provisions of a Basic Automobile Liability Policy” and it professes to have a “specimen copy” of such policy available for inspection. Unfortunately, such specimen was not placed in evidence by Hertz so the record does not establish that the Hertz policy contains the standard proration clause. Under these circumstances where the failure to introduce the specimen policy appears to be a technical omission on the part of Hertz as opposed to a substantial failure in the carrying of its burden of proof a remand is warranted by C.C.P. Art. 2164 in order to prevent a miscarriage of justice. Therefore, we remand the ease to the trial court in order to provide Hertz with the opportunity of placing in evidence the specimen copy of the insurance policy referred to in the rental agreement.

Accordingly, the judgment on the main demand is affirmed. The judgment on the third party demand is reversed and the case is remanded to the trial court for the purpose discussed above. Assessment of costs will await the final outcome of the case.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

REDMANN, C.J., dissents.

REDMANN, Chief Judge,

dissenting.

The Hertz rental agreement provides: Lessor warrants that, to the extent permitted by law, the [liability insurance] coverage for the rented truck or tractor is primary as respects any other insurance available to Customer [Southern Scrap] or other authorized operator as defined in this Agreement. [Bracketed words and emphasis supplied.]

Hertz’s position is that the insurance that North-West provided on the trailer also declares itself primary and is therefore co-primary. This position might be correct as to damages in excess of $25,000, but the damages here are only $17,500. North-West does not insure Southern Scrap against liability for the first $25,000 of damages in any accident.

It may well be true that a third person could by direct action recover against North-West for damages less than $25,000, but North-West would pay those damages out of Southern Scrap’s money. And another third person might recover a second judgment against North-West before Southern Scrap replenished its $25,000 retained . liability deposit and North-West’s own funds would be subject to execution: but North-West would recover from Southern Scrap because their contract provides that Southern Scrap retains the first $25,-000 of liability.

North-West simply does not insure Southern Scrap against liability for the first $25,-000. North-West has not by its contract undertaken the risk for that first $25,000 of liability or “undertake[n] to indemnify,” R.S. 22:5(1), Southern Scrap against that liability.

Because North-West does not afford, within the first $25,000, “any other insurance available to Customer,” in the words of Hertz’s rental agreement, Hertz’s insurance is not merely primary but the only insurance against Southern Scrap’s liability.

The judgment dismissing the third-party demand against North-West should be affirmed.


author: BARRY, Judge.

text:
    Girard Lynn PIERCE v. Donald Peter GERVAIS.
    No. CA-0110.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1983.

      James Burnett Aime, New Orleans, for plaintiff-appellant.
    John M. Holahan, New Orleans, for defendant-appellee.
    Before BARRY, AUGUSTINE, and KLEES, JJ.
   BARRY, Judge.

Plaintiff appeals the maintaining of defendant’s exceptions of no cause and right of action resulting in the dismissal of plaintiff’s petition to set aside a divorce judgment rendered twelve years earlier.

Girard Lynn Pierce, plaintiff, and Donald P. Gervais, defendant, were married June 27,1964 and had one child, Donald, Jr. The original petition for divorce (based on two years separation) filed October 1,1968 avers the parties separated July 1, 1966 and lived apart without reconciliation. A curator was appointed because the defendant was in the Army and missing in action in Viet Nam. The curator was informed by the Army on October 18, 1968 that Specialist Gervais departed the U.S. on January 11, 1968, that he was reported missing on May 1, 1968, and was considered by the Army in “missing status.”

On December 19, 1968 plaintiff was granted a divorce and custody of the minor child. The judgment was amended June 23, 1970 ordering defendant to pay child support in “the full amount allowed by law.” In December, 1968 (days after this divorce) plaintiff remarried, had two children, and divorced her second husband in 1978, or thereabout.

On September 9, 1980 plaintiff (in an attempt to procure widow’s benefits) sued to set aside the 1968 divorce alleging violation of the Soldier’s and Sailor’s Civil Relief Act and because Donald Gervais “is deceased and was at the time of the divorce ... in the Armed Forces ... missing in action and/or perhaps killed in action at the time the judgment was rendered.” A curator was appointed and filed exceptions of no cause and no right of action which were maintained and the petition was dismissed.

