author: EDWARDS, Judge.

text:
    Melton H. ACHORD v. H.E. WEISE CONSTRUCTION COMPANY, et al.
    No. 15118.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Rehearing Denied Dec. 16, 1982.

      A. Wayne Stewart, Denham Springs, for plaintiff-appellant.
    L. Michael Cooper, Baton Rouge, for defendant.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   EDWARDS, Judge.

Plaintiff, Melton H. Achord, brought this suit for workmen’s compensation benefits against his employer, H.E. Weise Construction Company and its insurer, Employers National Insurance Company. Plaintiffs petition alleged that he had suffered permanent and total disability from an injury to his back and shoulder caused by an accident arising out of the course and scope of his employment: Plaintiff also sought an award of penalties and attorney fees.

The trial judge found plaintiff to be totally and permanently disabled as a result of his accident while working for Weise and awarded compensation benefits at the maximum legal rate, $148.00 per week. Additionally, the trial court awarded penalties and attorney fees. Judgment was rendered against Employers National alone, since Weise was never served with the petition. Employers National has suspensively appealed.

The record reflects that at the time of his accident, plaintiff had been employed by Weise as a carpenter for approximately ten weeks. Plaintiff has an extensive history of prior accidents and medical problems which include four back operations and serious damage to his right chest and shoulder. On November 23, 1979, while helping to construct some scaffolding, plaintiff fell to the ground from a height of approximately sixteen feet. Plaintiff landed in a sitting position on a concrete surface. Dr. Joe Morgan, an orthopedic surgeon who saw plaintiff at the hospital emergency room and treated him thereafter, testified that as a result of the fall, plaintiff suffered a cervical strain, contusion of the right shoulder, lumbosacral strain and laceration of the right leg. Plaintiff has not returned to work since his accident and testified at trial that he suffers such severe pain in his back and down his legs that he is unable to do so.

As noted by the trial judge, there is no doubt that Achord is totally and permanently disabled. Defendant does not challenge that finding. The central issue to be decided was whether that disability stems from plaintiff’s preexisting condition or is a result of the accident which occurred while plaintiff was working for Weise. The trial court stated that Achord had shown that he was performing all of the duties of his job prior to the accident and concluded that plaintiff had established a causal connection between the accident and his disability.

Defendant has raised a number of issues on appeal. Employers National contends that the trial court erred in concluding that Achord was rendered permanently and totally disabled by virtue of the November 23, 1979, accident. Defendant also asserts that penalties and attorney fees were erroneously awarded. Additionally, defendant maintains that the trial court erroneously calculated the amount of plaintiff’s award and improperly required defendant to pay past medical expenses.

•CAUSAL CONNECTION BETWEEN ACCIDENT AND DISABILITY

The primary issue on appeal is whether or not the trial court committed error in holding that plaintiff’s disability was caused by the November 23, 1979, accident. Plaintiff has a previous history of serious back and shoulder injuries. In 1963 Achord suffered a ruptured disc in his back. As a result of that injury, he underwent four back operations between 1963 and 1965, including a laminectomy and a spinal fusion. In September of 1977, plaintiff suffered a serious injury when a tractor which he was operating overturned on top of him. In that accident plaintiff sustained a “crush injury” to the right chest and shoulder, resulting in damage to the nerves and muscles in that area.

Following his tractor accident in September of 1977, plaintiff did not return to work for approximately two years. In November of 1977, he was granted Social Security disability benefits. Achord returned to work as a carpenter in September of 1979, some ten weeks before the November 23 accident. Achord and his wife testified that before his return to work in September of 1979, plaintiff built a house for them to live in. According to plaintiff, when he returned to work after the tractor accident, he was able to perform all of his job duties without any substantial pain.

Ronnie Hall and Dennis Bornes, co-workers of plaintiff, testified at trial. Hall testified that he worked with Achord frequently during the ten weeks that plaintiff worked for Weise prior to his fall from the scaffolding. Hall testified that plaintiff never failed to perform his duties, which included the lifting and carrying of large boards as well as the use of a hammer and a 16-pound maul. Bornes testified that he had worked with plaintiff on one occasion prior to his fall and that plaintiff did his job as well as any other man.

The testimony of a number of medical experts was admitted at trial by way of deposition. The consensus of the experts was that plaintiff had recovered from the effects of his November 23, 1979 fall and that his remaining disability was the result of his pre-existing condition. Dr. Thomas Davis, plaintiff’s family doctor, was alone among the experts in concluding that plaintiff’s fall contributed to his continuing disability. The remainder of the experts testified that plaintiff’s pre-existing condition made him totally and permanently disabled and incapable of working as a carpenter prior to his accident. They did concede, though, that if plaintiff were working pain free as a carpenter prior to his fall and was unable to return to work after his fall because of pain, the accident did contribute to his disability. However, those witnesses testified that in their opinions Achord could not have been performing the duties of a carpenter prior to his accident without working in substantial pain.

Defendant contends that the trial court erred in accepting the lay testimony that plaintiff was performing his . job without substantial pain prior to his accident and in concluding that the accident bears a causal relation to his present disability. Employers National asserts that the medical testimony that plaintiff was disabled to perform the work of a carpenter prior to the accident should be accepted as conclusive.

The law is well-settled in cases involving aggravation to a pre-existing condition. A worker who is normally susceptible to disability from an accident is entitled to workmen’s compensation benefits even though the same accident or injury would have caused little or no harm to a healthy worker. Loyd v. Atlas Const. Co., 341 So.2d 1245 (La.App. 1st Cir.1976), cert. denied, 344 So.2d 4 (La.1977); Marcotte v. Atlas Const. Co., Inc., 340 So.2d 341 (La.App. 1st Cir.1976), cert. denied, 342 So.2d 676 (La.1977). An employer takes an employee as he finds him and is liable for compensation even when the disabling accident was such only because of a preexisting disorder in the employee. Crawford v. Al Smith P. & H. Service, Inc., 352 So.2d 669 (La.1977); St. Pe v. H.P. Foley Elec. Co., 341 So.2d 639 (La.App. 4th Cir.1977); Williams v. Liberty Mutual Insurance Company, 327 So.2d 462 (La.App. 3rd Cir.1976). It is also well-settled that workmen’s compensation benefits are payable when an occupational accident aggravates or accelerates a preexisting condition and produces disability. Crawford v. Al Smith P. & H. Service, Inc., supra; Chism v. Kaiser Aluminum & Chemical Corporation, 332 So.2d 784 (La.1976); Johnson v. Travelers Insurance Co., 284 So.2d 888 (La.1973).

The burden is upon the plaintiff to establish a causal relation between the accident and the disability complained of. Loyd v. Atlas Const. Co., supra; Francis v. Gerlach Meat Company, Inc., 319 So.2d 534 (La.App. 2nd Cir.1975), cert. denied, La., 322 So.2d 776. In each case, it is the totality of the evidence, medical and lay, which must be examined by the court in making its determination of whether to grant an award for disability. Crawford v. Al Smith P. & H. Service, Inc., supra; Tantillo v. Liberty Mutual Insurance Company, 315 So.2d 743 (La.1975).

In Tantillo v. Liberty Mutual Insurance Company, supra, the Louisiana Supreme Court made the following observation with regard to the weight to be given lay testimony when it conflicts with medical testimony:

“It is generally true that medical testimony which is not in conflict cannot be overcome by lay testimony. Nevertheless, in every case it is the totality of the evidence, medical and lay, which must be examined by the court in making its determination of whether to grant an award for disability. Great weight, almost to the point of exclusion of other evidence, is given to uncontradicted medical evidence which is directed toward a complex scientific question. However, in all cases, it is the judge’s function to determine the weight which is to be accorded the medical testimony as well as the lay testimony. Lay testimony has great probative value in establishing certain facts, such as the existence and location of pain and the actual ability or inability of a claimant to perform certain physical functions or to pursue his regular employment.” 315 So.2d at 748, 749.

As the Tantillo decision observes, one area in which lay testimony has great probative value'is in establishing the actual ability or inability of a claimant to pursue his regular employment. In the instant case, the lay testimony was offered for that very purpose. It established that Achord was able to and was performing all of the duties of his job as a carpenter prior to his accident. This testimony directly contradicts the medical testimony that plaintiff was totally and permanently disabled prior to his accident. The trial court chose to accept the lay testimony and concluded that there was a causal connection between plaintiff’s disability and his accident of November 23, 1979. On the basis of the evidence in the record, we are unable to say that the trial court was clearly wrong in that determination. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973).

PENALTIES AND ATTORNEY FEES

Defendant contends that penalties and attorney fees were improperly awarded because LSA-R.S. 23:1201.2, which authorizes such an award in instances of arbitrary or capricious failure to pay workmen’s compensation benefits, is applicable only to an employer which is not covered by insurance. Counsel for defendant argues that since Weise was covered by insurance and since the judgment was rendered against Weise’s insurer, there can be no liability for penalties and attorney fees under that statute. That portion of counsel’s argument is correct. However, counsel for defendant has overlooked the fact that LSA-R.S. 22:658 contains a similar provision for penalties and attorney fees in the event of an insurer’s failure to pay a claim when such failure is found to be arbitrary, capricious or without probable cause.

Plaintiff’s accident occurred on November 23, 1979. Defendant paid workmen’s compensation benefits from that date until June 27, 1980. Benefits were terminated on that date on the basis of medical reports received from Drs. John Fraser and Thomas Flynn. The report of Dr. Flynn, a neurosurgeon, was dated June 9, 1980. In it Dr. Flynn expressed his opinion that plaintiff’s back problems and disability were not a result of his November 23, 1979, fall but stemmed from his pre-existing condition. Dr. Fraser, an orthopedic surgeon, made his report on June 20,1980. In it he expressed his opinion that any problems which Achord was experiencing in his right shoulder and arm were directly related to the tractor accident.

The trial court concluded that the termination of compensation benefits was arbitrary and capricious for the following reason:

“The court is of the further opinion that if defendant had made a more careful review of all of the medical information and the facts of plaintiffs performance of his duties on the job, they [sic] would not have terminated his compensation. The court further feels that defendant’s failure to do so amounts to arbitrary and capricious conduct.”

