text:
    Leslie A. BAKER a/k/a Richard C. Mayo v. T. L. JAMES & CO., INC., Atlas Construction Co., Inc., Augie Adams, Tom Sellers, Tom Sutherland, John T. James and F. Ben James.
    No. 11306.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.

      Gross & Abramson, Tony C. Tillman, La-Place, for Leslie A. Baker, a/k/a Richard C. Mayo, plaintiff-appellant.
    Gerard M. Dillon, Dillon & Cambre, New Orleans, for T. L. James & Co., Inc. and Atlas Const. Co., Inc., defendants-appellees.
    Dawkins, Coyle & Carter, Ruston, for Au-gie Adams, Tom Sellers, F. Ben James, Jr. and John T. James, defendants-appellees.
    Before BOUTALL, SCHOTT and CHE-HARDY, JJ.
   BOUTALL, Judge.

This appeal arises from a judgment of the trial court sustaining exceptions of no cause of action and motions for summary judgment in connection with a claim for tort damages for personal injuries sustained by the plaintiff during the course of his employment.

On or about December 27,1977, the plaintiff, Leslie A. Baker, also known as Richard C. Mayo, was performing general labor duties atop a column at the construction site of the new Mississippi River Bridge in Destrehan, La. when he fell approximately 40 feet to the ground, thereby sustaining personal injuries. The plaintiff brought an action in tort for damages against T. L. James & Co., Inc. and Atlas Construction Company, Inc., (hereinafter referred to as T. L. James and Atlas, respectively,) and several individuals including Augie Adams, Tom Sellers, Tom Sutherland, John T. James and F. Ben James for their alleged negligence in causing the accident. In response to this claim, both the named corporations and the individual defendants filed exceptions of no cause of action and motions for summary judgment.

Upon a hearing of the exceptions and of the motions for summary judgment filed by the defendants, the trial court maintained the exceptions of no cause of action and granted the motions for summary judgment, thereby dismissing the plaintiff’s suit as to all defendants except Tom Sutherland. From this judgment the plaintiff has appealed devolutively.

For the sake of understanding and clarity the validity of the motions and the exceptions will be considered with respect to the two corporate defendants, followed by the named individuals.

T. L. JAMES and ATLAS.

The Louisiana Jurisprudence and statutory law make it clear that a motion for summary judgment should be granted if, and only if, the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. LSA-C.C.P. Article 966; Chaisson v. Domingue, 372 So.2d 1225 (La. 1979); Employers’ Surplus Line Insurance Company v. City of Baton Rouge, 362 So.2d 561 (La.1978). Equally well known is the rule that when a motion for summary judgment is made and is supported by affidavits or other sworn supported documents, an adverse party may not rely solely on the allegations contained in his pleading, but his response, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue. Failure to respond, may, if appropriate, result in a summary judgment being rendered against the adverse party. LSA-C.C.P. Article 967; Badeaux v. East Jefferson General Hospital, 364 So.2d 1348 (La.App. 4th Cir. 1978); Welch v. Daigrepont, 378 So.2d 607 (La. App. 3d Cir. 1979).

In the case before us, Atlas contends that it is the employer of the plaintiff and therefore, under the exclusive provision of R.S. 23:1032, (as amended in 1976), the plaintiff’s remedy is limited to workmen’s compensation benefits only. This statute provides in pertinent part.

“The rights and remedies herein granted to an employee or his dependents on account of injury ... for which he is entitled to compensation under this chapter, shall be exclusive of all other rights and remedies of such employee . . . against his employer, or any principal .. . for said injury, or compensable sickness or disease . . .
“Nothing in this chapter shall affect the liability of the employer ... or principal to a fine or penalty under any other statute or the liability, civil or criminal resulting from an intentional act.”

To support its contention Atlas offers the affidavits of its payroll supervisor and shift foreman which state that the plaintiff was employed by Atlas. The plaintiff offers no response to these documents and apparently relies only upon his original pleadings which indicate that he may have been in the employment of T. L. James and not in the employment of Atlas. In accordance with the principle cited above we have no choice but to find that Atlas is entitled to a summary judgment as a matter of law.

Based on the foregoing the judgment of the trial court maintaining the summary judgment as to Atlas is affirmed.

