text:
    Athanasios LASPOPOULOS v. Marjorie Lee Nobles, wife of Camile CHAISSON, et al.
    No. 12865.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1982.
    Rehearings Denied May 19, 1982.
    Don C. Gardner, Middleberg, Riddle & Person, Metairie, for defendant-appellee.
    Leopold Stahl, New Orleans, for plain tiff-appellant.

      John H. Hammel, Jr., New Orleans, for defendant-appellant.
    Before GULOTTA, CIACCIO and LO-BRANO, JJ.
   LOBRANO, Judge.

The facts of this case are essentially as follows. Defendant-appellee Marjorie Lee Nobles, wife of Camile Chaisson (hereinafter referred to as Nobles) purchased 3608 Chartres Street sometime in 1963. On March 24, 1974 she refinanced the subject property through French Market Homestead Association, and borrowed $22,400.00. At that time the property was appraised at $28,000.00. On April 9, 1979, a fire caused approximately $13,000.00 worth of damages to the property, and in the first week of July, 1979, Nobles received a check from Maryland Casualty, her insurer, for $13,-750.08. The check was made payable to Nobles and French Market, jointly.

Sometime after the fire and prior to October 12, 1979, Anthanasios Laspopoulos, plaintiff-appellant, negotiated with Nobles for the purchase of the subject property. Appellant was fully aware of the damaged condition of the property as his office was immediately adjacent to the property, and he attempted to put out the fire prior to the fire department’s arrival. Finally both defendant-seller and plaintiff-purchaser agreed on the terms of $5,000.00 cash, plus assumption of the homestead mortgage which had a balance of $21,244.76. This agreement was reduced to writing, and on October 12, 1979 the parties executed a standard real estate purchase agreement. On the same day, appellant brought the agreement to French Market for approval of the assumption. On November 15, 1979, the parties executed the sale and assumption as per the terms of the purchase agreement. The homestead increased the interest rate to 8%%, and appellant was required to pay a 1% fee, plus all closing costs. After the closing both appellant and Nobles went to the homestead for the purpose of Nobles obtaining payment of her escrow account. At the same time, she presented the insurance draft to the homestead for endorsement, and they refused to do so. At that point, appellant advised the homestead that the funds should belong to him. However, Nobles also claimed the funds stating she would have never sold the property for such a low price if she had to give the homestead the funds. The homestead claimed the funds alleging that as a loss payee, the funds should be used to reduce the mortgage. Hence Laspopoulos filed suit against Nobles and French Market Homestead claiming ownership of the funds. The homestead filed a third party demand also seeking ownership of the funds. Judge Plotkin, in extremely well written reasons, granted judgment in favor of Nobles, and Laspopoulos and French Market have perfected this appeal.

The purchase agreement executed by both parties is silent as to the disposition of the insurance proceeds. Appellant claims it was his understanding that he was to receive the benefit of those funds, i.e. the repair of the subject property. Yet, his testimony indicates that he had more than ordinary knowledge of real estate transactions. He had purchased several other properties through French Market Homestead on numerous occasions, and was fully aware of the terms and conditions of a purchase agreement. Although he testified that he could neither read hor write the English language, the trial court concluded he comprehended English perfectly. He further testified that Mr. Leon Salloum, the person who prepared the purchase agreement, read the entire document to him prior to his executing same. Appellant did not object or raise any question at that time about the application of the insurance proceeds.

Parol evidence will not be admitted to alter, vary or add to the terms of a written agreement. La.C.C.Art. 2276. However, it can be used to clarify any ambiguity, to complete an obviously incomplete instrument or to show fraud, illegality, mistake, or failure of consideration. Mott v. Phillips, 372 So.2d 223 (La.App. 3rd Cir. 1979) A review of the purchase agreement convinces this Court that its terms are clear and concise and therefore speaks for itself. No mention is made of the insurance proceeds, and therefore we conclude that there was no intention to transfer same to the appellant.

Further, the trial court accepted the appraisal of Mr. M. J. Mayeur who testified that the property had a cost value of $22,-150.00 and a market value of $22,500.00. If appellant would have received the insurance proceeds of $13,750.00, he would have actually only paid $12,494.76 for the property, some $10,000.00 less than the market value. Nobles testified emphatically that she would have never sold the property for that price. The purchase price of $26,244.76 is not unreasonable especially in view of appellant’s testimony that he needed additional space to add to his present offices. The trial judge concluded that “the evidence is overwhelming that the plaintiff intended to purchase the property in a ‘as is’ condition....”

French Market Homestead argues that as the mortgagee it is the rightful owner of the insurance proceeds. It claims that it is the-loss payee under the terms of the policy, and therefore the funds should have been applied to the outstanding balance of the Nobles loan. Although the policy itself was not introduced into evidence, on the hearing for a new trial the lower court concluded that circumstantial evidence indicates that the homestead was a loss payee under the policy. However, the court still refused to award the proceeds to the homestead for the following reasons:

1. The homestead was negligent in its failure to examine, inspect or appraise the property prior to the sale.
2. The homestead’s collateral was not impaired at the time of the loss.
3. The homestead and Laspopoulos would be unjustly enriched.

We agree with the trial court in this regard, particularly on the unjust enrichment theory. Nobles negotiated her selling price on the premise that she would be able to retain the insurance proceeds. Laspopoulos agreed to purchase the property at a fixed price, without any mention being made in the agreement about the insurance proceeds. French Market Homestead consented to the assumption without reviewing the collateral, but was satisfied with an increase in interest rates. Certainly, their security has not been impaired. Under the facts of this case, awarding the insurance proceeds to French Market Homestead would unjustly enrich both the homestead and appellant. The trial court’s reasoning in this regard is very explicit, and we adopt them as our own.

“In Louisiana, the doctrine of ‘unjust enrichment’ is based upon Louisiana Civil Code Articles 21 and 1965. The Louisiana Supreme Court in Edmonston v. A-Second Mortgage Co., 289 So.2d 116 (La.1974) set forth the requirements necessary for the actio de in rem verso to be applicable.
There are five prerequisites which must be met to successfully invoke the action:
1. There must be an enrichment.
2. There must be an impoverishment.
3. There must be a connection between the enrichment and the impoverishment.
4. There must be an absence of justification for the enrichment and impoverishment; and
5. There must be no other remedy at law, that is, the action is corrective or subsidiary in nature. See Edmonston, supra, and Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967).
The Court finds all elements are present, entitling Defendant, Nobles, to a judgment based upon this theory.
1. Enrichment. Plaintiff, Laspopoulos, would receive a benefit for which he had never bargained. By operation of law, if the proceeds were turned over to the Homestead, the money would be used by the Homestead to reduce the Plaintiff’s mortgage debt, that is, it would result in a discharge of a portion of Plaintiff’s obligation to the French Market Homestead.
2. Impoverishment. At the time of the fife Defendant, Nobles, also a party to the insurance contract, acquired a vested interest in the insurance proceeds. By law, these proceeds would have been used at that time to reduce her obligation to the Homestead. If the proceeds are now turned over to the Homestead, the result to Nobles would be in effect that she would pay twice a portion of her obligation to the Homestead. Her obligation was paid the first time in the Act of Sale of the property to Laspopoulos, in which she gave up the property in exchange for $5,000.00 plus Plaintiff’s assumption of the mortgage; the second time would occur if she was now required by this Court to turn over the proceeds to the Homestead, proceeds in which she had a vested interest from the time of the fire, and proceeds which would be used by the Homestead to reduce the mortgage on the property.
3. There must be a connection between the enrichment and the resulting impoverishment. There would be a causal connection between Nobles’ impoverishment and Laspopoulos’ enrichment. When Nobles, in effect, would pay this portion of the mortgage debt the second time, Laspopou-los would be enriched thereby, as his obligation on the mortgage debt would be reduced by the amount turned over.
4. There must be an absence of ‘justification’ for the enrichment. The issue here is whether there was a contract, expressed or implied, between Nobles and Laspopoulos, or between the Homestead and Laspopoulos, i.e., an act, that would justify the enrichment, between the impoverishee and the enrichee or the third party and the enrichee. (See Edmonston, supra, at p. 122). There is no contract, expressed or implied, between the above respective parties that would entitle Laspopoulos to the insurance proceeds that would, in effect, be paid by Nobles to satisfy Laspopoulos’ mortgage debt to the Homestead.
5. The action will only be allowed where there is no other remedy at law. This action is allowed only when there is no express law and may not be used to ‘perpetuate a fraud on the law’. Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967). Mrs. Nobles has no other remedy other than the actio de in rem verso which would permit her to reclaim the $13,-705.08 enrichment that would result to Laspopoulos.”

For the reasons assigned herein, we affirm the judgment below.

AFFIRMED.

      . Although the agreement was executed by both parties on October 12, 1979, they did not sign at the same time.

      . Admittedly the appraisal was done after certain repairs had been done, however Mr. May-eur testified that the property was still not in a livable condition. Further he placed a value of $10,800.00 on the bare land. The trial court accepted the appraisal, and we see no manifest error in this regard.

      . This court takes note of the fact that if the policy had been introduced into evidence, presumably containing the “loss payee” provision, it would have been unnecessary for the trial court to rely on circumstantial evidence.


source: Caselaw Access Project

author: LOBRANO, Judge.

license: Public Domain

text:
    Gertie BLACK v. Herbert L. SUMRALL, State of Louisiana Administrator of the Office of Employment Security, and Barq’s Beverages.
    No. 12845.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1982.
    Ann S. Jones, David Ware, New Orleans, for plaintiff-appellant.
    Willie D. Maynor, Baton Rouge, for Herbert L. Sumrall, Administrator, Office of Employment Sec.
    Michael S. Mitchell, Kullman, Lang, In-man & Bee, New Orleans, for Barq’s Beverages.
    Before GULOTTA, CIACCIO and LO-BRANO, JJ.
   LOBRANO, Judge.

Plaintiff brought this action for judicial review of a decision of the Board of Review of the La. Department of Employment Security holding that she was ineligible for unemployment compensation following her dismissal on June 13, 1980. The trial court upheld the decision of the Board.