A determination that discontinuance of benefits is arbitrary and capricious is a factual finding not to be disturbed unless manifestly erroneous. Richard v. Standard Fittings, 379 So.2d 33 (La.App. 3rd Cir.1979); Stubbs v. Parish of East Baton Rouge, 343 So.2d 258 (La.App. 1st Cir.1977), cert. denied, 345 So.2d 506 (La.1977). There is no such error in the instant case.

Defendant contends that termination of benefits was not arbitrary and capricious because it was done in reliance upon the letters from Dr. Flynn and Dr. Fraser. Those letters did not establish that plaintiff was not disabled; they merely attributed plaintiffs disability to his preexisting condition. Defendant was aware that plaintiff, despite his previous injuries, was working as a commercial carpenter for its insured prior to his fall. Had defendant checked with its insured and the insured’s employees it would have learned that for a period of about three months plaintiff had performed the strenuous duties of his job without problem. Thus, the insurer had knowledge of facts which contradicted the conclusions reached in the doctors’ reports. Additional facts, likewise contradictory to those reports, were available through rudimentary investigation. In terminating plaintiff’s compensation benefits, defendant chose not to conduct such an investigation into plaintiff’s pre-accident job performance and to rely solely upon the medical reports. Under these circumstances we cannot say that it was manifest error for the trial court to conclude that such actions amounted to an arbitrary and capricious termination of benefits. Thus, there is no error in the award of penalties and attorney fees.

Plaintiff has answered defendant’s appeal, seeking an increase in attorney fees for representation on appeal. We believe that an increase is warranted because the appeal has necessitated additional work on the part of plaintiff’s counsel. Under the circumstances, we conclude that an additional award in the amount of $1,500.00 should be made for attorney fees. The judgment will be amended accordingly.

AMOUNT OF PLAINTIFF’S AWARD

The trial court calculated plaintiff’s award on the basis of the statutory maximum amount of $148.00 per week. Defendant notes that plaintiff has been receiving Social Security disability benefits since November of 1977. Employers National contends that plaintiff’s benefits should be reduced pursuant to LSA—R.S. 23:1225, which provides as follows:

“The benefits provided for in this Sub-part B for injuries producing permanent total disability shall be reduced when anyone is entitled to and receiving benefits under 42 U.S.C. Chapter 7, Subehap-ter II, entitled Federal Old Age, Survivors, and Disability Insurance Benefits, on the basis of the wages and self-employment income of an individual entitled to and receiving benefits under 42 U.S.C. Section 423; provided that this reduction shall be made only to the extent that the amount of the combined federal and workmen’s compensation benefits would otherwise cause or result in a reduction of the benefits payable under the federal old age, survivors, and disability insurance act pursuant to 42 U.S.C. Section 424a and in no event will the benefits provided in this Subpart together with those provided under the federal law exceed those that would have been payable had the benefits provided under the federal law been subject to reduction under 42 U.S.C. Section 424a.”

Since plaintiff is receiving Social Security disability benefits, the amount of his workmen’s compensation benefits may be subject to reduction under the terms of LSA-R.S. 23:1225. However, defendant failed to present any evidence with regard to the amount of Social Security benefits which Achord was receiving or to the amount of reduction in compensation benefits which might be required. Since defendant failed in its burden of proof, there is no error in the district court’s judgment.

The trial court’s judgment awarded plaintiff $5,082.00 in back compensation. Defendant contends that this sum is erroneous and should actually be $4,989.71. In brief, plaintiff concedes that an error was made in calculating the amount of back compensation owed and that the proper figure is $4,989.71. The judgment of the trial court will be amended accordingly.

DURATION OF BENEFITS

The judgment of the trial court ordered Employers National to pay plaintiff the sum of $148.00 per week “for the remainder of Melton H. Achord’s life.” As defendant correctly points out, this award goes beyond what is authorized under LSA-R.S. 23:1221. That statute provides that an employee who is permanently and totally disabled shall receive benefits “during the period of such disability.” Such disability may or may not extend throughout the plaintiff’s lifetime. Therefore, the trial court’s judgment must be modified to award benefits only for the period of disability.

MEDICAL EXPENSES

The trial court’s judgment ordered defendant to pay “all past and future medical expenses.” Defendant contends that this portion of the judgment is erroneous because plaintiff failed to-prove any unpaid medical expenses related to the November 23, 1979, accident. Our review of the record reveals that plaintiff adequately proved the existence of unpaid medical bills related to his accident. That portion of the trial court’s judgment is correct.

DECREE

For the above and foregoing reasons, the judgment of the district court is amended by reducing the amount of back compensation owed to $4,989.71 and increasing the award for attorney fees to the sum of $4,500.00. That judgment is further amended to provide that plaintiff is entitled to benefits for permanent and total disability only for the period of such disability. As amended, the judgment is affirmed. Costs of the appeal are taxed against the appellant, Employers National Insurance Company.

AMENDED AND AFFIRMED.'

      . Plaintiff was still receiving Social Security disability benefits at the time of the accident in question. He testified that he returned to work under a Social Security rehabilitation program which allowed him a 9-month trial period in order to determine his ability to return to work.

      . LSA-R.S. 23:1221(2) provides as follows:
      “(2) For injury producing permanent total disability of an employee to engage in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience, sixty-six and two-thirds per centum of wages during the period of such disability.”


source: Caselaw Access Project

author: COLE, Judge.

license: Public Domain

text:
    James M. JUGE, Individually and as Administrator of the Estate of his Minor Child, James Christopher Juge: and Judy Juge, Individually v. Albert Preston CUNNINGHAM and Lafayette Insurance Company.
    No. 15121.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Rehearing Denied Dec. 16, 1982.

      Joseph A. Gladney & Assoc., Baton Rouge, for plaintiffs-appellants James M. Juge, Individually and as Administrator of the Estate of his Minor Child, James Christopher Juge and Judy Juge, Individually (Wife of co-plaintiff).
    Edward L. Levert, Jr., New Orleans, for defendants-appellees Albert Preston Cunningham and Lafayette Ins. Co.
    Before LOTTINGER, COLE and CARTER, JJ.
   COLE, Judge.

Plaintiffs contest the findings of the trial court as to defendants’ liability for the injuries to James Christopher Juge and as to the amount awarded Judy Juge for her injuries. The facts giving rise to this litigation are as follows:

On September 3,1977, plaintiff Judy Juge stopped her automobile on Perkins Road waiting for the car in front of her to make a left-hand turn onto Valley Street when a vehicle driven by defendant Albert Cunningham struck her from the rear. At the time Mrs. Juge was beginning her ninth month of pregnancy. At the scene of the accident Mrs. Juge complained of a headache and pain in her back. She was taken to Woman’s Hospital by ambulance and was admitted for overnight observation. Although she reported her abdomen had struck the steering wheel of the car there were no signs of fetal distress or of disengagement of the placenta. She was discharged the next day.

That day or shortly thereafter Mrs. Juge experienced slight vaginal bleeding (referred to in the medical profession as “spotting”) and was told by her doctor (Dr. Roy Rabalais) or his nurses she should stay in bed until the bleeding stopped. The spotting continued off and on for several weeks. On September 24th Mrs. Juge went into labor and shortly thereafter delivered a baby boy, James Christopher Juge. The child weighed five pounds, seven ounces and appeared to be normal.

Within a few weeks the Juges noticed the child was having “seizures” which involved a tensing of the body for a few seconds. After consulting several local pediatricians who were unable to diagnose the child, they sought help from Dr. Carmela Tardo, a physician with the Ochsner Clinic who specializes in child development. After careful examination and testing she diagnosed the child as having tuberous sclerosis. This is an inherited condition which involves overgrowth of tissue, particularly within the central nervous system. The child was found to be profoundly retarded and his condition was described as a permanent one.

Mrs. Juge filed suit against Mr. Cunningham for her injuries and her husband, James Juge, joined her as a plaintiff, suing for his own expenses and for injuries to the minor son. Plaintiffs alleged the child was seriously injured while in the uterus due to defendant’s negligence and as a result of the injuries suffered permanent damage.

At trial the defendant stipulated as to his liability. Therefore, the only issues before the court were the existence of and the extent of injuries to Mrs. Juge and to the child.

After hearing the evidence and examining the depositions of various doctors, the trial court rendered judgment in favor of plaintiffs for $5,824.12. This award included $5,000 for Mrs. Juge’s physical injuries and for her mental anguish associated with receiving an injury while pregnant. Mr. James Juge was awarded $824.12 in special damages. No award was given for injuries to the child because the court found plaintiffs failed to prove any injuries were caused by the accident.

After carefully reviewing the record we agree with the trial court plaintiffs failed to prove the child’s condition was caused or aggravated by the defendant’s negligence.

Dr. Carmela Tardo testified by deposition she had examined the child and diagnosed his condition as tuberous sclerosis. She testified the condition was not related to trauma but was an inherited birth defect. She stated unequivocally that in her opinion there was no relation whatsoever between the accident and the child’s condition.

Dr. Roy Rabalais, an expert in the field of obstetrics and gynecology, testified he was Mrs. Juge’s physician during her pregnancy but was out of town on the date of the accident. His colleague, Dr. Karl Pizzo-lato, examined Mrs. Juge at Woman’s Hospital and his records indicated he found no evidence of fetal distress. Further, there was no evidence of abruptio placenta (separation of the afterbirth) or of any uterine damage.

Dr. Rabalais examined Mrs. Juge on September 8, 1977, and found no evidence of bleeding. He was aware Mrs. Juge had called his office several times after the accident to report she was spotting but he was unsure as to the date of the initial call. She was instructed to stay in bed. When asked whether or not he felt the bleeding could have damaged the unborn child, he replied he felt it unlikely due to the very small amount of bleeding that occurred. Dr. Rabalais could not say for sure whether or not the accident had caused the bleeding at all. He noted any bleeding brought on by the accident would have likely occurred immediately and that it was not extremely uncommon for women to experience spotting in the late stages of pregnancy. Even assuming the bleeding was related to the accident he felt the specific cause was the jolt of the accident rather than any specific internal bruise or injury.