Regarding the liability of T. L. James for its alleged negligent acts, the basic issue for consideration is whether this defendant was a statutory employer of the plaintiff. R.S. 23:1061 of the Workmen’s Compensation Act establishes the concept of statutory employer. It states:

“Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him.” (Emphasis added.)

By virtue of this concept the principal or statutory employer owes compensation benefits to an injured employee. On the other hand, R.S. 23:1032 (as cited above) provides that the remedy of an injured employee against the principal or statutory employer is limited to compensation benefits, unless the latter has committed an intentional tort. Therefore, the statutory employer or principal can be liable to an injured workman in general only for compensation benefits.

Recent La. Jurisprudence has interpreted these statutes to require that four essential elements are necessary for an application of the statutory employer concept. Vincent v. Ryder Enterprises, Inc., 352 So.2d 1061 (La. App. 3d Cir. 1977) the court stated:

“There are four essential elements which must be present in order for R.S. 23:1061 to be applicable:
“(1) The relationship of principal-contractor (as distinguished from another type of relationship, i. e., vendor-vendee) must exist.
“(2) There must be a contract between the principal and contractor for the execution by the contractor of the whole or any part of the work being undertaken by the principal.
“(3) The ‘work’ which is the subject of the contract must be part of the principal’s trade, business or occupation.
“(4) The injured employee must be engaged in the execution of the ‘work’ as described above.”

T. L. James contends that it is the statutory employer of the plaintiff, and therefore, its liability to him is limited to compensation benefits as per R.S. 23:1032. The basis of their argument stems from the application of Coco v. Winston Industries, Inc., 330 So.2d 649 (La.App. 3d Cir. 1976) amended on other grounds 341 So.2d 332 (La.1977). In that case the plaintiff was employed by Sherwood Homes, Inc. (hereinafter referred to as Sherwood) of Natchi-toches, La. at the time of his injury. Sherwood was wholly owned and controlled by Winston Industries, Inc. (hereinafter referred to as Winston). Both of these corporations were engaged in the business of manufacturing and selling mobile homes with Sherwood operating as one of several regional plants in the Winston system. The relationship existing between these two corporations further discloses that Sherwood was in existence purely for the benefit of Winston and that the former had no actual existence other than as an alter ego of the latter. Moreover these corporations were completely run by one individual, and the same individuals who formed Winston also formed Sherwood. The plaintiff was paid through the account of Winston. The plaintiff brought an action for tort damages against Winston. Based on the relationship between Winston and Sherwood the court held that the former was the principal of the latter within the meaning of R.S. 23:1061. Therefore, the plaintiff’s remedy was limited to Workmen’s Compensation benefits in accordance with R.S. 23:1032.

Consideration of the record in this matter reveals that T. L. James has failed to state the material facts necessary to bring it within the purview of Coco v. Winston Industries, Inc., supra. There has been no showing that Atlas is a mere alter ego of T. L. James. Moreover, there is no statement that Atlas exists purely for the benefit of T. L. James, or that the plaintiff was paid by T. L. James.

A further review of the pleadings and affidavits filed by this defendant fails to establish material facts that meet the four elements required for the imposition of the statutory employer concept, as per Vincent v. Ryder Enterprises, Inc., supra. There is no indication that there was a principal-contractor relationship between T. L. James and Atlas regarding the construction of the Mississippi river bridge in Destrehan, La., nor is there a statement as to the existence of a contract between these two parties with respect to this particular construction job. Moreover, there is no statement that the plaintiff was engaged in the execution of the work of T. L. James via employment by Atlas. Consequently, the mover has failed to carry his burden of establishing that there is no genuine issue of material fact regarding the issue of whether T. L. James is the statutory employer of the plaintiff.

In summary, we conclude that genuine issues of material fact remain as to whether T. L. James is the statutory employer or principal of the plaintiff. Therefore, the judgment of the trial court sustaining the motion for summary judgment with respect to T. L. James is hereby reversed.

Regarding the exception of no cause of action filed by T. L. James we find that the trial court acted properly in sustaining it. However, we further find that the trial court was in error in not permitting the plaintiff leave to amend his petition as the grounds of the objection could be removed by an amendment. La.C.C.P. Art. 934 establishes that: “When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by court.” Also, see Menard v. Associated Royal Crown Bottling Co., 249 So.2d 363 (La.App. 4th Cir. 1971).