Plaintiff argues she should have the opportunity to present evidence which would show the prior judgment was an absolute nullity. She claims her first husband was dead as of May 1, 1968 and the divorce on December 19, 1968 was rendered against a dead person and is null. Next, she contends the judgment is void because the procedures used to obtain the divorce violated LSA-R.S. 9:304 and LSA-R.S. 9:1443.

If Gervais was dead at the time of divorce the judgment is a nullity. East Parker Properties, Inc. v. Pelican Realty Co., 335 So.2d 466 (La.App. 1st Cir.) writ denied 338 So.2d 699 (La.1976). There is jurisprudence to the effect that death is presumed if established facts lead to a strong and almost inevitable inference of death, i.e., submitted to the test of reason, one would be forced to the conviction that Gervais died prior to the judgment. See LSA-C.C. Art. 2288, Jones v. Mason, 234 La. 116, 99 So.2d 46 (1958), Boyd v. New England Mutual Life Ins. Co., 34 La.Ann. 848 (1882). However, no such proof has been adduced here.

The evidence to prove death prior to December 19, 1968 is as follows:

1) A telegram received by plaintiff from the military on May 4, 1968 which advised that her husband was missing in action.
2) A letter from the Army dated October 18, 1968, addressed to the curator, affirming that Gervais was reported missing on May 1, 1968 and was still missing.
3) A letter dated August 21, 1978 from the Army advising: “Army records are being amended to change [Gervais’] status from missing in action to that of deceased as of 25 July 1978.” The letter stated the “date is not an actual or probably date of death, but is a date established in accordance with law.”
4) The Army’s “Report of Casualty” dated August 16, 1978 which set forth in part:
Under the provisions of Sections 555 & 556, Title 37, United States Code, and upon direction and delegation of authority by the Secretary of the Army, The Adjutant General finds MSG Donald P. Gervais, to be dead. He was officially reported as missing in action 1 May 1968, when he was last seen as a gunner on a military aircraft which was struck by hostile weapons fire, crashed and burned. As provided by, and for the purposes of Sections 551— 558, Title 37, United States Code, death is presumed to have occurred on 25 July 1978.

We hold this evidence fails to establish the “almost inevitable” conclusion that Ger-vais was deceased when the divorce was rendered.

Plaintiff next argues she failed to comply with LSA-R.S. 9:304 and LSA-R.S. 9:1441 when the original divorce was secured.

These statutes are inapposite to plaintiff’s position as each applies to the date of presumption of death by the armed services. The military presumption of death was July 25, 1978, long after the 1968 divorce was granted.

Even though we note some irregularities in the divorce proceedings (plaintiff did not testify, only one witness, plaintiff’s father-in-law testified), the record does not reveal sufficient anomalies to vacate the judgment. A curator was appointed to represent the defendant and was properly served. He attempted to locate the defendant, contacted the armed services, filed an answer, and was present at the divorce hearing. The petition for divorce alleged the parties lived separate and apart for two years. While separation resulting from entry into military service will not be considered in computing the two-year period, DeMaupassant v. Clayton, 214 La. 812, 88 So.2d 791 (1949), if the separation occurred prior to and independent of the husband’s departure into the armed services, the time while in the service is properly added to total two years. Gardner v. Gardner, 125 So.2d 463 (La.App. 2d Cir.1960), Davis v. Watts, 208 La. 290, 23 So.2d 97 (1945).

Plaintiff testified at the hearing to nullify the judgment that the parties initially separated in July, 1966. She subsequently lived with her parents and her husband resided with his mother. The letter from the Army to the curator in the divorce proceeding (October 18, 1968) and the Army’s “Report of Casualty” (August 16, 1978) both affirm defendant’s last tour of duty commenced January 22, 1968. The letter adds that Gervais left the U.S. for Viet Nam on January 11, 1968. Under our jurisprudence we find that the divorce granted on these facts was not error.

We note if plaintiff had a legal basis (which she doesn’t) to annul her first divorce, the effect would be a possible bigamous second marriage and the resultant illegitimacy of her two children. Our Supreme Court in Wilson v. Calvin, 221 La. 451, 59 So.2d 451 (1952) said:

There is a strong public policy against disturbing or declaring invalid a judgment of divorce, especially after a long period of time where the marital status of innocent parties who relied on the validity of that judgment would be disturbed, and more particularly where a decree would render innocent parties guilty of bigamy and cast a cloud on the legitimacy of their children.
Id. 59 So.2d at p. 453. See also Call v. Call, 274 So.2d 795 (La.App. 4th Cir.) writ denied 277 So.2d 677 (La.1978).