When asked whether or not he felt the accident caused the child to be born prematurely, he stated he did not think so. He felt the time period between the accident and the onset of labor (21 days) indicated there was no relation between the two events. If the accident had in fact caused the premature labor he felt the labor would have begun much sooner than it did. Although there was some confusion in the testimony concerning exactly how prematurely the birth occurred, Dr. Rabalais testified the expected date of birth was October 9. Therefore, the child was born two weeks and two days early. Dr. Rabalais stated this was not a remarkable occurrence in that many women give birth two weeks before or two weeks after their due date.

Dr. Emmanuel Shapira, a medical expert in pediatric pathology and genetics, testified by deposition. He agreed with the diagnosis of tuberous sclerosis and noted the evidence indicated the child was the first in his family to exhibit signs of the disease. Dr. Shapira acknowledged there was a possibility the trauma of the accident could have aggravated or accelerated the condition but he could not make any conclusive statements as to the actual effect the accident had on this child. When questioned as to the possible effects of Mrs. Juge’s bleeding he stated he did not have the information necessary to give an opinion, it would depend upon the amount of the bleeding and the existence of any signs of fetal distress. Although the attorney for plaintiffs repeatedly pressed Dr. Shapira to make some definitive statement concerning the possible or probable effects of the accident on the child’s condition, Dr. Shapira refused to do so, insisting any such opinion would be based upon speculation. Dr. Sha-pira stated:

“I think I understand your question but there are two unrelated events. One is an inherited disorder, tuberous sclerosis and one is an accident. How much to each of them and to what extent were expressed in a clinical features (sic) or the clinical expressions of the patient I don’t know.”

At the close of the deposition the following exchange between counsel and Dr. Shapira occurred.

“Q. You indicated several times that we are dealing with two different events, tuberous sclerosis and a potential possible trauma to the fetus. The courts and lawyers have to deal doctor with reasonable medical certainty when we talk about how an individual life has been affected as a result of an accident. You have told us that the child has tuberous sclerosis did that predate this accident?
A. That’s correct.
Q. And you have told us that you can’t tell if the accident itself increased, modified or otherwise aggravated the symptoms of that tuberous sclerosis?
A. That’s correct. I used the words accelerated or accentuated for presentation, but I don’t know.
Q. And you can’t tell us that with any reasonable medical degree of certainty?
A. That’s correct.
Q. That that has occurred?
A. I have only my doubt that I really don’t know.”

This evidence clearly shows plaintiffs failed to prove by a preponderance of the evidence the child’s condition was caused or aggravated by the accident. Although the child’s condition is a sad and unfortunate occurrence, we cannot hold defendant liable without adequate proof. The evidence establishes the disease is an inherited disorder that the child developed prior to the accident, and although the accident could have aggravated the condition, there was no evidence to show that this in fact happened.

Concerning Mrs. Juge’s own injuries, the following evidence was put forth. Mrs. Juge testified she experienced a severe headache and pain in her back immediately after the accident. In the period between the accident and the date of trial (February 19, 1981) she continued to experience headaches about three times a week as well as frequent backaches and occasional neck-aches. Dr. Samuel Irwin, an orthopedic surgeon, had treated Mrs. Juge approximately six times up until February of 1981, for her back and neck pains. His final opinion was Mrs. Juge had suffered a strain to her neck and lower back. He noted some of the pain could be caused by her weakened condition due to pregnancy. He stated the symptoms of a “whiplash” syndrome would be expected to subside six to eight weeks after the accident. In all of his examinations he could find no objective signs of any damage to the back or neck. He noted a pregnant woman is more susceptible to back strain and that after delivering a baby a woman’s abdominal muscles are weak so that any back condition may be aggravated.

Dr. David Shraberg, an expert in neurology and psychiatry, testified he had treated Mrs. Juge for headaches. He noted there was no evidence she struck her head during the accident and therefore he did not believe she had sustained a concussion. Although the initial headache she experienced immediately after the collision could have been related to the accident he felt the continuing headaches were caused by tension and depression. He believed Mrs. Juge suffered from depression as a result of her personal problems, including the emotional stress involved in caring for a seriously handicapped child.

Considering the foregoing evidence, we cannot say the trial court abused its discretion in granting an award of $5,000 to compensate Mrs. Juge for her physical and emotional injuries. Although it is apparent the discomfort she experienced immediately after the accident was caused by defendant’s negligence, there was no clear evidence showing back problems she experienced some three and a half years later were a result of the initial impact. Further, plaintiff failed to prove the headaches were caused by the accident in that Dr. Shraberg indicated the headaches were related to tension and depression.

The trial court awarded $824.12 for special damages. Appellants claim they are entitled to $3,079.14. The majority of the items claimed are medical expenses for the child. Because we have determined defendant is not responsible for the child’s condition there can be no recovery for these expenses. We find the trial court’s award of $824.12 is adequate compensation for expenses related to Mrs. Juge’s injuries.

In spite of the arguments set forth in appellants’ brief, it was not contended at oral argument the child’s condition was, in fact, caused or aggravated by the accident. Instead, appellants asserted Mrs. Juge should be compensated for the mental anguish she experienced during the period of time she thought the automobile accident caused the abnormal condition of her child, James Christopher. It was reasoned that without the accident the nature of her mental anguish relative to the child’s problems would have been different. To like effect, appellants argue a fair portion of the child’s medical expenses incurred to determine the cause of the condition should be recoverable as special damages.

Acknowledging the innovative approach, we do not believe there is any basis in law to support a damage award for mental anguish caused not by defendant’s act, but by conjecture. No authority for this proposition has been cited. It is simply not enough that Mrs. Juge may have thought the child’s problems was caused by the accident. During this time the cause was actually unknown and efforts were underway to diagnose the condition.

In conclusion, appellants failed to prove the accident was the legal cause of the child’s condition, therefore we certainly cannot allow recovery for mental anguish brought about only by her belief that the accident caused the damage. To do so would result in a limitless expansion of tort liability. Under appellants’ theory, in any given case it would be irrelevant whether or not the defendant’s actions were the legal cause of the plaintiff’s injury. If the plaintiff believed the injury to be caused by the defendant she would always be entitled to recover for the mental anguish associated with this belief.

For the foregoing reasons, the judgment of the trial court is affirmed. Costs are to be assessed against appellants.

AFFIRMED.

      . There is a conflict in the testimony in that Dr. Rabalais’ records show the first bleeding incident to have occurred about eight days after the accident. Mrs. Juge said the bleeding happened a day or two after the accident.

      . Although the disease is classified as an “inherited” disease, 80% of the persons contrab-ing it get it from a “new mutation,” i.e., there is no evidence of it elsewhere in the family.

      . The record shows as of the date of trial Mrs. Juge had given birth to three other children. The first born after James died shortly after birth and the other two have developed normally. This indicates she gave birth to four children within a period of 3'/2 years.


author: SHORTESS, Judge.

text:
    Juon C. WILLIAMS v. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, Earl K. Long Memorial Hospital.
    No. 15122.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Rehearing Denied Dec. 16, 1982.
    James C. Ferguson, Baton Rouge, for appellant.
    Joseph A. Donchess, DHHR, Staff Atty., Baton Rouge, for appellee.
    Robert R. Boland, Dept, of Civil Service, Baton Rouge, for George Hamner, Director, Dept, of State Civil Service.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   SHORTESS, Judge.

Juon C. Williams (appellant) was dismissed from her permanent position as Licensed Practical Nurse I at Earl K. Long Memorial Hospital on December 14, 1979. Her letter of termination signed by Raymond D. Potter, Administrator of the hospital; indicated that she was being terminated because:

“... your conduct on Two North on the 3-11 shift of December 12, 1979, was completely inappropriate and unprofessional.”

The letter then specified that appellant became extremely disruptive by the use of loud and abusive language to a male patient and to the Registered Nurse in charge and that this unacceptable behavior continued for over an hour in the patient’s room and nursing area. On January 11, 1980, appellant appealed this decision. She set forth two bases for the appeal: (1) that Potter’s charges of disruptive, loud and abusive language were not true; and (2) that she was being discriminated against.

A hearing before the Civil Service Commission was held. Thereafter, the Commission handed down a unanimous decision, with one Commissioner absent, which dismissed appellant’s appeal. The written opinion set forth the Commission’s findings of fact, wherein it found that:

“1. Appellant was a Practical Nurse I working at the Earl K. Long Memorial Hospital on the 8-11 shift on December 12, 1979. The registered nurse working this shift as her supervisor was Phyllis McCauley. A doctor was on duty at this nurses’ station during this shift, Dr. Gregory A. Brian.
“2. Room 201 was a ward room containing several beds. In one of the beds was an elderly male patient who had been ordered by a doctor, previously, to have a cradle placed over his chest on the bed to keep the sheets and blankets off of the injuries on his chest. The patient did not have the cradle over his chest when appellant and other nurses came on their shift on December 12, 1979. The patient did not want the cradle over his chest because he felt that the cradle holding the covers off of him made him cold. “3. At approximately 3:30 p.m., appellant was in Room 201 taking the blood pressure of the elderly male patient when R.N. Phyllis McCauley came into the room and told appellant that they needed to put the cradle over the elderly male patient. Appellant began to pull the covers off of the male patient to be able to put the cradle over his chest. The patient grabbed the covers and pulled them up and protested vigorously the placing of the cradle over his chest and taking the covers away from him. Appellant then told nurse McCauley that the patient did not want the cradle, the patient had not had the cradle in spite of previous doctors’ orders, that she saw no reason for upsetting the patient by making him have the cradle, that the placing of the cradle was only for the benefit of the “big doctors,” and she did not want to force the patient to have the cradle over him. Nurse McCauley explained to her that they must put the cradle over the patient and appellant told nurse McCau-ley to get someone else to help her and walked out.
“4. Appellant, at this point, got extremely loud and boisterous and continued for at least an hour to make loud statements of the futility of this type of “administrative bullshit” and generally complained to anyone who would listen to her about the futility of the administrative or doctor’s orders. The appellant complained that she was not ‘going to be anybody’s nigger.’ While these comments may or may not have been directed at Phyllis McCauley they were obviously said for the benefit of Phyllis McCauley and loudly enough for Dr. Brian and Phyllis McCauley to hear even though they were separated from the nurses’ station.
“5. After appellant refused to assist R.N. Phyllis McCauley, she telephoned the nursing supervisors Edna Faircloth and Mrs. LeBlanc who were on another floor and asked them to come up and discuss the situation. Mrs. LeBlanc went into the patient’s room where the cradle was placed over the patient’s chest. Appellant entered Room 201 just as Mrs. Faircloth was finishing the placement of the cradle and began to complain that she could have done it in the manner that Mrs. Faircloth did it without upsetting the patient. Mrs. Faircloth ordered appellant to leave the room, not talk about the matter any further, and let the whole issue drop. Dr. Gregory A. Brian, who was working on the floor at that time, indicated that the loudness and comments of the appellant created a very unhealthy atmosphere that was disruptive to the normal routine of the floor. He personally stated that it extended the time necessary for him to finish his duties and that appellant appeared to be more interested in stating her case than in taking care of her duties on the floor.
“6. Two patients and the wife of a patient who had been present in Room 201 testified that they had observed the disagreement between the R.N. and the appellant, that appellant had refused to force the cradle on the patient, that appellant had told the R.N. to get someone else to help her and walked out of the room. These witnesses’ memories were amazingly vivid about the incident between the R.N. and appellant but very hazy regarding other events that happened before and after this disagreement. The Commission concludes that something loud and unusual must have happened at this male patient’s bed to have become so indelible in the patients’ and visitor’s minds when they could not remember immediately after this disagreement.”