The grounds of the objection raised by the defendants rests upon the language used by the plaintiff in Article II of his petition. The plaintiff alleges that he was employed by Atlas and/or T. L. James and that he was working for Atlas and/or T. L. James at the construction site of the new Mississippi River Bridge. Considering the unresolved employment relationships as argued before us it is apparent that some basis for amendment may exist.

Accordingly, we remand this matter to the trial court with instructions to grant plaintiff a reasonable time within which to amend his petition against T. L. James.

THE NAMED INDIVIDUALS.

Recall from above that the exclusive provision of R.S. 23:1032 limits the remedy of an injured workman against his employer or principal for matters other than intentional torts to the benefits as provided in the Workmen’s Compensation Act. This exclusive provision also includes “.... any officer, director, stockholder, partner or employee of such employer or principal ....”. For those individuals who do not fall within the terms of this provision, R.S. 23:1101 permits a tort remedy for damages sustained by the injured workman. This statute states:

“When an injury or compensable sickness or disease for which compensation is payable under this Chapter has occurred under circumstances creating in some person (in this Section referred to as third person) other than those persons against whom the said employee’s rights and remedies are limited in Section 1032 of this Chapter, a legal liability to pay damages in respect thereto, the aforesaid employee or his dependents may claim compensation under this Chapter and the payment or award of compensation hereunder shall not affect the claim or right of action of the said employee or his dependents, relations, or personal representatives against such third person, nor be regarded as establishing a measure of damages for the claim; and such employee or his dependents, relations, or personal representatives may obtain damages from or proceed at law against such third person to recover damages for the injury, or compensable sickness or disease.”

All of the five individual defendants filed a motion for summary judgment. The same rules of law for this procedural device applied above to the two corporate defendants are applied here. In connection with their motion, an affidavit was filed by the payroll Supervisor of both Atlas and T. L. James. According to this affidavit, the defendants, Augie Adams and Tom Sellers, were employed by Atlas in 1977 at the time of the accident. The plaintiff offers no response to this document and apparently relies on his original pleading which indicates that these two defendants were supervisors and/or executive officers of Atlas and/or T. L. James. In accordance with the principles cited above concerning motions for summary judgment and in view of our finding above granting summary judgment in favor of Atlas as employer of the plaintiff, we conclude that these two defendants fall within the terms of the exclusivity provision of LSA-R.S. 23:1032. Therefore, they are immune from the tort action brought by the plaintiff.

The affidavit of the payroll supervisor of Atlas further indicates that the defendant F. Ben James was employed by T. L. James in 1977 at the time of the accident. As indicated above, a genuine issue of material fact remains as to whether T. L. James can be regarded as the principal or statutory employer of the plaintiff. Accordingly, we find that a genuine issue of material fact also remains as to whether F. Ben James can be classified as an employee of the statutory employer or principal and therefore, within the exclusion established in R.S. 23:1032.

Regarding the other defendant, John T. James, the record indicates that he was not employed by Atlas or T. L. James at the time the plaintiff was injured. This clearly places him within the terms of LSA-R.S. 23:1101 thereby permitting the plaintiff to assert a cause of action in tort against him. Consequently, the trial court was in error in finding that there was no genuine issue of material fact regarding the possible tort liability of this defendant to the plaintiff.

Based on the foregoing we conclude that the judgment of the trial court granting the summary judgment as to the four defendants was in error and must be amended so as to exclude the latter two defendant from such a judgment. Summary judgment was properly granted as to the first two defendant, namely Augie Adams and Thomas Sellers.

Regarding the exception of no cause of action, we face a problem similar to the one addressed previously. The plaintiff in Article I of his petition alleges that the individual defendants, Augie Adams, Tom Sellers, F. Ben James and John T. James are executive officers of Atlas and/or T. L. James. The judgment of the trial court sustaining this exception was correct as this portion of the petition is a proper grounds for objection. However, as previously indicated LSA-C.C.P. Art. 934 permits an amendment to the petition where the grounds for the objection can be removed. An amendment pertaining to the defendants Augie Adams and Tom Sellers would be of no consequence as they were dismissed by the decision to grant them a summary judgment. Regarding the two remaining defendants an amendment to the petition is possible which would remove the grounds upon which the exception of no cause of action is based. Accordingly, we remand this matter to the trial court with instructions to grant the plaintiff a reasonable time within which to amend his petition against F. Ben James and John T. James.