The standard of appellate review in cases such as this is set forth in L.S.A. R.S. 23:1634 which provides in pertinent part that “.. . the findings of the Board of Review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court (on appeal) shall be confined to questions of law ...”

In explaining this standard our Supreme Court has held, “... there must be legal and competent evidence to support the factual findings on which the administrative determination turns.” Banks v. Administrator of Dept. of Employment, 393 So.2d 696 (La.1981) at 699. Thus judicial review of the findings of the Board of Review in unemployment compensation cases is limited to first, a determination of whether the facts, are supported by competent evidence, and second, whether the facts, as a matter of law, justify the action taken.

In the instant case, plaintiff was employed at Barq’s Beverages from March, 1979 through June 13, 1980, the date her employment was terminated for alleged misconduct as a production worker. The final incident which lead to plaintiff’s termination occured when, after reporting to work on time and clocking in at approximately 7:30 a. m., she failed to go to her assigned duty station on the production line. Instead she went into the women’s restroom ostensibly to change clothes. Her supervisor located her, knocked on the door, and told her to come out. By plaintiff’s own admission she continued talking with a co-worker in the bathroom. Upon exiting the bathroom she was told by the production manager that she was “holding up production” and that if she did not want to work she should punch out her card. Plaintiff responded by telling her production manager to punch the card himself. This lead to an argument in which there is testimony in the record that plaintiff was “terribly nasty ... loud ... and boisterous”. The record reflects that plaintiff had been warned a number of times about having personal conversations in the restroom while neglecting her work and that every time this matter was discussed with her she always gave the supervisor a lot of back talk. She was discharged subsequent to this incident.

Although plaintiff’s testimony at the hearing before the Appeals Referee was contradictory to the above version of the facts in some respects, the referee made his decision based on his first hand observation of the witnesses, their demeanor and credibility. In the absence of manifest error we cannot substitute our conclusion as to the credibility of the witnesses for that of the Appeal Referee or Board of Review.

We find ample evidence in the record to support the factual conclusions of the Board of Review and therefore turn to the issue of whether plaintiff’s behavior and actions constitute misconduct within the meaning of R.S. 23:1601(2) so as to disqualify her from receiving unemployment compensation benefits.

Misconduct has been defined in our jurisprudence as meaning, “.. . an act of willful or wanton disregard of the employer’s interest; a deliberate violation of the employer’s rules; a disregard of standards of behavior which the employer has a right to expect of his employee; or negligence in such degree or recurrence as to manifest culpability, wrongful interest, or evil design, or show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to the employer.” Atkins v. Doyal, 274 So.2d 438 (La.App. 1st Cir. 1973) at 440.

The plaintiff’s conduct displayed a definite disregard of the standards of behavior which her employer had a right to expect. The employer’s interest was necessarily to get the production line going. Plaintiff jeopardized her employment by intentionally holding up the production line. This action on her part was a willful disregard of her employer’s interest. The record reflects that this was not an isolated incident, but that similar incidents had previously occurred. Instead of heeding her employer’s repeated warnings not to engage in idle conversation in the restroom after clocking in, plaintiff chose to continue her detrimental actions which resulted in her termination.

We find therefore that plaintiff’s conduct in the instant case clearly falls within the definition of misconduct contemplated in R.S. 23:1601(2) and she is disqualified from receiving unemployment compensation benefits. For the above and foregoing reasons, the judgment of the lower court is affirmed.

AFFIRMED.


author: WARD, Judge.

text:
    Stephen COIGNET v. Richard DEUBERT.
    No. 12867.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1982.

      J. Paul Demarest, Favret, Favret, De-marest & Russo, New Orleans, for plaintiff-appellee.
    Robert J. Caluda, New Orleans, for defendant-appellant.
    Before SCHOTT, WARD and KLEES, JJ.
   WARD, Judge.

Plaintiff, Stephen Coignet, sues for damages for personal injuries he received in a fight that occurred in Mother’s Lounge, a bar in the City of New Orleans. The Trial Judge awarded Coignet $6,278.00, and the defendant appeals that judgment. The issues raised on appeal are: (1) Were witnesses erroneously permitted to testify? (2) Was a plea of nolo contendere erroneously received as evidence? and (3) Is the amount awarded by the court excessive? First, a short review of the facts is appropriate.

All of the events took place in Mother’s Lounge in the early evening of December 14, 1979. On that evening, a Friday, both Coignet and Deubert were patrons of the lounge. Coignet had gone to the lounge to shoot pool and meet some friends; Deubert went there to meet his wife and some of his co-workers. Shortly after Deubert arrived at the lounge, his wife went to the bar to order a drink. While there, she engaged in a brief conversation with Coignet and his friend, Terry Rankin. After she was served and left the bar area, Deubert attacked Coignet because of remarks Coignet made about Deubert’s wife. The fight was immediately broken up by friends. Nevertheless, about fifteen minutes later a fight again broke out between the two men.

There was conflicting testimony offered by Coignet and Deubert during trial. Coig-net testified that he noticed Deubert coming toward him from the end of the bar, and the next thing he knew he was spun around and Deubert smashed him in the side of his face with a beer glass. He received severe facial lacerations and was taken to the Ochsner Foundation Hospital emergency room, where doctors sutured his face with over forty stitches. Deubert testified that Coignet came to his end of the bar, and before he knew what was happening, a “force” was on him. However, he admitted he hit Coignet with the beer glass. At trial, Coignet’s testimony was corroborated by three friends who were patrons of the bar. Deubert’s version was corroborated by four of his co-workers who were also patrons of the bar.

The trial judge chose to believe the plaintiff and his witnesses. He concluded that Deubert was the aggressor, who committed an unprovoked battery upon Coignet. The judge found, in the alternative, that even if Coignet was the aggressor and Deubert was defending himself, Deubert used excessive force in repelling the attack. The judge awarded Coignet damages: $78.00 for emergency room expenses; $150.00 for the examining physician, Dr. Krust; $2,050.00 for future medical expenses; and $4,000.00 for past, present and future pain and suffering and permanent disfigurement.

The first issue raised by Deubert is a procedural one. Deubert objected at trial when the judge allowed the witnesses Virgil Fox, John Whysong and Terry Rankin to testify because their names were not included as potential witnesses in Coignet’s answers to interrogatories filed by Deubert. He argues that the judge committed manifest error: the judge permitted Coignet to ignore his obligation to supplement interrogatories so as to make full disclosure of the witnesses Coignet intended to call during trial.

Coignet contends that he only discovered those witnesses after he filed his answers. Further, he alleges that although he did not supplement his answers, he notified Deu-bert of the additional witnesses when he sent his attorney a carbon copy of a letter mailed to the Clerk of Court requesting that subpoenas issue for those witnesses— no matter how much Deubert’s attorney denies receipt of the carbon copy. Coignet also argues that even if Deubert did not receive notice of the additional witnesses, he cannot complain because he did not comply with the Trial Judge’s “Pre-Trial Order” which required counsel to subpoena all witnesses and to place the names of those witnesses in the record. He contends that although he complied, Deubert did not, and Deubert did not challenge this accusation.

As to discovery, LSA-C.C.P. Art. 1428 provides in its pertinent parts:

A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his response to include information thereafter acquired, except as follows:
(1) A party is under a duty seasonably to supplement his response with respect to any question directly addressed to the identity and location of persons having knowledge of discoverable matters, and the identity of each person expected to be called as an expert witness at trial, the subject matter on which he is expected to testify, and the substance of his testimony-
(2) A party is under a duty seasonably to amend a prior response if he obtains information upon the basis of which he knows that the response was incorrect when made, or he knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.
(3) A duty to supplement responses may be imposed by order of the court, agreement of the parties, or at any time prior to trial through new requests for supplementation of prior responses. (Acts 1976, No. 574, § 1)

Although we believe LSA-C.C.P. Art. 1428 clearly required Coignet to supplement his answers to the interrogatories, we conclude that the trial judge did not err when he received the testimony of these witnesses for the following reasons. We believe counsel must be charged with the responsibility of knowing the entire contents of the record, including in this instance opposing counsel’s requests for additional subpoenas to witnesses not previously disclosed. Deubert did not move for a continuance after Coignet made this request, and waived any defect caused by omission of witnesses from the answers to the interrogatories. Also, Deubert did not move for a continuance after he had actual knowledge immediately before trial that those witnesses would testify for Coignet. This is further evidence he waived the defect in Coignet’s answers.

The trial judge must be given great discretion in deciding whether to receive or refuse the offered testimony of witnesses and any bias must be in favor of receiving the testimony. In determining whether there was an abuse of that discretion, we considered whether there was a willful or negligent failure to disclose names of witnesses by Coignet, and whether Deubert also failed to comply with the prescribed pre-trial procedure of the Pre-Trial Order to disclose his witnesses to Coignet. Because of the unusual omissions of both attorneys in this case, we find the Trial Judge did not abuse that discretion when he received that testimony.

As to the second issue in this appeal, Deubert alleges that the Trial Judge erred in “relying heavily” in his reasons for judgment on “unsubstantiated criminal proceedings” — a plea of nolo contendere entered by Deubert in a criminal proceeding arising from the same incident. This plea was proven at trial; it was admitted by the defendant on cross-examination. Nevertheless, we find that the trial judge erroneously considered the nolo contendere plea when he weighed the evidence in the case. In our opinion, LSA-R.S. 13:3737 and LSA-R.S. 13:3739 prohibit the introduction or receipt into evidence of any mention of a nolo contendere plea:

§ 3737. Evidence of a plea of nolo contendere shall not be admissable for any purpose in any civil judicial proceeding. Nothing contained herein shall prohibit the impeachment of witnesses in any civil judicial proceeding.
§ 3739. A person claiming damages for injury to person or property, or for wrongful death, in a civil action may introduce evidence that a party alleged to have caused the damages was convicted, either after a trial or upon a plea of guilty, but not upon a plea of nolo con-tendere, of a crime punishable by death or imprisonment and arising out of the factual circumstances in which the party is alleged to have caused the damages. ...