Our analysis of the record and especially the transcript of the hearing leads us to conclude that there was ample basis for all the findings of fact made by the Commission.

The decisions of the Commission are subject to review on any question of law or fact. La. Const. (1974), Art. 10, § 12; Gallardo v. Department of Fire, 399 So.2d 626 (La.App. 4th Cir.1981); Dundy v. Louisiana State University, etc., 394 So.2d 650 (La.App. 1st Cir.1980); Sanders v. Dept. of Health & Human Resources, 394 So.2d 629 (La.App. 1st Cir.1980), writ denied, 399 So.2d 602 (La.1981). It is well established that the standard of review in cases on appeal from the Commission is the same standard used in reviewing decisions from the trial courts. The factual determinations of the Commission will not be set aside unless they are shown to be manifestly erroneous. Department of Public Safety v. Rigby, 401 So.2d 1017 (La.App. 1st Cir.1981), writ denied, 406 So.2d 626 (La.1981); Gallardo, supra; Albert v. Louisiana State Penitentiary, 396 So.2d 340 (La.App. 1st Cir.1981); Michel v. Dept. of Pub. Saf. Al. Bev. Con. Bd., 341 So.2d 1161 (La.App. 1st Cir.1976), writ denied, 343 So.2d 1078 (La.1977).

The Commission’s factual findings generated the conclusion that the appointing authority proved that appellant became extremely disruptive and used loud and abusive language after receiving an order from her supervising R.N.; and that her refusal and disagreement to carry out the order and her louder than normal comments constituted behavior inappropriate, unprofessional and detrimental to the effective functioning of the hospital ward. The Commission felt that this conduct was sufficient to justify termination notwithstanding its finding that the appointing authority did not prove that any of appellant’s loud or abusive language was directed to the male patient or directly to the nurse who had given appellant the order.

Appellant also contends that termination was too severe, especially since the hospital’s disciplinary rules provide for reprimand or suspension for initial offenses. The Commission refused to allow any evidence relative to the administrative policies of the hospital because it felt that same was irrelevant inasmuch as appellant had been terminated in accordance with Civil Service Rule 12.1. Its ruling was correct.

Great weight is given to the factual conclusions of the administrative fact finder. Sanders, supra; Arnold v. New Orleans Police Dept., 383 So.2d 810 (La.App. 4th Cir.1980) writ denied 385 So.2d 274 (La.1980); Herbert v. Dept. of Police, 362 So.2d 1190 (La.App. 4th Cir.1978).

We feel that there was ample evidence to support not only the Commission’s findings of fact, but also, its decision which affirmed the disciplinary measure of termination, and we affirm its decision at appellant’s costs.

AFFIRMED.

      . The charges of discrimination were not pursued by appellant at the evidentiary hearing.

      . “12.1 Disciplinary Actions.
      An appointing authority may take appropriate action to remove, suspend, demote, reduce in pay, reassign or reprimand an employee for cause.”


author: WATKINS, Judge.

text:
    J.E. JUMONVILLE, Sr. v. FRANK’S PETROLEUM, INC.
    No. 15123.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Rehearing Denied Dec. 16, 1982.
    C. Jerome D’Aquila, D’Aquila, & Parks, New Roads, William S. Strain, Baton Rouge, for plaintiff-appellant.
    .Francis A. Smith, Jr., Kearney, Smith & Chustz, New Roads, Carey T. Jones, Atty., Watson, Blanche, Wilson & Posner, Baton Rouge, for defendant-appellee.
    John B. Noland, Brezeale, Sachse & Wilson, Baton Rouge, for third-party defendants-appellees.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   WATKINS, Judge.

This is an action brought by J.E. Jumon-ville against Frank’s Petroleum, Inc., to recover for mental anguish to Jumonville arising from physical injury to his twelve year old son in a motor vehicle accident, and also to recover medical expenses connected with treating the son, and property damage to a 4-wheel drive truck owned by Jumonville. Frank’s Petroleum third partied Louisiana Rig & Supply, Inc., owner of the vehicle which collided with Jumonville’s truck. The case was tried before a jury, which rendered a verdict for defendant.

Jumonville had entered into a mineral lease of certain land that he owned, with Frank’s Petroleum being mineral lessee, the lease containing the following paragraph:

“8. LESSEE shall be responsible for all damages of LESSOR, OR LESSOR’S tenants, caused by LESSEE’S permitted operations.”

It is this paragraph that Jumonville contends constitutes the basis of Frank’s Petroleum’s liability. The accident occurred between a 4-wheel drive truck owned by Ju-monville in which Jumonville’s 12 year old son was a passenger and a motor vehicle owned by Louisiana Rig & Supply, Inc. Joseph Johnson, Jr., an employee of Jumon-ville, was driver of the vehicle owned by Jumonville and George P. Roussel, III was driver of the vehicle owned by Louisiana Rig & Supply, by which corporation he was employed. Louisiana Rig & Supply was providing oil field service to Frank’s Petroleum at the time the accident occurred. In the accident, the only personal injury sustained was a two inch cut on the forehead of Jumonville’s 12 year old son.

The versions of the accident as testified to by the two drivers differ diametrically as to how the accident arose, although the drivers agree that the accident occurred on a private road which ran across Jumon-ville’s land. Roussel testified that the vehicle driven by Johnson was on Roussel’s side of the road, the left side of the road, and that Roussel cut to the left to avoid the vehicle driven by Johnson. According to Roussel, Johnson at the same time cut to Johnson’s right, and the two vehicles struck head-on. According to Johnson, the vehicle driven by Roussel was on the left side of the road, Johnson’s lane of travel, and Johnson was unable to avoid an accident. The testimony establishes that there were deep ditches on either side of the road, and attempting to cut sharply off the road to avoid the accident was out of the question for either driver.

The jury obviously believed Roussel’s version of the accident.

The brief filed on behalf of Jumonville contends that the jury was incorrectly charged, as Jumonville sought recovery under the quoted Paragraph 8. of the lease contract, while the trial court charged the jury both on contract law and negligence. It is true that the charge was rambling and imprecisely stated. However, our review of the testimony convinces us that Frank’s Petroleum should not be held liable.

As we have explained, the testimony of the two drivers was diametrically opposed. As Jumonville’s twelve year old son was not called to testify, it must be assumed that his testimony would not have been favorable to Jumonville’s recovery. Veazie v. Consolidated Companies, 350 So.2d 1302 (La.App. 3d Cir.1977). An equally unfavorable inference arises from Jumonville’s failure to call the physician who treated his son’s two-inch cut. Furthermore, the major item for which Jumon-ville seeks recovery is Jumonville’s alleged mental anguish resulting from the cut on his twelve year old son’s forehead. A person may not recover for mental anguish which he suffered as a result of the physical injury of another person. Steele v. St. Paul Fire & Marine Ins. Co., 371 So.2d 843 (La. App. 3d Cir.1979), writ denied 374 So.2d 658 (La.1979).

As the evidence establishes that Johnson, Jumonville’s employee, was at fault, his failure to drive his vehicle in a safe manner caused the accident, not the mineral lessee’s operations. Thus, there can be no recovery under paragraph 8. of the mineral lease, which permits recovery of damages “caused” by lessee’s operations. Further, as the preponderance of the evidence indicates that Roussel was not negligent, and that Johnson was negligent, there can be no recovery on a theory of negligence under LSA-C.C. art. 2315.

The judgment of the trial court is affirmed, at appellant’s cost.

AFFIRMED.

SHORTESS and EDWARDS, JJ., concur in the result.


author: CARTER, Judge:

text:
    Carl W. TANNER v. CITY OF BATON ROUGE, et al.
    No. 82 CA 0003.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Rehearing Denied Dec. 16, 1982.

      Alva L. Carbonette, Baton Rouge, for plaintiff-appellant Carl W. Tanner.
    Charles E. Pilcher, Asst. Parish Atty., Baton Rouge, for defendant-appellee City of Baton Rouge and Parish of East Baton Rouge.
    Before LOTTINGER, COLE and CARTER, JJ.
   CARTER, Judge:

This proceeding was instituted by Carl Tanner by a petition entitled “Petition in Suit for Reinstatement of Employment and for Damages.” After trial on the merits, judgment was rendered in favor of defendants, City of Baton Rouge and Parish of East Baton Rouge. Mr. Tanner has perfected this appeal. We affirm.

On September 12, 1975, Carl Tanner was dismissed from his job as a Plumbing Inspector I in the Inspection Division, Department of Public Works (Department), City of Baton Rouge and Parish of East Baton Rouge, Louisiana. He was discharged by Ray Burgess, Director of Public Works, on recommendation of Mr. R.C. Groht, Superintendent of the Inspection Division, for the stated reasons that his actions were not in the best interest of the City-Parish and that they were insubordinate to the instructions he had received from his immediate supervisor in that he failed to enforce the laws that he was employed to uphold. It was the opinion of Mr. Groht, concurred in by Mr. Burgess, that because of Mr. Tanner’s actions, he could not effectively perform the duties assigned to him as Plumbing Inspector.