Therefore, we affirm the summary judgment in favor of Atlas Construction Company, Inc., Augie Adams and Tom Sellers, dismissing plaintiff’s suit against them; we reverse the summary judgment in favor of T. L. James & Co., Inc., F. Ben James and John T. James and dismiss their motions for summary judgment; we amend the judgment maintaining the exception of no cause of action filed by T. L. James & Company, Inc., F. Ben James and John T. James to vacate that portion dismissing plaintiff’s suit against them and instead require a reasonable time to be fixed by the trial court to permit amendment of the petition to state a cause of action.

AFFIRMED IN PART, REVERSED IN PART, AMENDED AND REMANDED IN PART.

      . This defendant was never served and he was not included in the judgment now on appeal.


source: Caselaw Access Project

author: SCHOTT, Judge.

license: Public Domain

text:
    VALLEY BANK OF NEVADA v. Patricia LIVACCARI et al.
    No. 11831.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.

      Lawrence M. Lehmann, Midió & Leh-mann, New Orleans, for plaintiff-appellant.
    Garland R. Rolling, Metairie, for defendants-appellees.
    Before GULOTTA and SCHOTT, JJ., and MELVYN J. PEREZ, Assigned Judge.
   SCHOTT, Judge.

Plaintiff has appealed from a dismissal without prejudice of its revocatory action on a dilatory exception of prematurity filed by appellees Patricia Livaccari and Alma Zahn Livaccari pursuant to C.C.P. Art. 926. Plaintiff seeks to revoke an act of sale passed on June 15, 1978, from Alma Zahn, divorced wife of, and John J. Livaccari to their daughter Patricia Livaccari pursuant to C.C. Arts 1970 et seq. It alleged in its petition filed on February 27, 1980, that it had taken a judgment against John J. Li-vaccari in the United States District Court in Nevada and had this judgment recognized by the United States District Court for the Eastern District of Louisiana on February 22, 1980. Appellees’ exception of prematurity was based on the failure of plaintiff to have this judgment recognized and made the judgment of the Louisiana court pursuant to C.C.P. Art. 2541. The principal issue is whether plaintiff’s suit was premature by virtue of its failure to comply with C.C.P. Art. 2541, considering the provisions of C.C. Art. 1972 governing the revocatory action which reads as follows:

“It can not be exercised by individual creditors, until their debts are liquidated by a judgment, unless the defendant in such action be made party to the suit for liquidating the debt brought against the original debtor in the manner hereinafter directed.”

Also before us is plaintiff’s motion to remand the case to the trial court on the ground that subsequent to the date of the judgment now on appeal, rendered on May 16,1980, it filed a petition in the state court for recognition of the judgment of the United States District Court and obtained a judgment under C.C.P. Art. 2541 on December 10,1980. It asserts that this appeal was rendered moot by virtue of its subsequent Art. 2541 action.

In this court plaintiff does not abandon its original position that its action was not premature and would have this court consider its motion to remand as an alternative to the reversal of the judgment appealed from.

C.C. Art. 1972 provides that the original debt must first be liquidated by a judgment against the debtor unless the revoca-tory action makes the original debtor a party for the purpose of liquidating the debt in that action. In Williams & Miller v. Jones, 180 So. 140 (La.App. 1st Cir. 1938) the court explained the rationale of the article as follows:

“.... Otherwise, and in the absence of a valid judgment, the anomalous situation might arise of having a sale made by the debtor revoked, when, for some legal reason, the creditor is not entitled to a judgment against the debtor in the claim. The creditor’s right or interest in having the sale of his debtor’s property revoked does not arise until the creditor has secured a judgment against his debtor, which judgment must be procured either before or at the time of decreeing the nullity of the sale.”

In its petition plaintiff alleged that John J. Livaccari, the original debtor, was made a defendant but it does not seek a judgment against him in these proceedings. It simply alleged that it had already taken a judgment against Livaccari in the United States District Court in Nevada and had it recognized in the United States District Court in Louisiana. Parenthetically, we note that the record does not indicate that Livaccari was ever served in these proceedings.