There was error, but we must consider the Trial Judge’s findings of fact and reasons for judgment to decide if the error was harmless or prejudicial. The applicable law is summarized in Naquin v. Maryland Casualty Company, 311 So.2d 48 (La.App. 3rd Cir. 1975), writ ref. 313 So.2d 598 (La.1975):

When a review of the record indicates the trial court judgment is correct and that justice has been done, the judgment will not be overturned because of errors which do not affect the merits. LSA-C. C.P. Art. 2164 (citations omitted) when error is detected, it must be weighed to determine whether such error is harmless or prejudicial (citations omitted). When there is evidence before the trier of fact which, upon reasonable evaluation, furnishes a factual basis for the trial court’s finding, the appellate court, on review, should not disturb this factual finding absent manifest error (citations omitted).

If there was any question whether Deu-bert struck Coignet with a beer glass and if the nolo contendere plea was received as evidence to prove this, this would be prejudicial error. But this was not the case; Deubert admitted he struck Coignet with the glass. If the Trial Judge believed the nolo contendere plea discredited Deubert’s testimony, then it was prejudicial error to consider it for that purpose. Again, this is not the case: Deubert’s testimony was not rejected, it was accepted. Even so, the Trial Judge found Deubert liable to Coignet for damages since he believed Deubert used excessive force to repel any assault. As he stated in the judgment:

Even if defendant’s (Deubert’s) version were correct and his actions self-defense, his use of a beer glass to strike the plaintiff, under the circumstances, was excessive.

Under these circumstances, admitting the nolo contendere plea as evidence in this civil proceeding, although error, is not prejudicial error which requires a reversal of the judgment.

Finally, the defendant alternatively contends that even if he is liable for Coignet’s injuries, the court’s award to Coignet was excessive and unjustified. Coignet was evaluated for forensic purposes by Dr. Krust six months after his injuries. Dr. Krust found that as a result of his facial injuries he has a permanent visible scar on one side of his face, which could be excised with a number of brief hospital visits. Photographs of his face shortly after the removal of the stitches were introduced at trial, and the Trial Judge was in a position to see the scars caused by Deu-bert’s attack and to evaluate the extent of Coignet’s physical and mental pain and suffering. The trier of fact is granted great discretion in assessing the quantum of damages, and in the absence of a clear showing of manifest error or of an abuse of discretion, an award should not be disturbed. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). We do not feel that the amount awarded by the Trial Judge was an abuse of discretion.

Affirmed.


author: BYRNES, Judge.

text:
    Aaron V. GREEN v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 12871.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 8, 1982.

      Roger J. Larue, Jr., Metairie, for plaintiff-appellant.
    David R. Richardson, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, for defendant-appellees.
    Before REDMANN, BYRNES and GARRISON, JJ.
   BYRNES, Judge.

This is an appeal from a trial court ruling denying workers compensation to appellant. The appellant claims that an injury to his neck from an accident unrelated to his work was aggravated by the constant turning of his head while in the course and scope of his employment as a bus driver. We, as did the trial judge, do not agree and therefore we affirm the trial court’s decision denying compensation benefits.

We are not in the position of the trial court when reviewing a “cold” record to ascertain the demeanor of parties and as such, great weight must be given to the trial judge’s impressions as supported by the record. We feel that the trial judge’s reason for judgment reflect a demeanor absent from the record before us and include his reasons for judgment here insofar as they are very helpful in setting the tone of trial court proceedings and also since we feel that this court must not take lightly our responsibility when denying workmen’s compensation benefits to an injured worker. After a careful review of the record we cannot disagree with the trial court judge and therefore we accept his findings of fact and reasons for judgment and so include them in this opinion.

“The plaintiff, at the time of the trial, was a 38 year old male, with a child. He began working for New Orleans Public Service, Inc. in 1970, at which time he filled in a pre-employment application. He was employed as a bus driver. In April and December, 1975, he was involved in off-duty automobile accidents, for which he filed law suits, alleging neck and cervical injuries. In 1966, while in Viet Nam, he sustained a knee injury for which he has been collecting a 10% disability pension. He did not reveal this fact to New Orleans Public Service, Inc. when he applied for his job. He partially relied on his knee condition in this case for workmen’s compensation, and this is almost a side issue. The reason is obvious; while working in New Orleans Public Service, Inc., he tried to have his knee disability medically increased and then was denied by the Veterans Administration, which allegedly found no substantial change in his knee. But he was being treated, off and on for his knee problem since before he went to work for New Orleans Public Service, Inc. His principal physician has been Dr. Whitecloud, an orthopedic specialist. Dr. Whitecloud has never examined or treated him for his knee. His testimony is, he knows his knee is worse, but he can’t prove it. The doctors treating his knee at the Veterans Administration hospital don’t agree with him, and neither does the court.”
“The medical evidence is that this man has had a significantly deteriorated cervical disc. He has a severe osteo-arthritic condition of which the doctors say that it is impossible to determine when it began. Further, his job activity has nothing to do with that condition; does not aggravate or worsen the condition. However, the job activity increases the “sympton complex”. Turning his head back and forth in the operation of his bus might cause some pain and discomfort, but that would be ail! In 1970, Dr. Whitecloud said: ‘He is a pretty young man to have had the degeneration he had.’ No one can say or even intimate that this man sustained any work-related accident.”
“On the occasions on which he was injured in automobile accidents, he collected for cervical injuries, and he also received sick pay. On each occasion, he was off work for months. He collected sick pay benefits for December, 1978 until June, 1979 when he was terminated. To be able to do so he had to certify to the insurance carrier that his illness was not work-related, which he did. Now, having collected the maximum sick leave benefits, he reverses his position and says his condition, his illness is work-related, for which he is due workmen’s compensation benefits. He claims that being required to turn his head while driving a bus causes his pain symptoms to be more severe.”
“He has had a horrible work record, having missed 600 days of work between 1970 and 1979, for non-work related accidental injuries, nose bleeds, toothaches, colds, flu, loose bowels, etc. When he could no longer operate a bus, New Orleans Public Service, Inc., offered him another job in stores, which would be lighter work. He refused to accept it, because it meant two things: (1) a decrease in pay and (2) loss of seniority because he would be required to enter the new job at an entry level.”
“The court observed that the plaintiff did not adequately explain away any “tight situation” or unfavorable position he found himself in. He dodged questions. He circumvented issues, and his answers to ‘tight unfavorable questions’ were less than the whole truth, were seldom direct answers. On other occasions, in his testimony in brief, he was fully cooperative, understanding, direct and able to respond without difficulty. But on cross-examination, the moment that he sensed that a truthful answer might be harmful to his cause, it was a different story.”
“From the evidence taken as a whole, the court concludes that all this plaintiff needed to collect workmen’s compensation was the passage of time. His progressive, severe, degenerative spinal disease is in no way related to his work. In fact, his own testimony is that his condition has gotten worse since he stopped working. It is clear from the evidence that his work did not cause his condition. It is also clear that his work did not aggravate his condition. It is just as clear that he sustained no trauma or accident per se on his job. The best that can be said for him is that he had painful symptoms, and that his work made his symptoms more painful.”
“To hold the defendant employer liable for workmen’s compensation in this case would be tantamount to making New Orleans Public Service, Inc., the health insurer of its employees. I find this case no different from any of the following:
(a) A bus driver asking for compensation because sitting down caused his hemorrhoids to become more painful.
(b) A bus driver (or any other employee) saying he cannot work outside or in a well-lighted office because the glare hurt his glaucoma.
(c) All laborers or outside workmen saying they cannot work on nice, clear, dry, warm, sunshiny, days because the infra-red rays of the sun caused them to get skin cancer, etc.”
“There will be judgment herein in favor of the defendant, dismissing plaintiff’s suit.”

The issue raised by plaintiff on appeal to which we now address ourselves is whether pain caused by work is sufficient to bring one within the scope of the worker’s compensation act, not withstanding the fact that the underlying condition is totally unrelated to and not aggravated by one’s work.

The law is well settled in Louisiana in that if a worker is afflicted with a preexisting condition which in its ordinary course may have produced disability he is nevertheless entitled to workers compensation benefits if a work related accident brings about disabling consequences. See Allor v. Belden, 393 So.2d 1233 (La.1981); E. G. Roberson v. Liberty Mutual Insurance Company, 316 So.2d 22 (La.App. 3rd Cir. 1975); Jones v. Douglas Public Service, 264 So.2d 267 (La.App. 4th Cir. 1972); Lum v. Employers Mutual Liability Insurance Com pany of Wisconsin, 216 So.2d 889 (La.App. 2nd Cir. 1968).

The key questions presenting themselves to this court are whether the turning of the bus driver’s head in the course and scope of his employment constitutes a work related accident and whether or not the preexisting condition was aggravated or was the aggravation merely of symptomatic origin.

The jurisprudence in Louisiana states that an accident may be either a single trauma or many insignificant instances which cumulatively result in disability. It has been held that a worker subjected to severe temperature changes as many as a hundred and fifty (150) times per day was entitled to compensation because of his disability resulting in the many “accidents” with the court defining each temperature change as a separate accident. See Gales v. Great Atlantic & Pacific Tea Co., 342 So.2d 241 (La.App. 4th Cir. 1977), Writ refused, 343 So.2d 1077. While the turning of the bus driver’s neck during the course and scope of his employment can no doubt be considered a condition of his employment as a bus driver which could conceivably aggravate the preexisting condition, this court is unwilling to carry the rationale of Gales to this extreme. If we were to do so, every act of a worker while in the course and scope of employment, no matter how insignificant, could purport to aggravate a preexisting condition, thus making the employer the absolute insurer of his employees’ safety. We feel this is a disproportionate burden placed on the employer, one not so intended by the drafters of our worker’s compensation act.

There is ample testimony in the record to lead this court to conclude that the pain resulting from the turning of the neck was symptomatic and not related to any further deterioration of the cervical trauma suffered by the appellant. This court recognizes that in the case where pain in and of itself has been held to constitute a com-pensable injury, this pain has invariably resulted from a deterioration of a preexisting condition. In the instant case, there is no evidence of any said deterioration. On the contrary, there is testimony to the effect that the neck injury got progressively worse even after the appellant was discharged from his job.

We therefore affirm the trial court’s decision rendered January 29, 1981 and assess all costs of this appeal to appellant.

AFFIRMED.