In conclusion, we find plaintiff failed to show and the record does not contain any of the exclusive grounds for granting an action in nullity. (LSA-C.C.P. Arts. 2001 et seq.) Under Art. 2003 and Dipuma v. Anselmo, 137 So.2d 76 (La.App. 1st Cir.1962), a voluntary acquiescence in the judgment by a successful plaintiff or defendant will preclude a right to assert its nullity. Plaintiff secured and clearly acquiesced in the judgment she attempts to question.

Mindful of the strong public policy involved herein, of the presumption as to the regularity of judicial proceedings, (Call, supra) and for the foregoing reasons, the judgment of the trial court dismissing plaintiff’s petition is affirmed at plaintiff’s cost.

AFFIRMED.

      . Plaintiff complains she was denied the opportunity to present evidence. We note, however, the Trial Judge initially overruled the exceptions explicitly in order to allow presentation of evidence. At this point she testified and exhibits were admitted.

      . LSA-R.S. 9:304:
      The spouse of a person presumed dead, as provided in R.S. 9:1441, may petition the district court of the parish in which the petitioner is domiciled for authority to contract another marriage. Upon the submission of proof that the petitioner is domiciled in the parish, and that the other spouse is presumed dead, the court may authorize petitioner to contract another marriage. The presumption of the death of petitioner’s spouse may be proved as provided in R.S. 9:1443.
      The judgment of court authorizing the petitioner to contract another marriage has the effect of dissolving the marriage to the person presumed dead if he is alive at the time. LSA-R.S. 9:1441:
      A person on active duty in one of the armed services of the United States, who has been reported missing under circumstances which have induced the armed service to which he was attached to accept the presumption of his death, shall likewise be presumed dead under' the law of this state.
      LSA-R.S. 9:1443:
      In a proceeding to open the succession of a person presumed dead, as provided in R.S. 9:1441, or in any other action or proceeding whatever in which the presumption of his death is an issue, this presumption may be proved by a certified copy of an official certificate of the armed service to which he was attached, or of pertinent excerpts from his service record, indicating that the armed service has accepted the presumption of his death.

      . At that time LSA-R.S. 9:301 provided:
      When the spouses have been living separate and apart continuously for a period of two years or more, either spouse may sue for and obtain a judgment of absolute divorce.

      . Plaintiff argued in the lower court (but did not raise the issue here) that the Soldiers’ and Sailors’ Civil Relief Act (50 U.S.C.A.App. § 501 et seq.) was not complied with. While we observe that defendant did not waive his rights under the Act, we note the statute is for the exclusive benefit of the serviceman. A judgment rendered in derrogation of the Act can be attacked only by the serviceman or his legal representative upon a showing he was prejudiced by the judgment and had a meritorious defense to it.
      50 U.S.C.A.App. § 520 provides in part:
      (4) If any judgment shall be rendered in any action or proceeding governed by this section against any person in military service during the period of such service or within thirty days thereafter, and it appears that such person was prejudiced by reason of his military service in making his defense thereto, such judgment may, upon application, made by such person or his legal representative, not later than ninety days after the termination of such service, be opened by the court rendering the same and such defendant or his legal representative let in to defend; provided it is made to appear that the defendant has a meritorious or legal defense to the action or some part thereof. Vacating, setting aside, or reversing any judgment because of any of the provisions of this Act [said sections] shall not impair any right or title acquired by any bona fide purchaser for value under such judgment.
      See also Sanchez v. Sobieski, 3 Ill.App.2d 478, 122 N.E.2d 602 (1954), Thompson v. Lowman, 108 Ohio App. 453, 155 N.E.2d 258 (1958).


author: KLEES, Judge.

text:
    Huey G. HINTON v. OWENSBY & KRITIKOS, INC. and T.A. Kritikos.
    No. CA-0086.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1983.
    Norwood N. Hingle, Jr., New Orleans, for defendants-appellees.
    R. Lee Eddy, III, Metairie, David W. Oestreicher, New Orleans, for plaintiff-appellant.
    Before KLEES, BARRY and AUGUSTINE, JJ.
   KLEES, Judge.