Art. 2541 is clearly applicable to this situation providing that a party seeking recognition of a judgment of a court of the United States must bring a proceeding in a Louisiana court to have the judgment recognized and made the judgment of the Louisiana court.

Plaintiff seeks to avoid the requirements of C.C.P. Art. 2541 by invoking the provisions of R.S. 13:4204, which provides that judgments rendered by the United States Courts in Louisiana when recorded in the mortgage records rank as judicial mortgages to the same extent as recorded judgments of the courts of this state. However, this statute by its own terms has the limited purpose of elevating judgments of the United States Courts to the rank and status of judicial mortgages and can hardly be stretched to eliminate the necessity of recognition under Art. 2541 for purposes of bringing the revocatory action under C.C. Art. 1972.

We conclude that the judgment of the trial court was correct, plaintiff’s action was premature, and it was properly dismissed without prejudice pursuant to C.C.P. Art. 933.

This would seem to be dispositive of the case since Art. 933 requires a dismissal of a suit brought prematurely. However, plaintiff contends that its subsequent Art. 2541 action to have the United States District Court judgment recognized somehow breathed life back into its suit, and would have us remand the case to the district court for further proceedings. We are unable to reach that conclusion. First, the question before us is the validity vel non of the judgment maintaining the exception of prematurity and dismissing plaintiff’s case without prejudice. The subsequent actions taken by plaintiff in another proceeding in the district court are beyond the appellate record and will not be considered in this appeal. Second, in order for plaintiff to bring the matter of its belated obtaining of recognition of the United States District Court’s judgment in the state court it would have to amend its original petition in these proceedings and properly allege these developments. Where a suit has been dismissed on exception of prematurity the deficiency may not be cured by amended pleadings. Duncan v. Duncan, 359 So.2d 1310 (La.App. 1st Cir. 1978) and Bank of St. Charles and Trust Co. v. Ransome, 343 So.2d 1206 (La. App. 4th Cir. 1977). Finally, the clear intent of the legislature in the drafting of C.C.P. Art. 933 would be frustrated if plaintiff were allowed to have its suit reinstated and continued after the suit was properly dismissed as premature by the simple expedient of taking prerequisite action after the judgment was rendered. Appellees were improperly sued in this ease and they are entitled to the relief mandated by Art. 933. It is now plaintiff’s burden to institute new proceedings if it has now complied with the law.

Accordingly, the judgment appealed from is affirmed and the motion to remand is denied.

AFFIRMED.

MOTION TO REMAND DENIED.


text:
    Mutana SMITH et al v. Anetta LONDON et al.
    No. 11837.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.
    John J. Farrell, Jr., New Orleans, for Clarence Mason, Sr., Cedric Troy Mason, Debra Ann Mason Brooks, Clarence Mason, Jr., Howard Mason, James Eric Mason and Vera Louise Mason Ross.
    David M. Cambre, Dillon & Cambre, New Orleans, for defendants-appellees.
    Before GULOTTA and SCHOTT, JJ., and MELVYN J. PEREZ, Assigned Judge.
   SCHOTT, Judge.

Plaintiffs, who are the parents and siblings of decedent Lawrence Mark Mason, appeal from a judgment dismissing their wrongful death action brought under LSA C.C. Art. 2315. Their petition was filed jointly with that of Mutana Smith, the mother and natural tutrix of Bethamie Smith, the illegitimate child of Lawrence Mark Mason. The trial court dismissed appellants’ suit on exceptions of no right and/or cause of action noting that “the defect complained of in the exceptions cannot be cured by amendment.”

The issues in this court as framed by appellants are:

“1) Whether the existence of an illegitimate child of a decedent can exclude and prevent the parents of the decedent and the other classes of beneficiaries under Article 2315 from recovering for the wrongful death survivorship rights.
2) Whether a trial court can dismiss the cause of action of the parents of a decedent without allowing them to amend their petition, alleging that the decedent died leaving no children which would then clearly grant to them a cause of action even if the existence of illegitimate children does exclude the cause of action of parents under Article 2315.”