Mr. Tanner appealed his dismissal to the City-Parish Personnel Board in accordance with the provisions of Rule XI of The Rules Governing Employees in the Classified Service. The appeal was heard on September 30, 1975, and the Board upheld the discharge finding that Mr. Tanner’s activities were detrimental to the efficiency of the City-Parish public services as performed through its employees, that his statements and expressions definitely affected the working relationship with his superiors and co-workers and adversely affected the daily operation of the Department of Public Works and indicated an inability to perform his responsibilities as required by law.

Mr. Tanner’s dismissal arose out of the following set of facts, as found by the City-Parish Personnel Board. A form letter was sent to all residents of Village St. George, a subdivision in East Baton Rouge Parish, informing the residents that they were required to tie-in to the sanitary sewer collection line. The letter provided a deadline for the tie-in and contained reference material citing authority for the Department of Public Works to make this requirement. Reports were received by the Department that Mr. Tanner was advising residents that sewer tie-ins as ordered by the City-Parish were unnecessary and unconstitutional and that he was encouraging residents to seek legal assistance. On September 9, 1975, at a meeting of the residents of Village St. George and several city and parish officials, called to clear up the confusion concerning the sewer tie-in requirements, Mr. Tanner admitted having encouraged the residents to resist the tie-ins and made a statement to the residents, “This is a rip-off. It’s unconstitutional and they are stealing your money.” The Personnel Board found that Mr. Tanner’s dismissal was a result of his activities and statements at this meeting.

Mr. Tanner then filed suit in the Nineteenth Judicial District Court by a petition entitled “Petition in Suit for Reinstatement of Employment and for Damages.” The trial judge treated the suit as an appeal from the finding of the City-Parish Personnel Board. He stated that the finding of the Board must be upheld unless there was an abuse of administrative discretion by the Board acting arbitrarily, capriciously, or in a discriminatory manner.

From a judgment affirming the decision of the Personnel Board, Mr. Tanner appealed to this court alleging four assignments of error.

ASSIGNMENTS OF ERROR

(1) The trial court erred in treating the suit as an appeal from the decision of the City-Parish Personnel Board, in lieu of treating it as a suit for damages.

(2) The trial court erred in failing to question the validity or existence of the laws or regulations plaintiff allegedly failed or refused to enforce.

(3) The trial court erred in not considering plaintiff’s allegation that he was deprived of his right to freedom of speech.

(4) The trial court erred in treating the case as an appeal from the Personnel Board, thus disregarding the evidence presented at trial.

ASSIGNMENTS OF ERROR NOS. 1 ■ AND 4

Mr. Tanner’s petition was entitled, “Petition in Suit for Reinstatement of Employment and for Damages.” The trial judge, in his written reasons for judgment, stated:

“Notwithstanding the heading on the petition and the allegations- contained therein,. this must be considered as an appeal from action taken by the City-Parish Personnel Board, after a hearing held September 80, 1975, which upheld plaintiff’s dismissal as a classified employee of the Department of Public Works (DPW).”

Mr. Tanner contends that under the applicable City-Parish rules, there is no appeal beyond the appeal to the Personnel Board, that the district court was not provided by law with the necessary appellate jurisdiction to hear the case as an appeal, and that the trial court erred in treating the suit as an appeal in lieu of a full scale suit to be decided on the merits in a trial de novo.

The Louisiana Constitution of 1974 provides in Article 5, Section 16(B) that district courts have appellate jurisdiction as provided by law. The rules governing classified employees provide that the decision of the Personnel Board is final; there is no provision for an appeal to the court system.

However, courts have granted judicial review of administrative proceedings in the absence of statutory authority. In the ease of Anderson v. State, 363 So.2d 728 (La.App. 2d Cir.1978), the court said, “Even in the absence of statutory authority, the right of judicial review of administrative proceedings exists. Bowen v. Doyal, 259 La. 839, 253 So.2d 200 (La.1971); Werner v. Bd. of Trustees of New Orleans Police, etc., 360 So.2d 615 (La.App. 4th Cir.1978).” In reviewing the decision of an administrative agency, the district court is exercising its exclusive original jurisdiction. Anderson v. State, supra. Bowen v. Doyal, supra.

Though the trial court termed its review an “appeal”, it was actually exercising its exclusive original jurisdiction to review decisions of administrative boards.

Plaintiff’s petition to the district court prayed for reinstatement, for restoration of all benefits, and for damages for suffering and humiliation. We just stated that the district court had “original” jurisdiction to hear the suit. However, the district court cannot at this stage afford a trial de novo and ignore the prior finding and conclusions of an administrative body. Its proper function is to serve as a court of judicial review.

We quote with approval the following language from Gertler v. City of New Orleans, 346 So.2d 228 (La.App. 4th Cir.1977): writ denied, 349 So.2d 885 cert. denied, 434 U.S. 1068, 98 S.Ct. 1248, 55 L.Ed.2d 770, which clearly defines the proper function of the trial court in a case such as the instant one.

“But, even if the district court has ‘original jurisdiction,’ it must, generally, accord a presumption of regularity to the decisions of boards of adjustment. This presumption is rebuttable. However, no reviewing court can, out of hand, simply substitute its own judgment for that of a zoning board or other properly constituted and validly functioning administrative agency. It must first determine or establish whether or not the decision of the board or administrative agency is supported by substantial and competent evidence adduced in proceedings which are regular and orderly.”

In the case of Messina v. Rapides Parish Police Jury, 373 So.2d 745 (La.App. 3rd Cir.1979), the plaintiffs were removed as members of the Rapides Parish Housing Authority by the police jury, and they “appealed” to the district court. The district court reinstated them in their positions, the police jury appealed to the Second Circuit, and that court reversed the decision of the district court. Finding no statutory standard of review and no prior adjudications, the court looked to similar situations involving governmental, administrative, and quasi-administrative bodies. After a review of analogous cases, the court said:

“.... we believe that the most logical standard is that set forth in the above, analogous, cases involving school boards, civil service boards, zoning boards, and an executive order in an adjudicatory proceeding under the Administrative Procedure Act, to-wit:
(1) In accordance with authority and formalities of the law and
(2) Supported by substantial evidence, in that the action was not arbitrary or capricious or an abuse of discretion.

This court has had occasion to recognize that standard in a similar case. In Cochran v. City of Baton Rouge, 399 So.2d 656 (La.App. 1st Cir.1981), Mr. Cochran appealed the decision of the district court which upheld his dismissal by the Personnel Board as an Airport Safety Officer. The transcript of testimony taken before the Board was incomplete and inaccurate, so this court remanded the case to the Board with instructions to prepare a complete transcript or hold a second hearing. In so remanding, we •stated, “We are required to determine if the finding of the agency is arbitrary or an abuse of discretion, and if it is supported by substantial evidence.”

In the present case, there was no transcript of the proceedings of the Personnel Board for the district court to review, and ordinarily the case would be remanded to the Personnel Board. See Cochran, supra. However, both parties were given the opportunity to present witnesses and offer evidence in the district court, and, the trial court had a summary of the factual findings and conclusions of the Board. Nothing more could be gained by remanding the case. Mr. Tanner was given a complete hearing at which he had every opportunity to present evidence and plead his case.

After reviewing the evidence presented at trial and the finding and conclusions of the Personnel Board, the trial judge said,

“This court is not in a position to substitute its opinion for that of an administrative tribunal in the absence of a finding of an abuse of their administrative discretion by acting arbitrarily, capriciously, or in a discriminatory manner.”

This was the correct standard to apply. Messina, supra; Cochran, supra.

ASSIGNMENTS OF ERROR NOS. 2 AND 3

Mr. Tanner argues that the trial judge should have recognized that there was no provision in the Plumbing Code which required the residents of St. George to perform the bypass demanded by the Department of Public Works. He urges that as his duty was to enforce the Plumbing Code, he could not have been remiss in not enforcing a policy not specified in the Code. Mr. Tanner also argues that the trial court erred in not considering his allegation that he was deprived of his right to freedom of speech.

In answer to the arguments, we quote the following from the trial judge’s written reasons for judgment:

“Plaintiff’s position is that since everyone at the meeting was aware of the fact that he was speaking as a private individual, not representing the City-Parish at the meeting, that he could not be censured for any statements while exercising his right to free speech. This argument begs the issue. Clearly, in this court’s estimation, what plaintiff was told prior to speaking was that he could not speak as a representative of the City-Parish government and that any remarks he made were strictly his own. Plaintiffs statements were certainly detrimental to his working relationship with his employer and his opinions directly affected his ability to perform his duties. He had an alternative, but it should not have been by making public disparaging remarks against his employers. The City-Parish Council, the legislative arm of the City-Parish government, could easily have been apprised of his opinion as to this ordinance. If properly petitioned, the council could have taken whatever remedial action it thought appropriate under the circumstances.”

The trial court considered the real issue as whether Mr. Tanner had injured his working relationship with his employer and whether his opinions directly affected his ability to perform his duties.

All citizens have the right to criticize public officials on their official conduct and to comment on matters of public interest. Flynn v. Giarrusso, 321 F.Supp. 1295 (E.D.La.1971). This right is not only important to the individual but also is essential to the Democratic process. Free criticism of official conduct and free speech on matters of public interest are essential to ensuring the lawful and proper functioning of the government. However, the state, as an employer, has a legitimate interest and right in regulating to some degree the speech of its employees. Flynn v. Giarrusso, supra; Pickering v. Bd. of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968).

In the Pickering case, supra, a teacher was dismissed from employment for writing and having published a letter criticizing certain actions of the school board. The court said that “(T)he problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”

In deciding that the teacher was wrongfully dismissed, the court made several observations pertinent to an analysis of the case at hand. It noted that the statements made by the teacher were in no way directed towards any person with whom he would normally be in contact with in the course of his daily work as a teacher. Therefore, there was no question of maintaining either discipline by immediate superiors or harmony among coworkers. In the case at hand, the statements were directed toward Mr. Tanner’s immediate superiors. By directing such a personal attack, he undermined their authority and created a situation in which a tense, uneasy relationship was bound to develop.