      . Canter v. Koehring Co., 283 So.2d 716 (La.1973)


author: GUIDRY, Judge.

text:
    BICO ENTERPRISES, INC., Plaintiff-Appellee, v. Charles CANTRELL, d/b/a 4-C Distributors, Defendant-Appellant.
    No. 8612.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1982.

      Robert L. Salim, Natchitoches, for defendant-appellant.
    Self & Burkett, Don Burkett, Many, for plaintiff-appellee.
    Before GUIDRY, CUTRER and STOKER, JJ. .
   GUIDRY, Judge.

This is a suit for breach of contract. Plaintiff, Bico Enterprises, Inc. (hereafter Bico) instituted the present action against defendant, Charles Cantrell, d/b/a 4-C Distributors, to recover the contract price and damages allegedly sustained as a result of defendant’s failure to perform a contract for the construction and equipping of a car wash located in Many, Louisiana. Subsequent to the filing of suit, James Cook joined Bico as plaintiff. After filing his initial answer to plaintiffs’ petition, Cantrell filed an amending answer which included a reconventional demand. Cantrell’s re-conventional demand asserts that plaintiffs (defendants-in-reconvention) Bico and James Cook along with Thelma Cook, president of Bico, are indebted to defendant in the sum of $6,000.00 representing additional costs incurred by Cantrell in building the disputed structure and allegedly incurred after the confection of the original agreement. After trial, the district court concluded that the car wash constructed by the defendant was so defective as to be unfit for its intended use and purpose. Plaintiffs were awarded judgment in the sum of $8,150.00 representing the amount paid by plaintiffs to the defendant less an amount paid by Cantrell to a concrete subcontractor. Defendant appeals from that judgment. Plaintiffs have neither answered nor appealed from the decision of the trial court.

The facts, as gleaned from the record, may be summarized -as follows: In December of 1978, plaintiffs and the defendant entered into a verbal agreement in which the parties agreed that defendant would build a car wash for Bico Enterprises, Inc. The only written evidence of the aforesaid agreement is an invoice form signed by Charles Cantrell which states:

“Will build car wash (slab to bid) for $12,200.00 not counting concrete. ($3,000.00 advanced 4-2-79).”

According to the record, defendant agreed to construct the car wash on property owned by Bico. In addition, the defendant agreed to sell and install the equipment necessary for the car wash operation. In return, plaintiffs were to pay to defendant the sum of $12,200.00 for the construction of the building as well as pay for all needed concrete materials and the equipment installed. Thelma Cook, president of Bico, testified that plaintiffs contracted only for the construction of a four-bay cinder block car wash suitable for the purpose intended with the exact manner of construction and the particular building specifications being left to defendant’s discretion. Construction of the proposed car wash began sometime in either February or March of 1979. Defendant ceased working on the project in July of the same year. Shortly thereafter, plaintiffs’ attorney made amicable demand upon the defendant for specific performance of the contract. The defendant refused to return to the job site and complete the project. The record contains conflicting testimony regarding the reason for the work stoppage. Mrs. Cook testified that the defendant refused to continue construction because he needed money as a result of underbidding the project. Cantrell, however, stated at trial that he discontinued construction because plaintiffs refused to pay one of the subcontractors for services rendered in connection with the project.

Evidence received at trial sufficiently established that plaintiffs paid to defendant the sum of $11,900.00 as partial payment of the total contract price for the construction of the car wash. Mrs. Cook testified that prior to the agreement between the parties, plaintiffs initially agreed to purchase the equipment necessary for the business from the defendant at a total price of $12,600.00. Documentary evidence introduced at trial reveals that plaintiffs made an initial down payment on the equipment of $1,000.00 with a subsequent payment in February, 1979 in the sum of $11,104.00. Mrs. Cook stated that of the aforesaid equipment, certain overhead lights, a towel vendor, and a white wall vendor were neither installed nor delivered.

Mrs. Cook testified that there were numerous problems with the project. In this regard, she stated that the defendant failed to complete the car wash by the agreed upon date of June 21, 1979. Problems with the building itself included cracked walls; a sagging roof; one wall totally destroyed as a result of high winds; and, portions of the roof were damaged as a result of the failure of the defendant to properly adhere the roofing material to the structure. Mrs. Cook testified that it was Cantrell who recommended that the car wash be constructed of cinder blocks. In addition, Cantrell was responsible for the manner in which the structure was constructed including the height of the walls and the method of reinforcing the same.

Plaintiffs’ expert witness, Valmore Byles, a licensed general contractor with over 20 years experience in the fields of general, commercial, and industrial construction, testified that after inspecting the car wash structure, he concluded that the method and manner of construction of the facility was totally unacceptable. In this regard, Byles stated that the cinder block walls were not properly reinforced and the structure was unsafe. Byles also testified that the roof was not constructed properly. Specifically, Byles stated that there was no mastic (adhesive) to adhere the roofing material to the structure. In addition, he indicated that the roof was constructed of 2 X 6’s which spanned a distance of 16-17 feet. Byles stated that such a span was simply too far to be sturdy and stable. As a result of such poor and substandard construction practices, the roof of the structure sags. Other problems with the structure, as noted by Byles in his inspection of the premises, include clogged drains; the openings in the grates protecting the drainage holes being too large, thus, presenting a safety hazard; and, the roof joists not being properly fastened to the concrete block walls. Byles opined that there was no way to salvage or repair the car wash building, rather, it would have to be torn down and the project redone. Byles testified that the concrete foundation was the only salvageable item.

Contrary to the testimony of Cook and Byles, the defendant testified that the walls of the structure were properly constructed. He stated that he reinforced the walls of the structure with metal rebars to a height of three to four feet. Cantrell stated that the purpose of such reinforcement was not to strengthen the walls against horizontal forces, such as high winds, but rather, to minimize the cost of repairing the walls in case such was needed in the future. Cantrell also stated that he recommended to plaintiffs that bricks instead of cinder blocks be used in the construction of the car wash, however, plaintiffs chose to use cinder blocks. Finally, defendant asserts that his original estimate of the cost of the car wash did not include the various and sundry changes insisted upon by the plaintiffs after construction was begun. Defendant testified that he agreed to make the changes proposed by the plaintiffs only after they agreed to pay all additional costs incurred as a result of such changes. Defendant admitted that plaintiffs made amicable demand upon him to finish the project, but he refused. Defendant also admitted that plaintiffs owed nothing more on the equipment.

Defendant presented several witnesses, most of whom worked as subcontractors on the disputed project. Amos Richardson, a brick mason, who laid the cinder block walls testified that the project employed light weight cinder blocks and that the walls of the car wash were reinforced by metal re-bar for every three to four feet in height. Richardson indicated that in his experience such reinforcement was sufficient in cases involving regular eight foot walls. However, Richardson admitted that since the walls were 10 to 12 feet in height, the better practice would have been to reinforce the walls with pilasters. James Yates, who poured the slab for the disputed structure, stated that the concrete foundation was laid properly. Harold Jones, who put the roof on the building, indicated that Cantrell informed him that he would complete some additional work on the roof to prevent updrafts from getting underneath the roofing material and blowing such material off. The record reflects that such additional work was never completed.

In addition to the above, plaintiffs introduced into evidence numerous photographs of the car wash. These photographs, admitted over defendant’s objection, reflect substandard workmanship in the construction of the facility.

The issues on appeal are:

(1) Did the trial court clearly err in admitting into evidence certain photographs taken of the car wash premises in dispute? '

(2) Did the trial court clearly err in qualifying Valmore Byles as an expert witness?

(3) Did the trial court err in denying defendant’s motion to inspect the premises?

(4) Did the trial court err in concluding that the defendant violated the implied warranty of good workmanship performance as provided in LSA-C.C. Article 2769?

Defendant first contends that the trial court erred in admitting into evidence certain photographs taken of the car wash premises. In this regard, Cantrell argues that the photographs were received in evidence without requiring a proper foundation. In support of his contention, defendant argues that the aforesaid photographs were taken after one year had elapsed from the time in which defendant discontinued construction of the facility, thus, they do not accurately depict the condition of the car wash in July of 1979. Defendant further asserts that the photographs are inadmissible because the photographer who took the objectionable photographs was not present at the trial and available for cross-examination. At the outset, we observe that prior to the photographs being received into evidence, it was established that the photographs were taken the day before trial and represented the condition of the car wash at that time. In addition, plaintiffs’ witness, Thelma Cook, was questioned as to the differences in the appearance of the building at the time of the photographs as compared to the time in which construction was discontinued, and presumably, the trial judge took notice of such differences.

It is well settled that in order for photographs to be admissible, it need only be shown that a photograph depicts what it purports to depict. Derouen v. Department of Transportation and Development, Office of Highways, 392 So.2d 765 (La.App. 3rd Cir. 1980) and cases cited therein. Further, the fact that there are differences or changes in the conditions does not necessarily exclude a photograph where the changes and differences are explained. See Messex v. Louisiana Department of Highways, 302 So.2d 40 (La.App. 3rd Cir. 1974). After reviewing the record, we conclude that a proper foundation for the admissibility of the photographs was laid by plaintiffs, thus, the trial court did not err in admitting the same in evidence.

Defendant next contends that thé trial court erred in qualifying Valmore Byles as an expert witness in the fields of general, commercial, and industrial construction. Defendant argues that Byles does not possess the required experience and education to testify as an expert in the field of construction.

The record reflects that at the time of trial Byles had had twenty years experience in the fields of general, commercial, and industrial construction. Byles testified that he had constructed between 100-200 buildings in Sabine Parish including several composed primarily of cinder blocks. The record reflects that Byles is licensed by the State of Louisiana as a general contractor. A trial judge must be allowed much discretion in determining a witness’ qualifications and competence to testify as an expert, and the reviewing court will not disturb a trial judge’s ruling unless error is clear. See Sledge v. Aluminum Specialties Mtfg., Inc., 351 So.2d 835 (La.App. 1st Cir. 1977); Maxwell v. State, Department of Transportation and Development, 391 So.2d 1230 (La. App. 1st Cir. 1980), writ denied, 394 So.2d 281 (La.1980). We conclude that the trial judge was clearly justified in accepting Byles as an expert witness in the fields of general, commercial, and industrial construction.