The first issue was settled in Warren v. Richard, 296 So.2d 813 (La.1974). The court held that an illegitimate child is in the same position as a legitimate child in a wrongful death action under Art. 2315. That being so, parents and siblings are precluded from recovery where the decedent is survived by an illegitimate child. See also Willis v. Winford Company, Inc., 366 So.2d 193 (La.App. 2nd Cir.1978).

The second issue is more troublesome. While it is true that appellants alleged jointly with Mutana Smith in the petition that Bethamie Smith was the legitimate child of Lawrence Mark Mason and state in their brief to this court that it is “the belief of all the plaintiffs that Betha-mie Smith was the illegitimate child of the deceased, Lawrence Mark Mason,” in their answer to the petition of Mutana Smith in behalf of Bethamie Smith, defendants simply denied the allegation of Bethamie’s illegitimacy for lack of sufficient information to justify a belief. Thus, in order to recover, Mutana Smith must prove that Betha-mie Smith is the illegitimate child of the decedent. Defendants’ reliance on Cheatham v. City of New Orleans, 378 So.2d 369 (La.1979) to the effect that the allegation by appellants that Bethamie Smith was decedent’s illegitimate child constituted a judicial admission is misplaced. That allegation is not binding on defendants and the possibility exists that the proof would fail leaving defendants in the posture where no one would be left to assert the wrongful death action.

C.C.P. Art. 934 requires the court to order an amendment where the grounds for an exception may be removed thereby. Since appellants may remove the objection by the alternative pleading that Bethamie Smith is not the illegitimate child of the decedent the case is remanded to the trial court for the purpose of allowing such an amendment.

Defendants question the standing of the siblings to assert the claim, correctly pointing out that they would be beneficiaries only had the decedent left no children or parents. This suit was filed by decedent’s mother and father in April, 1979, but in December decedent’s mother died and her surviving children who are the original petitioners as siblings of decedent were substituted as plaintiffs in their capacity as the heirs of decedent’s mother. In this capacity they are entitled to file amended pleadings and pursue the claim along with decedent’s father.

Accordingly, that portion of the judgment maintaining the exception to appellants’ petition is affirmed, but that portion of the judgment dismissing their claim is reversed and set aside. The case is remanded to the trial court in order to afford plaintiffs an opportunity to amend their petition in order to stake a cause of action consistent with this opinion. All costs of this appeal are taxed against defendants with the remaining costs to await the outcome of the trial.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.


text:
    Denise C. HOLMAN v. NEW ORLEANS PUBLIC SERVICE, INC. and Ronald A. Johnson and Jeremiah Jenkins.
    No. 11886.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.
    Floyd F. Greene, New Orleans, for defendants-appellants, New Orleans Public Service, Inc. and Ronald A. Johnson.
    Allain F. Hardin, New Orleans, for plaintiff-appellee.
    Before GULOTTA and SCHOTT, JJ., and MELVYN J. PEREZ, Assigned Judge.
   SCHOTT, Judge.

Plaintiff was a passenger on a New Orleans Public Service Bus operated by Ronald A. Johnson when there was a collision between the bus and an automobile operated by defendant Jeremiah Jenkins. NOPSI and Johnson have appealed from a judgment awarding plaintiff $3,350 against them and dismissing her claim against Jenkins. In his reasons for the judgment the trial court stated:

“This is a swearing match and Mr. Jenkins sounds like he is telling the truth. The accident was solely the fault of the bus operator.”

As the bus was proceeding on North Robertson Street in the City of New Orleans the accident happened at the intersection with France Street. North Robertson Street traffic had the right-of-way by virtue of a stop sign facing France Street traffic. According to Johnson, he observed Jenkins’ automobile approaching North Robertson Street from France Street on the right of the bus and he slowed the bus down, but when Jenkins came to a stop Johnson proceeded across the intersection. Johnson testified that Jenkins shot out in front of him at this stage and the collision was unavoidable. According to Jenkins, traffic was heavy on North Robertson Street, and after he stopped on France Street he was given a signal by the bus driver to cross over in front of the bus. As he was doing so his automobile was struck by the front of the bus between the left rear door and rear wheel of his automobile.