Most important to the case at hand is the following language from the court in Pickering:

“What we do have before us is a case in which a teacher has made erroneous public statements upon issues then currently the subject of public attention, which are critical of his ultimate employer but which are neither shown nor can be presumed to have in any way either impeded the teacher’s proper performance of his daily duties in the classroom5 or to have interfered with the regular operation of the schools generally. In these circumstances we conclude that the interest of the school administration in limiting teachers’ opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public.” (Footnote omitted)

The Personnel Board and the trial court both found that Mr. Tanner’s statements and expressions adversely affected the daily operation of the Department of Public Works. Mr. Tanner’s job as a public employee was to enforce the very policies he had so vehemently criticized. He stated that he did not feel obligated to perform certain duties relating to the sewer tie-in required of him by his superiors. The project the Department had undertaken to effect the sewer tie-ins was thus impeded. When a public agency, such as the Department of Public Works, ceases to run smoothly and efficiently, important public services are disrupted. The interest of the State becomes paramount in this type of situation and reasonable restrictions on speech must be allowed to support that intent.

Mr. Tanner certainly had the right and the privilege to express his opinion concerning the practices of the Department. The exercise of this right, however, cannot interrupt the functioning of the government and the important services it renders.

As the trial judge pointed out, Mr. Tanner had an alternative. The trial judge said:

“The City-Parish Council, the legislative arm of the City-Parish government, could easily have been apprised of his opinion as to this ordinance. If properly petitioned, the council could have taken whatever remedial action it thought appropriate under the circumstances.”

We agree with the trial judge’s analysis of this case.

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

AFFIRMED.

      . “(B) Appellate Jurisdiction. A district court shall have appellate jurisdiction as provided by law.”


author: LOTTINGER, Judge.

text:
    Billy Joe EVERETT v. Cynthia Kaye EVERETT.
    No. 82 CA 0278.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Rehearing Denied Dec. 16, 1982.
    Jack N. Rogers, Baton Rouge, for plaintiff-appellee Billy Joe Everett.
    James C. Ferguson, Baton Rouge, for defendant-appellant Cynthia Kaye Everett.
    Before LOTTINGER, COLE and CARTER, JJ.
   LOTTINGER, Judge.

This is an appeal by Cynthia Kaye Everett Bonaventure, appellant-defendant in rule, from a judgment of the trial court making absolute the rule for change of custody filed by Billy Everett, appellee-plaintiff in rule, changing the custody of the minor Daniel Everett from the mother Cynthia Kaye Everett Bonaventure to Billy Everett. Cynthia Kaye and Billy Joe Everett were divorced on October 14, 1977, in Galveston County, Texas, and Cynthia Kaye Everett was awarded the custody of the minor child Daniel, born May 16, 1973, subject to the father’s rights of visitation. The judgment of the Texas court was recognized and granted full faith and credit by judgment of the trial court on August 29, 1979, at which time the visitation rights granted to the father were amended.

In determining that custody should be changed from the mother to the father, the trial judge in his oral reasons for judgment said:

“Now, let’s get to the issue of custody which is, of course, the most difficult matters which this court is called upon to pass upon. It is, of course, well-established that the sole criteria in cases of this type is the best interest of the child. Based upon the court’s evaluation of all of the surrounding facts and circumstances, giving due weight to certain factors, but without being bound exclusively by any of them, the record shows here, as I have previously mentioned, that Mr. Everett’s visitation has been largely thwarted since Easter of 1981. Even his efforts to communicate with the child. The record otherwise shows that since the divorce of these parties in Texas, Mrs. Everett moved to Louisiana, to Baton Rouge. There have been at least two prior proceedings filed in which, first, Mr. Everett filed proceedings in Louisiana to have his visitation rights fixed and established and recognized as had been previously fixed by the Texas court. That was done. Thereafter there was a further hearing in which the visitation rights were more fully delineated, and there is this present hearing in which the question of visitation rights is again before the court.
“After coming to Louisiana, Mrs. Bonaventure, the former Mrs. Everett, contracted a marriage with Mr. Bonaventure, and lived briefly in Pointe Coupee Parish with him, and came back to Baton Rouge. She is now living here in this parish again with this child and two children of a prior marriage. She has not remarried. She seems to have carved out a relatively stable life for herself. The child seems to be doing well in school. He seems to be otherwise well-adjusted. He seems to be a fine young man.
“Mr. Everett has likewise remarried. He has a stable home at this point. He and his wife have a child. There are other children in the home of a prior marriage of his and of a prior marriage of his wife. They also have an infant in their home at this time who was placed there by a protective agency. The child of one of the present Mrs. Everett’s relatives who was killed. They, too, have, to my mind, developed an extremely stable, happy relationship with each other. Members of the family seem to be getting along well. “The biggest problem which has existed in this ease, as the court sees it, is the visitation problem. This young [Daniel Lee Everett] man testified as a witness. He loves both of his parents very deeply. I think that he understands that if his parents didn’t love him this proceeding wouldn’t be going forward. He can adjust to whatever the court might do, although he has stated at this time a preference to reside and continue with the mother. That can be taken into consideration but it is not binding upon the court. Both parents, the custodial parent and the noncustodial parent, had the right to have a situation exist in which the child is capable of developing a reasonable good relationship with both parents. The parents have their right and so does the child. The child has the right to know and love and have the benefit and the guidance and affection and love of both parents. Visitation is not only something that the parent is entitle to, it is something that is likewise in the best interest of the child. Taking into account the very serious problems which have heretofore existed in this case with respect to visitation, the effort to almost completely thwart any visitation or contact; taking into account the fact that this young man is eight years old and 'may very well thrive from having a home in which a male figure can give him guidance, as well as a female in the home, although not a mother; taking into account the totality of the evidence that the court has heard in this case today, the court believes that it is in the best interest of this child that the custody be awarded to the father, subject to reasonable rights of visitation on the part of the mother.”

In appealing Mrs. Bonaventure basically contends that the trial judge abused his discretion in changing custody and went against the best interest of the child. In addition appellant contends that the trial judge failed to consider the prior custody judgment as well as giving too much weight to appellant’s contempt of court. Lastly it is argued that a tape recorded telephone conversation introduced by plaintiff-appellee was in error because it was obvious that the tape had been tampered with.

A complete recitation of all of the facts is not necessary for a resolution of this appeal. We are convinced after a thorough study of the record that the trial judge has not abused his discretion. It is clearly evident from the record that Mrs. Bonaventure openly and with full knowledge curtailed the visitation of the father with his child. We are of the opinion that the trial judge was eminently correct in changing custody from the mother to the father, and that decision of the trial judge was based on all of the evidence presented, and not merely Mrs. Bonaventure’s obvious contempt of the previous visitation orders.

We have listened to the tape recording and do not agree that there is any evidence to indicate that same had been tampered with.

Therefore, for the above and foregoing reasons, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.


author: BOUTALL, Judge.

text:
    ARTHUR DOOLEY & SON OF LOUISIANA, INC. v. Maurice JOHNSON, et al.
    No. 5-78.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1982.
    Rehearing Denied Dec. 17, 1982.

      H. Bruce Shreves, Simon, Peragine, Smith & Redfearn, New Orleans, for Nat. Sur. Corp., intervenor-appellee.
    C. Ellis Henican, Jr. and Robert Angelle, Henican, James & Cleveland, New Orleans, for Arthur Dooley & Son of Louisiana, Inc., plaintiff-appellee.
    Thomas G. Donelon, Donelon, Canella & Donelon, Metairie, and Eugene R. Preaus, Virginia N. Roddy, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, for William T. Quirk & Jefferson Bank & Trust Co., defendants-appellants.
    Before BOUTALL, KLIEBERT and CURRAULT, JJ.
   BOUTALL, Judge.

This is a suit in tort against a bank for cashing checks of the plaintiff corporation made out to one of its subcontractors. The subcontracting company was secretly operated by one of the plaintiff’s own employees, as part of a scheme to embezzle or improperly obtain money from his employer. The negligence for which the bank is alleged to be liable to the plaintiff is that the bank, when cashing the checks, allowed the employee-subcontractor to endorse them in the name of his business only, without adding his personal endorsement. The plaintiff corporation contends had the employee’s name been added below that of the payee subcontractor, plaintiff would have discovered the scheme immediately and thus avoided the substantial monetary losses it suffered as a result of its employee’s fraud.

The trial court denied the bank’s exceptions of no cause of action, no right of action and prescription. Following trial on the merits before a jury, a verdict was rendered in favor of the plaintiff in the amount of $194,000. The bank appealed. We reverse, finding the verdict below was predicated on an error of law.

Arthur Dooley & Son of Louisiana, Inc., plaintiff herein, is a Texas-based company which sells and installs firefighting equipment. In 1973, Dooley hired Maurice J. Johnson to be manager of its office in Harvey, Louisiana. A condition of his employment was that he not engage in outside employment or other business activities without prior consent of the company. Johnson was in charge of selling equipment, engaging subcontractors, inspecting, supervising, and hiring workers. He had no right to disburse money directly, but was authorized to approve payment of invoices of Dooley’s subcontractors. It was his practice to initial the invoices, which were then forwarded to the Beaumont, Texas home office of his employer for payment. There, Dooley employees would match up the invoice with the appropriate jobs, and then make out a check to the subcontractor which would be mailed from the Beaumont office.

In the summer of 1974, Dooley contracted with Marathon Oil Company to install and refurbish firefighting equipment on some of Marathon’s offshore drilling platforms. Dooley decided to subcontract out the welding for the work to be handled by the Harvey office.

The welding subcontractor engaged by its Harvey manager, Maurice Johnson, was Offshore Welders and Fabricators (OW & F). Unknown to Dooley, OW & F was a sole proprietorship set up by Johnson, presumably to skim off money from the welding subcontract. Apparently Johnson’s scheme was to hire other companies to do only enough of OW & F’s work to avoid suspicion; he would then send invoices, approved by himself as Dooley’s manager, to Dooley as if OW & F had performed all the work for which it was hired. When Dooley paid the invoices, Johnson would pay OW & F’s subcontractors, retaining the overage for himself. From September 24, 1974 to October 3, 1975, Dooley made 30 checks, totalling $240,983.44, payable to the order of Offshore Welders & Fabricators. From all that could be established at trial, it is likely he used this money to support a serious gambling habit.