Defendant next contends that the trial court erred in denying his motion to inspect the premises. Defendant asserts that had the trial judge visited the car wash premises, he would have seen, first hand, that the photographs introduced by plaintiffs were distorted and the premises were, in fact, undamaged. It is well settled that a trial judge possesses the right to take into consideration his personal evaluation and observation of the disputed area, not for the purpose of supplying new evidence, but for the purpose of determining, when the evidence adduced by the litigants with respect thereto is in hopeless conflict, which version thereof is worthy of belief. See Maturin v. Dronet, 288 So.2d 690 (La.App. 3rd Cir. 1974); Sledge v. Aluminum Specialities, Inc., supra. Generally, visits by the trial court to sites which are the subject of the litigation are conducted only in instances where the testimony is so confusing and conflicting that such excursions aid the trial court in visualizing the disputed occurrence. Presumably, the trial court in the present case did not feel it necessary to conduct such a time-consuming activity because he was satisfied that the facts necessary to make a fair and impartial decision were contained in the record before him. We discern no error in this conclusion.

Defendant’s final contention is that the trial court manifestly erred in concluding that he violated the implied warranty of good workmanship performance as provided in LSA-C.C. Article 2769 by constructing the car wash in such a manner as to be unfit for the purpose intended. We disagree.

It is implied in every building contract that the work of the contractor or builder will be in a good, workmanlike manner, free from defect, either in material or workmanship. LSA-C.C. Article 2769; Troy v. Bretz, 399 So.2d 667 (La.App. 1st Cir. 1981); Tiger Well Service v. Kimball Production Co., 343 So.2d 1153 (La.App. 3rd Cir. 1977). Contractors are liable under the aforesaid jurisprudential rule only when the plaintiff can prove that the contract was not performed in a workmanlike manner. Such proof must necessarily include some showing of want of skill, efficiency or knowledge, or some lack of ordinary care in the performance of the work or in the selection of suitable materials and equipment. Tiger Well Service v. Kimball Production Co., supra.

The record contains substantial testimony and evidence supporting the factual finding of the trial court. Valmore Byles, an expert witness in the fields of general, commercial, and industrial construction, stated unequivocally that the car wash structure was poorly constructed and unsafe. Byles indicated that the only salvageable item in the entire structure was the concrete foundation. It is undisputed that one of the car wash walls collapsed under the force of a strong wind. . Defendant’s own witness, Amos Richardson, admitted that walls of the height of those in dispute required greater reinforcement in order to be secure, stable and safe. The photographs introduced into evidence, although taken a year after construction was discontinued, clearly reflect the poor workmanship of defendant in constructing the car wash. Thus, we discern no clear error in the factual conclusions of the trial court.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to the defendant, Charles Cantrell, d/b/a 4-C Distributors.

AFFIRMED.


author: CUTRER, Judge.

text:
    David YOUNG, d/b/a Young’s Cash Store, Plaintiff-Appellee, v. Gary LEACH, d/b/a Gary Leach Contractor, et al., Defendants-Appellants.
    No. 8631.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1982.

      E. L. Edwards, Jr., Many, for defendants-appellants.
    Lowther & Boone, William R. Boone, Many, for plaintiff-appellee.
    Gary Leach in pro. per.
    Before GUIDRY, CUTRER and STOKER, JJ.
   CUTRER, Judge.

David Young, d/b/a Young’s Cash Store (Young), sued Harvey A. Alford (Alford) and Gary Leach, d/b/a Gary Leach Contractor (Leach), seeking judgment against them, in solido, for the sum of $1,633.89 and the recognition of a lien and privilege. The request for the recognition of the lien and privilege was denied. Alford appealed. We affirm.

Leach contracted with Alford to build a residence on certain described property. Although the contract was reduced to writing, it was not recorded. Leach did not furnish a bond to secure the contract.

Under the terms of the contract, Leach was to furnish all labor and materials, including floor coverings. Mrs. Alford went to Young’s place of business and selected the floor covering she wanted. It was priced, measurements were taken and the floor covering was subsequently installed on the premises by Young at a cost of $1,583.89.

Alford alleged that Leach was responsible for the cost of the floor covering. Young alleged that it was only after the floor covering was installed and he presented the bill to the Alfords that he learned of Leach’s obligation to the Alfords. Upon Alford’s instructions, Young sent a bill to Leach; it was never paid. Alford paid Leach in full for the construction of the residence, including the money for the floor covering.

On June 11, 1979, Young filed of record an affidavit of his claim, which he alleged preserved a lien and privilege on the real estate and home. In the instant suit, Young sought to have his lien and privilege recognized and to recover from both defendants, in solido, the cost of the floor covering plus the attorney’s fee of $50.00 for the preparation of the affidavit of claim.

Leach was served and cited on October 16, 1979, to which he filed no answer. A preliminary default was entered against Leach on November 12, 1979. This matter was tried and judgment was rendered only against Alford in the amount of $1,583.39 plus legal interest and one-half the court costs. From this judgment Alford appealed. We affirm.

The issues presented in this case are:

(1) Whether the trial court was manifestly erroneous in rendering judgment against the defendant, Alford; and
(2) Whether the trial court erred in not recognizing plaintiff’s claim of a valid lien and privilege.

LIABILITY OF ALFORD

As to the first issue, the owner, Alford, is personally liable for the price of the materials furnished by the plaintiff. This liability arises as a matter of law. While there is no dispute as to the amount owed for the materials ($1,583.89), the disagreement between Alford and the plaintiff as to whom is liable is without substance. Both Leach and Alford, the owner, are liable since there was no timely recorded construction contract. Kerner v. Gilt, 296 So.2d 428 (La.App. 4th Cir. 1974), writ den., 300 So.2d 185 (La.1974); LSA-R.S. 9:4812. The trial judge correctly rendered judgment against Alford.

PLAINTIFF’S LIEN

Young filed his affidavit on June 11, 1979. The floor covering was installed by Young on March 10, 1979. Leach performed the final work on the residence on March 11,1979. Mrs. Alford paid Leach the final payment on the contract on March 19, 1979.

LSA-R.S. 9:4812 requires that the lien be filed within sixty days after the last delivery of supplies or materials or the last performance of all services of labor. As we consider the dates set forth in the preceding paragraph, Young failed to timely file his lien. The trial court correctly refused to recognize Young’s lien.

For the reasons set forth, the judgment of the trial court shall be affirmed. Alford, appellant, is to pay costs of this appeal.

AFFIRMED.


author: DOUCET, Judge.

text:
    Charles SCHRUMPF, Plaintiff-Appellant, v. GEORGIA INTERNATIONAL LIFE INSURANCE COMPANY, Defendant-Appellee.
    No. 8632.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1982.
    Writ Denied May 28, 1982.
    Sumpter & Schrumpf, Oliver J. Schrumpf, Sulphur, for plaintiff-appellant.
    Woodley, Barnett, Cox, Williams & Fen-et, Terry Thibodeaux, Lake Charles, for defendant-appellee.
    Before CULPEPPER, SWIFT and DOU-CET, JJ.
   DOUCET, Judge.

This is a suit for benefits allegedly due under a group insurance plan issued under a master policy by Georgia International Life Insurance Company. •

Plaintiff, Charles Schrumpf, had dental work performed by his dentist, Dr. H. G. Guidry, and filed a claim. This claim was rejected by defendant based upon their contention that this dental work was an excluded charge from their coverage.

Plaintiff filed a Motion for Summary Judgment and affidavits of plaintiff and Dr. Guidry in support thereof! A Motion for Summary Judgment was likewise filed by the defendant with an affidavit in support thereof. The trial court denied plaintiff’s Motion for Summary Judgment and granted defendant’s Motion for Summary Judgment. Judgment was signed on June 18, 1981. The plaintiff has perfected this appeal from the judgment of the trial court. We affirm.

The plaintiff contends that the trial court erred in granting defendant’s motion for summary judgment based on an erroneous interpretation of LSA-R.S. 22:213.1 and the insurance policy.

LSA-R.S. 22:213.1 states the following: § 213.1 Applicability of policy to dental care
Whenever the terms “physician” or “medical doctor” are used in any accident and sickness policy, medical service plan, or other contract providing for the payment of surgical procedures which are specified in the policy or contract or are performed in an accredited hospital in consultation with a licensed physician and are within the scope of a dentist’s professional license, said terms shall be construed to include a dentist, licensed under the laws of the State of Louisiana governing the practice of dentistry under Chapter 9, Title 37, Louisiana Revised Statutes, who performs such specified procedures.
This section shall be applicable only with respect to policies delivered or issued for delivery in this state with an initial inception date on or after July 31, 1974; provided that whenever the carrier of said policy, plan, or contract provides for a dental program therewith, or by a supplementary policy, plan, or contract, then the payment of benefits for the surgical procedures mentioned hereinabove shall be made pursuant to the provisions of the dental program of said carrier. Added by Acts 1974, No. 544, § 1.

Plaintiff argues that the plain meaning of LSA-R.S. 22:213.1 is that if a policy of insurance uses the term “physician” or “medical doctor”, (the policy at issue uses the term physician) and the policy provides for payment of “surgical procedures”, then services performed by qualified dentists are covered.

Our reading of the statute indicates that the statute requires that the policy provides for the payment of surgical procedures “which are specified in the policy or contract or are performed in an accredited hospital in consultation with a licensed physician”.

The group insurance policy involved is very clear in its exclusion of benefits for the care and treatment of teeth. The pertinent exclusion provisions of the policy are as follows:

“The following ‘excluded charges’ are specifically excluded from coverage:
All charges which are not specifically included in the definition of Eligible Charges hereinabove set forth and in addition any charges incurred by the employee for his own sickness or injury or for the sickness or injury of a family member while the employee or family member is insured for Major Medical Expense Benefits:
(1) for the care and treatment of the teeth, gums or alveolar process, or for dentures, appliances or supplies used in such care and treatment except for hospital charges incurred while a resident patient and provided the expenses were expenses incurred as a result of and within twelve months after an accident suffered while insured hereunder for treatment of injuries to natural teeth including replacement of such teeth, or for setting of a jaw fractured or dislocated in such accident; ...”