The plaintiff, Huey G. Hinton, a former employee of Owensby and Kritikos, Inc., filed suit against the company and its president to recover sums allegedly owed to him under the company’s incentive compensation program. The defendants denied liability for the payment of any sums credited to the plaintiff under the incentive compensation program.

A jury trial was held, and on defendant’s motion, a directed verdict was granted dismissing the plaintiff’s ease against both defendants. It is from this judgment that the plaintiff now appeals, contending that the trial judge erred in granting the defendant’s motion for a directed verdict.

FACTS

The plaintiff, Huey G. Hinton, was initially employed by the defendant, Owensby & Kritikos, Inc., in February, 1972. He worked for the defendant as a visual inspector for approximately five months.

The plaintiff voluntarily left the company in July, 1972, however, he was rehired in June of 1974 as a supervisor of visual inspection services. At that time, the plaintiff entered into a written work agreement with the defendant, effective June 24, 1974. The plaintiff worked under that agreement until he was promoted to manager of operations. Then, another agreement, effective June 1,1976, was executed by the parties to replace the earlier one. Except for the amount of compensation and the job description, the latter agreement was similar in terms and conditions to the earlier agreement signed by the plaintiff.

The 1976 work agreement provided for an incentive program whereby the plaintiff would receive, as part of his compensation, one per cent of the net volume of annual business generated by two branches of the company. The agreement also provided that the incentive payments were based on a business year from November 1 through October 31, payable on December 15.

Article V, paragraph F of the agreement stated:

“Compensation generated by the Incentive Program for any fraction of a year will not be paid except at the direction of the Board of Directors.”

Around October, 1978, the plaintiff was promoted from manager of operations to vice-president of operations. His base salary was increased from $19,000 to $20,000 a year. At this time, no new work agreement was executed between the plaintiff and Owensby & Kritikos.

Later, because of personal financial reasons, the plaintiff requested that his base salary be increased and his incentive program percentage be decreased. The defendant accommodated the plaintiff. Effective December 1, 1979, the plaintiff’s base salary was raised from $20,000 to $24,-000 a year and the incentive program percentage was decreased from 1% to 0.9%. Also in 1979, the corporation’s fiscal year and incentive program were changed from an October 31 closing date to a September 30 closing date.

After the plaintiff’s promotion to vice-president, he was paid incentive compensation of $20,724.79 on December 15,1978 and $22,555.39 on December 15, 1979.

On July 24,1980, the plaintiff was terminated from his employment with Owensby & Kritikos. The company alleged that the plaintiff had not been, acting in the best interest of the corporation. In particular, the defendant alleged that the plaintiff, while employed as an officer of the company, attempted to persuade co-employees to work for a competitor company which the plaintiff intended to form. In addition, the company contended that the plaintiff sought to persuade a potential customer of Owensby & Kritikos to send business to the company plaintiff intended to form.

On August 26, 1980, Mr. Kritikos, the President of Owensby & Kritikos, sent written notice to the plaintiff confirming his termination of employment. On September 12, 1980, the plaintiff demanded payment from the corporation of all incentive credits earned under the incentive program. The defendant refused to pay the credits, citing Article V, paragraph F of the 1976 work agreement as the reason. The plaintiff then filed this suit to recover any amounts owed to him under the Incentive Program.

DIRECTED VERDICT

The granting of a directed verdict in a civil case tried before a jury is governed by Paragraph A of LSA-C.C.P. art. 1810, which reads as follows:

“A. A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict, which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury.”

However, LSA-C.C.P. art. 1810 does not provide the standard to be used in considering a motion for a directed verdict. That standard has been supplied by the jurisprudence. In Campbell v. Mouton, 373 So.2d 237 (La.App. 3rd Cir.1979), the court stated:

“[The statute allows] the judge to conclude the litigation (in a jury trial) if the facts and inferences are so overwhelmingly in favor of the moving party that the court believes that reasonable men could not arrive at a contrary verdict.”

The court, in Campbell, further stated that the standard of proof is to be based on the Federal standard and cites the language in Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir.1969) in enunciating the state standard to be used:

“On motion for directed verdict and for judgment notwithstanding the verdict that Court should consider all of the evidence — not just that evidence which supports the non-mover’s case — but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury.”