Jefferson Bank & Trust Company (JB & T) and William T. Quirk, the JB & T Harvey branch manager, defendants-appellants herein, became unwittingly involved in Johnson’s scheme. Johnson and Quirk belonged to the same country club, and Johnson had an affable and engaging personality. Johnson made overtures to Quirk to establish a business relationship with the bank. The bank investigated his employer, Dooley, and learned Dooley was a well-established company with an excellent credit rating. Hoping to get some of Dooley’s business through Johnson, the bank was accommodating to Johnson. Johnson opened up an account in the name of Gulf Offshore Services, Inc., (apparently another dummy company he owned) and also took out a personal loan.

In addition, as Dooley began issuing checks to OW & F for the work supposedly done, Johnson brought the checks to JB & T for negotiation. All but one of the 30 checks were negotiated at JB & T, and the majority of them were approved by Quirk for processing. Twenty-three of the checks were endorsed “Offshore Welders & Fabs” or “Offshore Welders & Fabricators;” six others were endorsed the same way, with the additional endorsement “T.D.” or “T. Doyle” or “Tom Doyle.” Six of the checks were deposited in the account of Gulf Offshore; the remaining checks were cashed by Johnson. The average amount of the checks was in excess of $8,000. Some of them exceeded $10,000, and two or three were in excess of $20,000. There is no proof that either Quirk or JB & T had actual knowledge of Johnson’s scheme.

From September 1974 until November 1975, no inquiry about the checks was made either by the drawee bank, First Security State Bank in Beaumont, Texas, or by the drawer, Dooley. None of the checks were returned or dishonored. In October 1975, however, Dooley was alerted to Johnson’s connection with OW & F when a company hired by Johnson to perform some of OW & F’s work contacted Dooley for payment. Subsequent investigation revealed Johnson’s dealings, and an inventory showed Dooley had been charged and had paid for supplies, equipment and services it never received.

At Dooley’s request, the 29 checks to OW & F were returned thereafter by First Security State Bank to JB & T for the personal endorsement of Johnson. JB & T contacted Johnson and he willingly signed his name as proprietor on each check under the OW & F endorsement. The checks were then returned to First Security Bank and then to Dooley.

In May 1976, Dooley filed a lawsuit against Johnson for breach of fiduciary relationship, alleging Johnson had violated his fiduciary trust with Dooley and had unjustly enriched himself in the amount of $293,-900.09, which amount was prayed as damages. Johnson filed a general denial in proper person, and then seems to have absconded, for he made no further appearance in the proceedings or at trial.

In June 1977, Dooley filed an amended petition naming JB & T as a defendant, alleging the bank was liable in solido with Johnson. Dooley alleged the bank’s failure to require “complete and proper endorsement by the payee” aided Johnson “in perpetrating his fraudulent and illegal scheme.” Dooley later added Quirk and the Continental Insurance Company as defendants; Continental was dismissed from the suit on summary judgment before trial.

As mentioned earlier, the case was tried to a jury. Their verdict in favor of Dooley was rendered pursuant to interrogatories basing liability on negligence and proximate cause.

The threshold question, aptly stated by plaintiff-appellee Dooley in brief, is the nature of the duty owed by JB & T to a non-customer such as Dooley whose checks were negotiated initially at that bank. Dooley, interpolating Louisiana’s commercial laws and general negligence law, asserts a bank must act in good faith and with ordinary care, according to reasonable commercial standards. Dooley maintains the bank’s failure to require Johnson’s personal endorsement constituted bad faith under the circumstances, violated reasonable commercial standards, and was a failure to use ordinary care. Dooley argues that the circumstances of the case at bar presented the bank with abundant irregularities which should have aroused the suspicions of someone at the bank, yet the bank took no precautions against the operation of a fraud and made no inquiries to anyone except Mr. Johnson himself. Additionally it contends that if the bank had availed itself of the procedure of requiring Johnson to sign the back of each check with the endorsement “By Maurice Johnson,” or “Maurice Johnson, Proprietor,” below the endorsement of the payee, then Dooley would have been able to discover the fraud perpetrated upon it by Johnson.

The appellants, JB & T and Quirk, contend they acted properly in negotiating the checks, which were unaltered, drawn to the order of Offshore Welders & Fabricators and endorsed in the name of the payee by the sole proprietor of the payee. They note that the bank was presented an instrument which, on its face, met all statutory requirements of negotiability. It had no notice of any defenses available thereto and therefore, the payment was proper. Appellants argue that, in the absence of a forged endorsement, conversion, acceptance of a check endorsed by an agent acting without authority for his principal, or breach of warranty, the bank owed no other duty to the drawer. Under La.R.S. 10:4r-207 it warranted to any payor, including the drawer, Dooley, that it had good title, no knowledge that the signature of the drawer was unauthorized and that the item had not been materially altered. None of these warranties was breached.

Louisiana’s commercial laws are contained in Revised Statutes 10, Chapters, 1, 3 & 4. The legislature’s enactment of these articles of the Uniform Commercial Code embodies a unified scheme designed to govern commercial transactions. LSA-R.S. 10:1-102, 1-104. The other laws of Louisiana apply only where a situation is not covered by the commercial laws. LSA-R.S. 10:1-103. The duties of a bank in handling commercial paper are prescribed in Chapters 3 & 4 of R.S. 10.

Johnson indisputably was doing business as Offshore Welders & Fabricators. It was a sole proprietorship and therefore he was entitled to endorse checks in Offshore’s name. LSA-R.S. 10:3-401, 10:3-402, 10:3-403. The law does not oblige him to add his own name unless it is required by the person cashing the check.

“Where an instrument is made payable to a person under a misspelled name or one other than his own he may endorse in that name or his own or both; but signature in both names may be required by a person paying or giving value for the instrument.” (Emphasis added.) LSA-R.S. 10:3-203.

There is no provision requiring the bank to insist he add his name to that of his company. LSA-R.S. 10:4-205 allows a depositary bank to supply any endorsement of the customer which is necessary to title. No other endorsement was required in this case, however, because the check was made out to and cashed by the named payee.

LSA-R.S. 10:3-207 provides that negotiation is effective to transfer the instrument, but may be rescinded except as against a subsequent holder in due course. Holder in due course is defined in LSA-R.S. 10:3-302(1):

“A holder in due course is a holder who takes the instrument
(a) for value; and
(b) in good faith; and
(c) without notice that it is overdue or has been dishonored or of any defense against or claim to it on the part of any person.
* * * tf

There is no dispute that the bank took the checks for value. Our brothers on the First Circuit have recently analyzed how good faith and notice are to be interpreted for holder-in-due-course status under Louisiana law. We adopt their cogent explanation:

“The NIL has been partially replaced by the provisions of the Uniform Commercial Code adopted by Louisiana and we have had no cases on this point. However, other jurisdictions have interpreted the UCC to say that mere negligence or failure to make inquiries which a reasonable man would make, does not amount to bad faith so long as the party does not refuse to inquire in order to remain ignorant of facts which he fears would disclose a defect in the transaction. [Citation omitted.] Though a holder may have been negligent in taking the paper and omitted precautions which a prudent man would take, unless he has acted male fide his title will prevail. [Citations omitted.]
“We believe our statutory provisions lead to the same conclusions. The current UCC provisions are more specific in the requirements of holder in due course status than the former NIL. A holder in due course must take possession of a note in good faith, for value, and without notice of any defense or claim to it on the part of any person. La.R.S. 10:3-302. A purchaser has notice of a claim or defense if he has notice that the obligation of any party is voidable in whole or in part. La.R.S. 10:33-304(l)(b). Notice of a fact is defined as actual knowledge, receipt of notice or notification of the fact, or from all facts and circumstances known to a person at the time in question, he has reason to know that the fact exists. La. R.S. 10:1-201. A person knows or has knowledge of a fact when he has actual knowledge of it. La.R.S. 10:1-201.
“Good faith is defined as honesty in fact in the conduct or transaction concerned. La R.S. 10:1-201. * * *
“The ‘reasonable man test’ is not the standard to be applied in determining notice of a defense or good faith. Both determinations require a more subjective test, with the determination of good faith being totally subjective. [Citation omitted.] The ‘reason to know’ portion of the notice requirement guards against an intentional or wilful ignorance.” Republic of Texas Savings Association v. First Republic Life Insurance Company, 417 So.2d 1251 (La.App. 1st Cir.1982).

Applying that reasoning here, we conclude the record shows nothing to indicate Quirk or JB & T “refused” to inquire for fear of defects in the transaction.

The circumstances Dooley says should have made Quirk and the bank suspicious of Johnson’s business activities are the following: (1) that Johnson was a former bankrupt who liked to gamble; (2) that Johnson was a Dooley employee, yet he was cashing his employer’s checks payable to a third party; (3) that he was cashing checks for large denominations, or depositing such checks, payable to Offshore Welders & Fabricators, in the account of Gulf Offshore Services, Inc.; (4) that Johnson repeated this procedure many times; (5) that Offshore Welders & Fabricators did not have an account with the bank; and (6) that Johnson was the proprietor of Offshore Welders & Fabricators.

None of these circumstances, nor even all of them together, gave JB & T “reason to know” that Johnson was cheating his employer. Even the Uniform Fiduciaries Law, LSA-R.S. 9:3801 et seq., does not impose as severe a burden on a bank as Dooley would require. Although the U.F.L. is not applicable to this case, since Johnson was not dealing with JB & T as a fiduciary for Dooley, we note the U.F.L. does not hold a bank liable unless the bank has actual knowledge that the fiduciary is committing a breach of his fiduciary obligation, or unless the bank has knowledge of such facts that its action amounts to bad faith. LSA-R.S. 9:3804, 3806, 3807, 3809. In fact, the U.F.L. repudiates the negligence test by its definition of good faith. LSA-R.S. 9:3801(5), and “Comments” thereunder.

Indeed, under LSA-R.S. 10:3-304(4)(e), knowledge that a person negotiating the instrument is or was a fiduciary does not of itself give the purchaser notice of a defense or claim.