Clearly appellant’s contention that if a policy of insurance uses the term “physician” or “medical doctor” then services provided by a qualified dentist are covered is erroneous. Therefore, the only question is to determine the applicability of the statute to examine whether the policy had a specific provision covering the services rendered. It is clear from our review of the record that appellant did not have his dental work performed in a hospital and furthermore the work involved was specifically excluded under the policy.

Our interpretation of the statute is that it provides that benefits otherwise payable shall not be denied solely by the reason of the service being performed by a dentist. For example, if the insurance policy would normally provide coverage for the setting of a fractured jaw by a licensed physician, said benefits would not be denied because the service was performed by a dentist.

This interpretation of the intent and purpose of LSA-R.S. 22:213.1 is further supported by the Fourth Circuit in Davey v. Louisiana Health Service and Indemnity Company, 357 So.2d 1170 (La.App. 4th Cir. 1978), writ refused, La., 359 So.2d 194. While we recognize that Davey, supra, was not decided on the basis of the statute, due to the fact that the policy was issued prior to the effective date of the statute the Fourth Circuit did state its interpretation of the statute. The court made the following comment at 357 So.2d 1172:

“By La. Acts 1974, No. 544, § 1, now codified as La.R.S. 22:213.1 (Supp.1977), the legislature sought to prevent the refusal of insurance companies to pay claims for surgical procedures by dentists.”

LSA-R.S. 22:213.1 does not require the inclusion of dental coverage in all policies of insurance issued in Louisiana and therefore, as the services rendered in the instant matter were clearly excluded, the trial court did not err in granting defendant’s motion for summary judgment.

Appellant’s request for attorney’s fees is moot in light of our determination as to coverage of the policy.

For the reasons assigned, the judgment of the trial court is affirmed. All costs of this appeal are assessed against the plaintiff.

AFFIRMED.


author: CULPEPPER, Judge.

text:
    Joseph BELLARD, on Behalf of his minor son, Gregory BELLARD, Plaintiff & Appellant, v. DELTA POLYMERS, INC., et al., Defendants & Appellees.
    No. 8637.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1982.

      Benjamin O. Burns, Lafayette, for plaintiff & appellant.
    Voorhies & Labbe, William M. Bass, Lafayette, Doyle, Simmons & Jantz, James B. Doyle, Baton Rouge, for defendants & ap-pellees.
    Before CULPEPPER, SWIFT and DOU-CET, JJ.
   CULPEPPER, Judge.

Joseph Bellard filed this suit on behalf of his minor son, Gregory Bellard, alleging that on August 15, 1979 while in the course and scope of his employment with the defendant, Delta Polymers, Inc., Gregory suffered partial amputation of two fingers of his right hand. Plaintiff prays for workmen’s compensation benefits for his son. In the alternative, and in the event the court should find that plaintiff is not entitled to workmen’s compensation benefits, he seeks damages in tort.

The defendant employer and its general liability insurer moved for partial summary judgment dismissing the alternative tort claim on the grounds that the deposition of Gregory Bellard shows that at the time of the accident Gregory was an employee of Delta Polymers, Inc., and therefore plaintiff’s exclusive remedy is for workmen’s compensation benefits. The plaintiff filed no counter-affidavits or other evidence in opposition to the motion for summary judgment. After a hearing on the motion, the trial judge found the deposition of Gregory Bellard shows the injury occurred during the course and scope of his employment at Delta Polymers, Inc., and, there being no evidence submitted by the plaintiff to the contrary, there is no genuine issue of material fact. Under these facts, the judge held that under LSA-R.S. 23:1032 plaintiff’s exclusive remedy is for workmen’s compensation benefits. Accordingly, the district court rendered partial summary judgment dismissing plaintiff’s alternative demand for damages in tort. Plaintiff appealed.

On appeal, plaintiff admits the deposition of Gregory Bellard shows he was working in the course and scope of his employment with Delta Polymers, Inc. at the time of the accident. However, plaintiff contends in his brief that neither he nor Gregory’s mother consented to or had knowledge of the fact that their minor child was employed in a dangerous occupation, so they did not elect for their son to come under the act. Plaintiff cites Alizzi v. Employers Insurance of Wausau, 351 So.2d 258 (La. App.3rd Cir. 1977) in which a 12-year-old boy was killed in a motor vehicle accident during the course and scope of his employment as a “chicken catcher.” The parents sued in tort, or, alternatively, for workmen’s compensation benefits. After a trial on the merits, the district court held under LSA-R.S. 23:1039 that there was a presumption that the parents had elected the employment be subject to the provisions of the Workmen’s Compensation Act. A divided 5-judge panel of this court reversed, holding that since the parents did not consent to or have knowledge of the employment of their child until after his death, they had no opportunity to make the election provided in R.S. 23:1041 until after he was killed, and that the parents then chose not to have the employment come under the Workmen’s Compensation Act. It is noteworthy that Act No. 583 of 1975 repealed LSA-R.S. 22:1038-1043, relating to election of coverage and its effects. However, this does not affect our opinion in the present case.

LSA-R.S. 23:1044 was not repealed. It provides that a person injured at work for another in any trade or business is presumed to be an employee of that business and to be covered by workmen's compensation. Jurisprudence under Section 1044 places the burden of proof on a person contending the Workmen’s Compensation Act does not apply. Gaspard v. Travelers Insurance Company, 284 So.2d 104 (La. App.3rd Cir. 1973). Thus, in the present case the burden was upon the plaintiff to show that his son, Gregory Bellard, was not an employee subject to the act. As stated above, plaintiff introduced no counter-affidavits or other evidence in support of his contention in his brief that the parents did not consent to nor have knowledge of Gregory’s hazardous employment. On the contrary, plaintiff alleges in his principal demand in this case that Gregory was employed. Gregory’s deposition states that he was 16 years of age and had worked in a Popeye’s Fried Chicken restaurant and that he learned of the job opening at Delta Polymers, Inc. through a neighbor. He applied for the job as a janitor and clean-up man working from about 8:00 p. m. until 11:00 p. m. each night. These hours suited him because they came after his regular football practice at high school. Although Gregory does not expressly state in his deposition that his parents consented to or had knowledge of his employment by the defendant, he does not state or even imply that they did not consent or have knowledge.

In the recent case of Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772 (La.1980), the court held that under LSA-C.C.P. Article 967 the burden is on the mover for summary judgment to prove that there are no genuine issues of material fact, and only if the mover’s evidence is sufficient to make out a prima facie case does the burden shift to the opposing party to present evidence showing that material facts are still at issue.

Applying this rule to the present case, the deposition of Gregory Bellard, which was introduced into evidence to support defendant’s motion for summary judgment, clearly makes out a prima facie case that Gregory was working in the course and scope of his employment by defendant at the time of the accident and was therefore subject to the act. The burden shifted to the plaintiff to present evidence showing that there were genuine issues of material fact as to this employment and the application of the Workmen’s Compensation Act to the accident. Plaintiff having failed to introduce any evidence, there is no genuine issue of material fact, and defendant is entitled to summary judgment as a matter of law.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the plaintiff-appellant.

AFFIRMED.


text:
    Marguerite Faith Poole Basinger HEINBERG, Plaintiff-Appellant, v. Charles Richard POOLE, Defendant-Appellee.
    No. 8651.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1982.

      Gold, Little, Simon, Weems & Bruser, John F. Simon, Alexandria, for plaintiff-appellant.
    Garrett, Ryland & Nunnally, Charles F. Nunnally, III, Alexandria, for defendant-appellee.
    Before GUIDRY, CUTRER and STOKER, JJ.
   CUTRER, Judge.

Marguerite Poole Heinberg brought suit against her father, Charles Richard Poole, alleging two causes of action. Plaintiff seeks a usufructuary accounting and judgment for an overdue personal debt.

Plaintiff alleges that her mother died in 1975. She was survived by her husband, the defendant, and two children, the plaintiff and a brother. A judgment of possession was signed recognizing defendant’s one-half interest in the community property of that marriage and defendant’s usufruct over his children’s (plaintiff and her brother) share of the community property. Plaintiff alleges that defendant remarried in 1978, thus terminating the usufruct over the property owned by her. Plaintiff filed suit seeking an accounting from defendant, as usufructuary of her property.

Plaintiff also alleges that on May 25, 1978, in Alexandria, Louisiana, she lent defendant $4,000.00 which was to be repaid within a reasonable time. She alleges that defendant has refused to repay the loan after several requests. Plaintiff seeks to recover the alleged $4,000.00.

Plaintiff alleges that defendant was a resident of Texas at the time suit was filed and proceeded under the provisions of the Louisiana Long Arm Statute, LSA-R.S. 13:3201 et seq. The defendant filed a decli-natory exception of lack of personal jurisdiction alleging that he was a nonresident being a resident and domiciliary of the State of Texas for more than two years. After a hearing the trial court sustained the exception and dismissed plaintiff’s suit. Plaintiff appealed. We reverse and remand.

The issue presented is: Whether the defendant is amenable to the jurisdiction of the district court under the provisions of LSA-R.S. 13:3201 et seq.

The only evidence presented at trial of the exception was the judgment of possession rendered in the Succession of Jacqueline F. Poole. We are relegated to a consideration of this judgment of possession and the allegations of the petition to make our determination of jurisdiction in each of the alleged causes of action. Morrison v. H. B. Mitchell Const. Co., 369 So.2d 1102 (La.App. 1st Cir. 1979).

JURISDICTION OF THE SUIT FOR AN ACCOUNTING

Plaintiff alleges that defendant, as usu-fructuary of her portion of her deceased mother’s community property, owes her an accounting as the usufruct has been terminated by defendant’s subsequent marriage. The judgment of possession reflects that a part of the immovable property over which defendant had a usufruct is located in Rap-ides Parish, Louisiana.

LSA-R.S. 13:3201 reads, in part, as follows:

“A court may exercise jurisdiction over a nonresident, who acts directly or by an agent, as toa cause of action arising from the nonresident’s
* * * * * *
(e) having an interest in, using, or possessing a real right or immovable property in this state.” (Emphasis added.)