As explained in Campbell, the court must view and interpret the facts in the light most favorable to the plaintiff. Applying this standard to the present case, we conclude that the trial court did not err in granting a directed verdict in favor of the defendants.

Seifert v. General Tire & Rubber Co., 381 So.2d 1262 (La.App. 4th Cir.1980) supports defendants’ position.

Seifert had been employed by General Tire and Rubber Company for nine years and had been a store manager for over five years. On October 30, 1976, he failed to show up with the key to open the store, and three employees waited outside for an hour before finally leaving. Shortly thereafter, the defendant discharged Seifert. The company also refused to pay him any compensation under its incentive payment plan because he was not employed on November 30, 1976, the end of the fiscal year.

On appeal, this court found that the plaintiff was terminated for cause and held that his failure to open the store on October 20th was clearly sufficient ground for discharge. The court denied Seifert any incentive compensation primarily based on the fact that he was discharged for cause prior to the end of the fiscal year.

The facts in Seifert are similar to those in the present case. Hinton also was discharged prior to the end of his company’s fiscal year. Furthermore, the record strongly indicates that the company had just cause for his dismissal. Mr. Hinton admitted that he had contacted key co-employees during company time about the possibility of working for him if he formed a competing company. Additionally, Mr. Hinton admitted that he sought to persuade a potential customer of the defendant to send business to him if he formed a competing company. Based on these facts, it is clear that the defendant had good cause to terminate the employment of Mr. Hinton.

In Seifert, supra, this court held that the Supreme Court case of Morse v. J. Ray Me Dermott & Co., 344 So.2d 1353 (La.1976) is not controlling in situations where the individual was discharged because of fault on his part. Since the actions of the plaintiff clearly evidence fault on his part, reliance on Morse by appellants is misplaced in light of this court’s distinction in Seifert.

Defendants’ arguments are further supported by Copeland v. Gordon Jewelry Corporation, 288 So.2d 404 (La.App. 4th Cir.1974), writ refused, 290 So.2d 911 (La.1974). There the plaintiff’s employment was terminated 21 days short of the anniversary date for the exercise of stock options. The plaintiff’s work agreement specifically stated that the employee must be in the employ of the defendant in order to exercise the options. Under these facts, even though the plaintiff was apparently not discharged for fault on his part, the court held that the plaintiff was not deprived of any rights.

The Seifert ease, while supporting the position of the defendants, ignores a fairly recent case from the Fourth Circuit which supports the plaintiffs argument. In Pender v. Power Structures, Inc., 359 So.2d 1321 (La.App. 4th Cir.1978), an employment contract obligated the employer to pay bonuses to certain employees based on profits earned by the employer. The bonuses were calculated quarterly and payable within thirty days of the end of the bonus period, contingent upon the employee being employed at the time of payment.

The last quarter of the employer’s fiscal year ended on October 31 and the employees were terminated from their employment the next work day (before any bonuses were paid) because they were planning to begin their own business in competition with their employer. Notwithstanding their dismissal for cause, the court awarded the employees their bonuses under the contract.

The court held that the bonus payments were part of the employees’ bargained for compensation for services rendered. It further held that the employees could not be denied the compensation because of their failure to work for the thirty days beyond the bonus period, citing LSA-R.S. 23:634 as authority for the nullification of the thirty day requirement.

LSA-R.S. 23:634 states:

“No person, acting either for himself or as agent or otherwise, shall require any of his employees to sign contracts by which the employees shall forfeit their wages if discharged before the contract is completed or if the employees resign their employment before the contract is completed; but in all such cases the employees shall be entitled to the wages actually earned up to the time of their discharge or resignation.”

The present case is similar to Pender, supra, because the plaintiff, Mr. Hinton, was similarly discharged for allegedly planning to begin his own business in competition with his employer. However, we distinguish Pender from the present case. In Pender, the employees were still employed on the last day of the fiscal period which gave rise to their bonus. The court felt that, under these facts, the bonuses had been “earned” by the employees at the time of their discharge. Therefore, the employees were terminated after the incentive payments had accrued. In the instant case, the plaintiff’s employment was terminated prior to the end of the fiscal period which would have given rise to his incentive compensation. Here, the right to the money had not accrued at the time of discharge.

Accordingly, the judgment appealed from is Affirmed.

AFFIRMED.