Dooley also alludes to the rule that as between two innocent parties, the one who made possible a breach of trust by his act of confidence must bear the loss. We believe this rule applicable, but against Dooley rather than the bank. After all, Johnson was Dooley’s own employee. Yet Dooley would have it that the bank is required to take note of Johnson’s lifestyle, financial background, and personal background, while Dooley need not do so. This is an unfair burden to impose on the bank in these circumstances.

Considering all the above, we conclude JB & T took the checks in good faith and without notice of Dooley’s defenses against it. As a holder in due course, therefore, JB & T is immune to recourse by Dooley.

Finally we address the question of Quirk’s personal liability. A determination of negligence involves a two-step process. First, it must be determined whether Quirk’s conduct was a cause-in-faet of the harm suffered by Dooley. Secondly, if his conduct was a cause-in-fact, were his acts a breach of a duty imposed to protect Dooley against the particular risk it encountered? Knockum v. Amoco Oil Co., 402 So.2d 90 (La.App. 1st Cir.1981).

Negligent conduct is a cause-in-fact of harm to another if it was a substantial factor in bringing about that harm; that is, if the harm would not have occurred without it. Dixie Drive it Yourself Sys. v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962). A defendant’s conduct must be a necessary antecedent of plaintiffs harm but it need not be the sole cause contributing to the harm; if the plaintiff can show that he probably would not have suffered injury absent defendant’s conduct, he has carried his burden of proof relative to cause in fact. Straley v. Calongne Drayage & Storage, Inc., 346 So.2d 171 (La.1977).

Anthony Onofrio, Dooley’s company comptroller, testified he was in charge of all accounting functions. He stated he and the company bookkeeper reviewed cancelled checks and reconciled the bank statements on a monthly basis. It was the bookkeeper’s responsibility to examine the bank checks for endorsements. She was deceased by the time of trial; Onofrio said, however, that she was meticulous and did an excellent job.

Although these statements do not prove that Dooley’s accounting department would have noticed Johnson’s endorsement if Quirk had required him to add it, we cannot say it is unlikely they would have seen it. Further, considering Onofrio’s alertness in ferreting out the scheme when tipped off by an inquiry from Johnson’s subcontractor, it is probable his department would have traced Johnson’s signature if they had noticed it on the Offshore Welders checks. We conclude, then, that Quirk’s failure to require Johnson’s personal endorsement was a cause in fact of the harm to Dooley.

The next question is whether Quirk’s conduct violated a duty to Dooley. As a bank officer, the standards of care he was to follow would necessarily be those imposed on the bank by statute. Those statutes are discussed above. Violations of statutorily-imposed duties do not automatically create liability in a particular civil case, however, for the duty may have been designed to protect someone other than the plaintiff or to protect the plaintiff from some evil other than the injury for which it seeks recovery. Knockum v. Amoco Oil Co., supra.

We find the latter to be applicable here. There is no statutory requirement for the personal endorsement of one operating under a trade name. Dooley, citing the testimony of its expert, contends nevertheless that Quirk failed to follow good banking practice and did not exercise ordinary care by approving the checks for cashing absent Johnson’s personal endorsement. Even if that is the case, however, any duty to require a personal endorsement is designed to protect the drawer or maker of a check from forgery, imposter, or some other more direct misuse of commercial paper.

The injury of which Dooley complains, reduced to its essence, is that it paid for services and supplies it did not receive. (The corollary, that its fiduciary profited at its expense, can be urged only against that Fiduciary.) Any duty on the part of Quirk lay in insuring that Dooley’s checks were cashed by the payee or its agent and that the checks were not materially altered. He had no obligation to serve as a detective for Dooley to ferret out arcane methods of pilfering by Dooley’s employees. We conclude, accordingly, that Quirk is not liable to Dooley for its losses.

Considering the foregoing, the judgment of the district court is reversed and it is ordered that there be judgment herein in favor of defendants, William T. Quirk and Jefferson Bank & Trust Company, dismissing the demand of plaintiff, Arthur Dooley & Son of Louisiana, Inc. All costs are to be paid by plaintiff.

REVERSED & RENDERED.

      . National Surety Corporation, which was the surety for Johnson with Dooley, had intervened in the suit to recover $5,000 it had paid to Dooley on the surety bond. The judgment rendered in conformity to the jury verdict apportioned the award correspondingly. Hence National Surety Corporation is also an appellee before this Court.


author: CHEHARDY, Judge.

text:
    Alice THOMPSON v. BROWN & ROOT, INC., and Life Insurance Company of the Southwest.
    No. 5-135.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1982.
    Rehearing Denied Dec. 17, 1982.

      Gordon Hackman, Boutte, for Alice and Waymon Thompson, plaintiffs-appellants.
    Harry Morgan, Luling, for Marrion Wallace, plaintiff-appellant.
    Phelps, Dunbar, Marks, Claverie & Sims, Virginia N. Roddy, New Orleans, for defendants-appellees.
    Before CHEHARDY, BOWES and GRISBAUM, JJ.
   CHEHARDY, Judge.

Alice Thompson and Marrion Wallace, the mother and fiance of decedent Ricky B. Thompson, filed this suit for breach of contract and penalties and attorney’s fees against his late employer, Brown & Root, Inc., and its group insurer, Life Insurance Company of the Southwest, for failure to pay insurance benefits due following Thompson’s death. They appeal from a judgment dismissing their suit on defendant’s motion for summary judgment.

The record reflects the following facts:

Ricky Thompson was employed by Brown & Root from August 13, 1980 until October 23, 1980 when he was terminated due to a reduction in force. He died on November 16, 1980, apparently of causes unrelated to his work. During the period of his employment, he was covered by interim term life insurance in the sum of $5,000 provided at no cost to him, effective on the first day of the month following the date of his employment.

This coverage remained in effect until the employee became eligible for full group insurance coverage, effective the first day of the third month following the date of employment, at which time the interim term life insurance ceased to exist.

Full group insurance is an optional benefit for which employees are required to pay premiums. The plan provides for medical, life, and accidental coverages and authorizes his employer to deduct from his salary one month in advance, premiums to pay for such insurance. He named “Marrion Wallace, friend” beneficiary of the life and accident benefits. (Under his interim policy, his parents, Waymon and Alice Thompson, would have been the mandatory recipients of the proceeds.)

The employer deducted the sum of $10 for health insurance; $16.45 for life insurance; and $2.20 for accidental death insurance, a total of $28.65, from decedent’s October pay check to cover the cost of premiums for the group policy to be effective November 1. These premiums were later returned after decedent died.

The employer at first denied any sum was due after Thompson’s death because he was no longer an employee at the time of death, and had not converted his group policy to an individual policy as he was entitled to do within 31 days of his termination of employment.

However, after suit was filed by the mother, and Marrion Wallace (later joined as a party plaintiff by supplemental petition), the defendants answered and the insurer reconvened to convert the suit to one of concursus, admitted owing $5,000 for which there were two adverse claimants, and deposited $5,000, allegedly representing the full proceeds due, in the registry of court. Thereafter defendants filed a motion for summary judgment.

Upon joint motion of both plaintiffs’ attorneys, the parents withdrew the funds in the registry of court; Ms. Wallace’s attorney indicated he made no claim on her behalf for those proceeds.

The sole issue for our determination is whether or not the trial court erred in granting a motion for summary judgment.

In passing upon a motion for summary judgment the court is called upon to decide whether the pleadings, depositions, answers to interrogatories and admissions on file, together with such affidavits as the parties may have submitted, show absence of a genuine issue as to material facts and that mover is entitled to a judgment as a matter of law. LSA-C.C.P. art. 966; Dixie Campers, Inc. v. Vesely Co., 398 So.2d 1087 (La.1981); Jewell v. Thompson, 386 So.2d 689 (La.App. 3d Cir.1980); Harris Mort. Corp. v. Johnson, 383 So.2d 801 (La.App. 1st Cir.1980); City of Baton Rouge v. Cannon, 376 So.2d 994 (La.App. 1st Cir.1979).

The mover has the burden of affirmatively showing the absence of a genuine issue of material fact, and any doubt as to the existence of such issue is to be resolved against granting the motion. Vermilion Corp. v. Vaughn, 397 So.2d 490 (La.1981); White v. Baker Manor Nursing Home, Inc., 400 So.2d 1168 (La.App. 1st Cir.1981).

In support of their motion defendants filed the affidavits of Stephen M. Belikoff, vice president and general counsel of defendant insurer, and Roger I. Loban, employee benefits manager of communication of decedent’s insurer. Attached thereto is a booklet of employees benefits provided for each new employee, decedent’s application for full group insurance coverage, and the rules of employment received and signed by decedent on the date he was hired, and a copy of the group policy.

We note the policy expressly limits the amount of insurance recoverable on behalf of an employee whose employment has been terminated, to that amount in effect on the employee’s last day of active work. In the instant case this amount would be $5,000, the amount defendants deposited in the registry of court.

The insurer admits decedent had 31 days in which to convert the group coverage to an individual policy in that sum, and since he died within the 31-day period they concede they owe the $5,000. Since he did not die while the interim policy was in effect it seems clear there could be no additional benefits due during that period.

In opposition to defendants’ motions, plaintiffs’ attorney filed his own affidavit claiming there are numerous unanswered questions of law and fact, and he is unable to file countervailing affidavits because discovery is incomplete.

This affidavit does not controvert any material fact in the pleadings or supporting affidavits and fails to show there is a genuine issue for trial. (We note here that it was plaintiffs’ attorney who filed a motion to set the matter for trial on the merits.) Howard v. Callahan, 396 So.2d 607 (La.App. 1st Cir.1981); Aydell v. Charles Carter & Co., Inc., 388 So.2d 404 (La.App. 1st Cir.1980); Jones v. American Bank & Trust Co., 387 So.2d 1360 (La.App. 1st Cir.1980); See Baker v. Fireman’s Fund Insurance Company, 309 So.2d 362 (La.App.2d Cir.1975).

It appears to our satisfaction that the sum of $5,000 is all that is due under the terms of the policy, and having two claimants seek the proceeds, defendants properly converted the proceedings to one of concur-sus. Since the claimants have jointly withdrawn the funds from the registry of court, there is clearly no fact which remains to be litigated.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.