In Soileau v. Evangeline Farmer’s Coop, 386 So.2d 179, 182 (La.App. 3rd Cir. 1980), this court stated as follows:

“It is well settled that the legislative intent in enacting this statute was to extend personal jurisdiction of Louisiana courts over non-residents to the full limits of due process, i.e., to any non-resident who has ‘minimum contacts’ with this state. Drilling Engineering, Inc. v. Independent Indonesian American Pet. Co., 283 So.2d 687 (La.1973), and Aucoin v. Hanson, 207 So.2d 834 (La.App. 3rd Cir. 1968). This jurisprudence requires a liberal interpretation of LSA-R.S. 13:3201 in favor of finding jurisdiction. Adcock v. Surety Research & Inv. Corp., 344 So.2d 969 (La.1977); Latham v. Ryan, 373 So.2d 242 (La.App. 3rd Cir. 1979).
“The finding of jurisdiction over nonresidents involves an evaluation of the factual circumstances of the case in light of federal constitutional principles. In order for the proper exercise of jurisdiction in personam over a non-resident there must be sufficient minimum contacts between the non-resident defendant and the forum state to satisfy due process and ‘traditional notions of fair play and substantia] justice’ as required by Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977); International Shoe Company v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); and McGee v. International Life Insurance Company, 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). Whether or not a particular defendant has sufficient minimum contacts with a state is to be determined from the facts and circumstances peculiar to each case. Drilling Engineering, Inc. v. Independent Indonesian American Pet. Co., 283 So.2d 687 (La. 1973).”

In the case at hand, the suit for accounting arises out of a usufruct over immovable property that was conferred upon defendant by the judgment of possession emanating from the succession of his deceased wife. The immovable property was located in Rapides Parish, Louisiana. The usufruct, a real right, terminated upon remarriage, which termination gives rise to a cause of action for an accounting. The plaintiff’s cause of action clearly arises from the non-resident defendant’s “having an interest in, using, or possessing a real right or immovable property.” The trial court erred in sustaining the exception of lack of jurisdiction as to this cause of action. The judgment of the trial court will be reversed in this regard.

SUIT FOR THE $4,000.00 DEBT

Plaintiff’s petition alleges:

“2.
“That on or about May 25, 1978, plaintiff loaned the sum of Four Thousand ($4,000.00) Dollars to the defendant herein, and the loan transaction took place in the City of Alexandria, Rapides Parish, Louisiana.
“3.
“That no written evidence of the loan was given, but defendant agreed to repay the loan within a reasonable period of time.”

On appeal plaintiff contends that the district court has jurisdiction over the defendant for the suit on the loan as such loan amounted to a “transaction of business” in Louisiana, citing LSA-R.S. 13:3201(a), which reads as follows:

“A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from the nonresident’s
(a) transacting any business in this state...

The allegations of the petition clearly reflect that the $4,000.00 loan transaction took place in Alexandria, Rapides Parish, Louisiana. When the defendant effectuated this $4,000.00 loan transaction, such activity amounted to a “transaction of business” in that parish according to the provisions of LSA-R.S. 13:3201(a). Under these circumstances the trial court had jurisdiction over the defendant in this cause of action. The trial court’s ruling, in this regard, will also be reversed.

For the reasons assigned, the judgment of the trial court, sustaining the exception of lack of jurisdiction and dismissing the plaintiff’s suit, is reversed and set aside. The suit is remanded to the district court for further proceedings according to law and the views expressed herein. Costs of this appeal are to be paid by defendant-ap-pellee.

REVERSED AND REMANDED.

      . LSA-C.C. art. 535 provides:
      “Usufruct is a real right of limited duration on the property of another. The features of the right vary with the nature of the things subject to it as consumables or nonconsumables.” (Emphasis added.)


author: SWIFT, Judge.

text:
    Jeffery PAYTON, Plaintiff-Appellant, v. DUNHAM-PRICE, INC., Defendant-Appellee.
    No. 8654.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1982.
    Jones, Jones & Alexander, Glenn W. Alexander, Cameron, for plaintiff-appellant.
    Plauche, Smith, Hebert & Nieset, Reid K. Hebert, Lake Charles, for defendant-appel-lee.
    Brame, Bergstedt & Brame, David B. McCain and James R. Morris, Lake Charles, for intervenor-appellee.
    Before: CULPEPPER, SWIFT and DOUCET, JJ.
   SWIFT, Judge.

This is a tort suit in which the plaintiff, Jeffery Payton, seeks to recover damages from the defendant, Dunham-Price, Inc., for personal injuries sustained in an accident at a construction site in Calcasieu Parish. The plaintiff has appealed from an adverse judgment. We affirm.

The accident occurred at about 11:00 a. m. on August 15, 1978, when Payton was working as a cement finisher’s helper for Bargeman’s Plumbing and Cement Finishing Company, laying a concrete slab. The concrete was being supplied and delivered by Dunham-Price. The procedure employed was for the cement trucks to back up to where the slab was to be laid, with the cement finishers giving the drivers hand signals to direct their proper placement. Once a truck was located for pouring the driver would exit the cab, go to the back of the truck and fold down the chute used in unloading the concrete.

On the morning of the accident two Dun-ham-Price trucks had delivered their loads and left. When the third truck arrived and before the driver got out, the plaintiff attempted to pull a lever at the rear of the truck to enable the chute to swing horizontally. His co-worker, Ivory Burnett, proceeded to fold down the lower section of the chute. In the process the plaintiff’s hand was caught at the hinge between the two chute sections, traumatically amputating two of plaintiff’s fingers.

The issues presented to this court are whether the trial court erred in determining that: (1) The defendant and its employee were not negligent; (2) The lever was not defective; and (3) The accident was caused by the combined negligence of the plaintiff and his co-employee in unfolding the chute.

The plaintiff contends that the driver for Dunham-Price was negligent in failing to exit the truck immediately upon arrival in order to set up the chute for pouring the concrete. He said that because it was hardening rapidly, it was necessary for plaintiff and Burnett to go ahead and get the chute in place. However, both of these persons and their employer testified that this was not their job. The chute was always unfolded and positioned by the truck drivers. The plaintiff admitted that the driver had neither told nor authorized him or Burnett to unfold the chute. He also acknowledged that he had never done this on one of the defendant’s trucks before.

The testimony at the trial indicated that at most two or three minutes elapsed between the time the truck stopped and when plaintiff attempted to move the lever. The driver stated that after stopping he logged his arrival time, exited the cab and turned on the water pressure at the side of the truck. He said this was required and that there was no unusual delay in the procedure which he followed. When he proceeded to the rear of the truck he saw plaintiff’s co-employee flip the lower chute over and then he heard the plaintiff scream. The driver stated that he had no prior knowledge that the plaintiff or the other man were attempting to pull the chute down. The plaintiff testified that he knew Burnett was trying to fold the chute down and saw him raise it up, but that he did not know his co-worker was going to let the chute drop on his hand.

The record does not support plaintiff’s contention that his actions were necessary to prevent the cement from hardening before it could be poured. Burnett indicated they were in a hurry to get on with the work in order to get out of the sun into the shade.

Concerning the issue of whether the lever at the rear of the truck was defective, the plaintiff said he attempted to pull the lever in order to swing the chute to the driver’s side of the truck, but that the lever was stuck, probably because of concrete lodged at the base of the lever. In order to apply more pressure on the lever he placed his other hand at the end of the upper chute where it was mashed. The driver of the truck testified that he had never experienced any mechanical difficulty with the equipment at the rear of the truck, including the lever, either before or after the accident when he finished unloading the concrete.

We are in full accord with the following findings of the trial court:

“THE COURT: I find no negligence on the part of the defendant Dunham-Price. I find no defect in the lever. I think that whatever difficulty that the plaintiff and Mr. Burnett may have had in operating the lever was caused by their, possibly, haste as well as their unfamiliarity with this piece of equipment. But there was no defect that would call for the application of strict liability in this case. I do not find that the lever, defective or otherwise, was the cause, in fact, of the accident. The cause in fact of the accident, in the court’s opinion, was the combined negligence of Mr. Burnett and the contributory negligence of the victim.”

For the foregoing reasons the judgment of the district court is affirmed at appellant’s costs.

AFFIRMED.


text:
    Albert R. POWELL, Plaintiff-Appellant, v. FLOTATION SERVICES, INC., Defendant-Appellee.
    No. 8656.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1982.
    Writ Denied June 4, 1982.

      J. Wayne Landry, New Iberia, for plaintiff-appellant.
    Jack J. Cousin, New Iberia, for defendant-appellee.
    Before GUIDRY, CUTRER and STOKER, JJ.
   CUTRER, Judge.

Albert Powell (Powell) brought suit against Flotation Services, Inc. (Flotation) seeking past due wages, penalties and attorney’s fees under the provisions of LSA-R.S. 23:631 and 632. The trial court rendered judgment in favor of Powell in the amount of $370.18 as past due wages and attorney’s fees in the amount of $750.00. Statutory penalties were denied by the trial court which recognized the equitable defenses raised by Flotation. Powell appealed seeking penalties. Flotation answered the appeal contending that Powell is entitled to no recovery. We amend and affirm.

The facts of this case are as follows:

Powell was employed by Flotation as a boat captain on October 16, 1979. He was assigned to Flotation’s towboat, the “Sassy Queen,” for a fourteen-day-on and seven-day-off shift at a rate of $100.00 per day. Two captains were assigned to the towboat at all times. Each captain worked six hours on and six hours off during the operation. As Powell began his service, he was working aboard the boat with Captain Paul Ba-bineaux. The “Sassy Queen” was delivering a loaded barge to Houston, Texas.

In the early morning of October 23,1979, a scheduled crew change was to take place near Boliver, Texas. Babineaux was to be replaced by Mr. A1 Fuselier and then the “Sassy Queen” would continue its voyage to Houston. In order to facilitate the change, the barge was tied to a pile cluster owned by Houston Oil & Mineral Docks. The towboat was separated from the barge. The towboat then went to the other side of the ship channel and took on Fuselier. During the crew change, Babineaux was on duty (as it was after 6:00 A.M.) and Powell was down below asleep.

Later, Powell heard two dock workers from Houston Oil & Mineral Docks tell Fuselier that the “Sassy Queen” had damaged the pile cluster. Upon the reunion of the barge and towboat, Powell noticed the pile cluster to be leaning and slack was taken out of the ropes securing the barge. No report was made to Flotation by any captain concerning this incident at that time.

Powell and Fuselier then continued north from Boliver to Houston. Babineaux went to his home near New Iberia. Upon reaching Houston on Friday morning, October 26, 1979, Powell quit his job and left the “Sassy Queen.” Fuselier called Flotation via the radio informing them of Powell’s departure. As no captain can work more than twelve hours per day and the barge had to be unloaded with Fuselier as the pumpman, a substitute captain had to be obtained so that the “Sassy Queen” would not remain idle. Flotation was able to reach Babi-neaux and have him driven from New Iberia, Louisiana to Houston as Powell’s replacement.

The following morning Powell went to Flotation’s office in New Iberia to collect his pay for ten days work. He was given a check for eight days work (less undisputed deductions) in the amount of $615.69. He was told that the remaining two days pay would be forthcoming at the end of the next payroll, some two weeks hence. Powell returned to his home in Vidor, Texas, where he cashed his check.

In the interim, Flotation stopped payment on the check they had issued to Powell. Flotation reissued a check in the amount of $359.69 which reflected a $250.00 deduction as the cost of transporting Babi-neaux to Houston. Powell accepted the check. In early November 1979, Flotation was informed by telephone of the alleged accident concerning damage to the pile cluster owned by Houston Oil & Mineral Docks. The alleged claim was for $7,800.00. Flotation then decided to get statements from all captains concerned with the. incident. Fuselier and Babineaux complied with Flotation’s request and gave statements. Powell told Flotation personnel he had no personal knowledge of an accident, as he was asleep, and refused to give a statement. Flotation then refused to tender the check for Powell’s last two days wages of $120.18 ($200.00 less Federal taxes and $60.00 medical exam, as Powell had not remained in Flotation’s employ for longer than 30 days as required by his employment contract), until such a statement was given.

Powell then filed this suit to recover the money withheld by Flotation for transport services in replacing him, the amount of the last check due, penalties and attorney’s fees.

The substantial issue on appeal is whether penalties should be awarded to Powell.

The facts and circumstances of this case are such that, for clarity, we must divide the penalty inquiry into two parts. We shall first treat the question of whether the withholding of the transportation costs for Powell’s replacement after he quit his job, would serve as an equitable defense to a claim for penalties.

We shall then review the question of whether the withholding of Powell’s wages for the remaining two days, on the ground that Powell refused to give a statement regarding the alleged accident, would serve as an equitable defense to Powell’s claim for penalties.

WITHHOLDING TRANSPORTATION COSTS AS AN EQUITABLE DEFENSE

LSA-R.S. 23:632 is a penal statute and therefore must be strictly construed. Equitable defenses are available and penalty wages are not to be absolutely imposed irrespective of circumstances. Doucet v. Plantation Manor, Inc., 382 So.2d 984 (La. App. 1st Cir. 1980). In order for an employer to be liable for penalty wages, the employer must have been motivated by bad faith or must be found to have acted in an arbitrary or unreasonable manner. It is only a “good faith non-arbitrary defense to liability for unpaid wages; i.e., a reasonable basis for resisting liability” which will permit the courts to excuse the employer from the imposition of penalty wages. Carriere v. Pee Wee's Equipment Co., 364 So.2d 555 (La.1978); Letulle v. S & E Oil Co., Inc., 387 So.2d 703 (La.App. 3rd Cir. 1980).

With these principles before us, we examine the facts to determine if Flotation was in good faith or had a reasonable basis for withholding the transportation costs from the check issued to Powell.

The facts show that it was necessary that a replacement for Powell be made immediately after Powell quit his job and departed the boat. At the time of Powell’s departure the boat was moored at the dock in Houston unloading cargo. It took approximately eight hours to unload. The boat was scheduled to leave the Houston dock immediately for another destination. Without an immediate replacement for Powell, the boat would have had to remain at the dock. The boat could not leave without being staffed with a captain. This delay would jeopardize the charter of the boat as well as cost Flotation $900.00 per day for “down time.”

Powell’s sudden departure without prior notice was the cause of Flotation’s transportation expenses to replace Powell with another captain. Flotation’s deduction for these transportation expenses from Powell’s check was based upon reasonable grounds. Flotation reasonably believed that it was justified in withholding this sum from Powell’s wages. This constitutes an equitable defense and a penalty will not be awarded on this ground. Powell is entitled, however, to recover the transportation costs that were withheld since Flotation filed no reconventional demand nor any affirmative defense which would serve as a basis for denying Powell recovery of these expenses.

POWELL’S REFUSAL TO GIVE AN ACCOUNT STATEMENT AS AN EQUITABLE DEFENSE FOR WITHHOLDING THE REMAINING TWO DAYS OF POWELL’S WAGES

When Powell made demand for his ten days of wages, he was told that only eight days would be paid at that time. The remaining two days would be paid at the next pay schedule, two weeks hence. It was admitted that the full wages could have been made on the day of demand, but it was more convenient to pay the two days on the succeeding pay schedule, the regular procedure of Flotation in payment of wages.

The statute in question requires that the employer pay to an employee, who is discharged or resigns, “the amount then due under the terms of the employment ... not later than three days following the date of discharge or resignation.” The employer’s rules, policies or procedures for issuing checks for wages shall not have the effect of extending the three day pay period set forth for employees who have been discharged or resigned. Duhon v. Prof Erny’s Music Company, Inc., 328 So.2d 788 (La.App. 3rd Cir. 1976). Under these principles Flotation was arbitrary in deferring for two weeks the payment of the remaining two days wages.

In early November, near the scheduled pay period, Flotation received a telephone call from Houston Oil & Mineral Docks contending that a piling cluster at their dock had been damaged when the barges were tied there while making the crew change on October 25th. Flotation then set out to get statements from the three captains, Powell, Babineaux and Fuselier, as to whether the “Sassy Queen” or its barge may have caused the damage. Powell refused to give such a statement. He contended that he was below deck asleep at the time of the crew change and had no personal knowledge of any such damage. The remaining captains each gave statements. These statements, however, are not in the record.

Flotation issued orders to its bookkeeper that Powell’s remaining wages were to be withheld until Powell did give such a statement. The officer of Flotation testified that Flotation wanted the statement regardless of whether Powell had any personal knowledge of the accident. Powell’s refusal to give a statement continued and the remaining wages were not paid up to the time of trial, June 15, 1981.

The question then arises as to whether Flotation can obviate further penalties on the basis that Powell refused to give such a statement.

A very similar fact question was presented to this court in the case of Duhon v. Prof Erny’s Music Company, supra. In that case, plaintiff brought suit for wages, penalties and attorney’s fees.

After terminating her employment, plaintiff went to defendant’s office demanding her wages. The office manager tendered to her a check for her net wages ($84.79) and requested plaintiff to complete and sign a “Removal from Payroll” form. Plaintiff refused to execute the form and payment of wages was withheld.

The “Removal from Payroll” form was furnished to employers by a governmental agency for the apparent purpose of facilitating the adjustment of rights between employee and employer at employment termination and to establish for unemployment benefit purposes, the reason for the termination.

In reaching a conclusion that defendant was not justified in withholding payment until the form was executed, this court stated that no law was cited to show that the employee must execute the form or that the employer must insist that the employee execute it. The court further stated as follows:

“Although we understand defendant’s desire to have the form completed and/or signed and think that perhaps plaintiff may have been somewhat uncooperative in her attitude, we do not think defendant was justified in its position. No case has been cited to us as precise authority for the situation herein. Analogous jurisprudence is contained in the cases of Young v. White Stores, 269 So.2d 266 (La.App. 3rd Cir., 1972) and Hendricks v. Air Lines, Inc., 234 So.2d 93 (La.App. 4th Cir. 1970). These cases held that company rules or policies as to procedures for issuing checks do not outrank or invalidate state law, that is, the continuing-wage penalty statute. Since the form was not required by law, we see little difference between the facts of those cases and the instant one. Accordingly, we conclude that defendant was not justified in withholding payment until the form was signed and/or completed.” 328 So.2d 788, 790.

In the case at hand the president of Flotation testified that Flotation’s liability insurance coverage contained a $5,000.00 deductible clause. He stated that it was the company practice to get accident statements from boat personnel in order to evaluate Flotation’s possible liability along with any liability of its insurer.

It is not contended by Flotation that there is any law which would require the execution of such accident statements. The purpose of the statements was to facilitate Flotation and its insurer in assessing their potential liability for accident damage. This accident report requirement is only a company policy, rule or procedure and, as such, the refusal of an employee to comply with it is not justification for withholding wages that are due. Flotation was not justified in making payment of wages conditioned upon the employee complying with a company policy, rule or procedure. Letulle v. S & E Oil Co., supra.

Although we understand Flotation’s desire to have the statement executed by Powell and that Powell was uncooperative in his attitude, these elements do not elevate an unjustified withholding of wage payments to a justified one. Flotation is subject to the payment of the full 90 days penalties. These wages had not been paid at the time of trial, more than lVá years after demand. The trial court judgment will be amended accordingly.

We note that LSA-R.S. 23:632 requires that any attorney’s fees assessed shall be taxed as costs. The trial court judgment erroneously awarded $750.00 attorney’s fees to Powell instead of taxing them as costs of court. We will amend the trial court judgment to comply with LSA-R.S. 23:632.

For the reasons set forth, the trial court judgment is hereby amended by adding penalties of $100.00 per day for ninety (90) days. Also, the trial court judgment is amended to reflect that the $750.00 attorney’s fees shall be taxed as costs of court. In all other respects the trial court judgment is affirmed. Costs of this appeal are to be paid by Flotation Services, Inc.

AMENDED AND AFFIRMED.

      . LSA-R.S. 23:631 provides, in part:
      “A. Upon the discharge or resignation of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, not later than three days following the date of discharge or resignation. ...”
      LSA-R.S. 23:632 provides:
      “Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney’s fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.” (Emphasis added.)

      . Paul Babineaux was erroneously referred to as “Mr. Trahan” by Powell during his testimony at trial.