Plaintiff proved that she was injured while a fare paying passenger so that the burden shifted to appellants to show that Johnson was free from negligence. Galland v. New Orleans Public Service, Inc., 377 So.2d 84 (La.1979). On appeal we are not in a position to substitute our evaluation of the two drivers’ credibility for the trial judge’s. Accepting Jenkins’ testimony as true there is no basis for us to hold that appellants carried their burden to show freedom from negligence.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


author: GARRISON, Judge. REDMANN, Judge,

text:
    Andrew J. WARE v. Elizabeth P. WARE.
    No. 11426.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.
    Andrew J. Ware, in pro. per.
    Santo A. Dileo, New Orleans, for defendant-appellant.
    Before REDMANN, GULOTTA and GARRISON, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court making executory past-due alimony, increasing alimony, denying past due child support, and awarding attorney’s fees for prosecution of the arrearages. From that judgment, which we affirm, Andrew Ware appealed.

Plaintiff and defendant were married on December 24, 1955. Two children were born of the marriage, Bobby William Ware (born November 3, 1956) and Andrew Jay Ware (born September 1, 1965). After a number of separations and reconciliations, Mr. and Mrs. Ware separated for a final time in 1974.

After a full trial on the merits, the district court rendered a judgment of divorce in favor of Mrs. Elizabeth (Birdie) Panky Ware and against Andrew J. Ware on April 1,1975. The judgment incorporated by reference and continued in effect certain alimony, and child support provisions. A number of other rules to increase/decrease/terminate child support and/or alimony, as well as rules to make arrearages executory and contempt rules were disposed of through the years.

On February 16, 1979, Elizabeth Ware filed a rule to make alimony and child support arrearages executory and for contempt and a rule to increase alimony. She alleged arrearages in the amount of $2,375.00 and sought attorney’s fees for the prosecution thereof.

After trial on the merits, the district court rendered judgment on May 18, 1979, as follows: “IT IS ORDERED THAT:

1. The alimony in the amount of $347.84 which the court holds to be in arrears is hereby made executory;
2. The court denies the claim for arrear-age in child support;
3. The court hereby increases the amount of alimony to $480.00 per month commencing April 1, 1979;
4. The court hereby awards the sum of $150.00 to mover, Mrs. Birdie Pankey Ware for attorney’s fees.”

The district judge additionally provided the following reasons for judgment:

“The court has had three issues presented. The first is for arrearage in child support dating back to August of 1978. The evidence conclusively proves to the court that Mrs Ware surrendered the custody of her child to Mr. Ware in open court and cannot now claim that child support should accrue from the date that she surrendered custody of said child.
The court has the question of past due alimony during the period of March, April and one-half of May of 1978. The court concludes from the evidence that the husband paid $180.00 on March 23, 1978 towards his alimony payments and is entitled. to that sum plus $102.16 paid on her behalf for utility bills incurred by Mrs. Ware, giving him credit of $282.16 towards the arrearage of $450.00, or a new arrearage of $167.84.
The court is of the opinion that the wife’s needs and lack of income necessitate an increase in permanent alimony and the court hereby awards her the sum of $480.00 per month, effective as of April 1, 1979.
The court has also awarded attorney’s fees in the amount of $150.00 in view of its finding that the husband is in arrears in his payments of alimony.”

In response to a motion for a new trial, heard with a rule to change custody and make past due alimony executory, the district judge rendered judgment on June 28, 1979, amending the May 18th judgment as follows:

“IT IS ORDERED THAT:
1. The alimony in the amount of $270.00*. which the Court holds to be in arrears is hereby made executory;
2. The permanent care, custody and control of the minor, Andrew Jay Ware is granted unto the father, Andrew J. Ware, subject to the reasonable visitation rights of: Every other week-end from Saturday at 8:00 p. m. commencing June 16, 1979 and the first week of July and the first week of August in favor of the mother, Elizabeth P. Ware.
3. The motion for New Trial filed by Andrew J. Ware is denied.
4. All other orders and decrees of the May 18, 1979 Judgment, not in conflict with the above orders, is adopted herein by reference.
* * * * * *
* Note: Court gives husband credit for only $180.00 against alleged arrearage of $450.00, leaving a balance of $270.00.
F.V.Z. (Honorable Frank V. Zacearía, Judge).”

On appeal, Mr. Ware argues that the trial judge erred in increasing alimony to $450.00 a month from $180.00.

Mrs. Ware is unemployed and has no monthly income other than alimony. Her monthly expenses amount to $806.58 as follows:

Rent or note . -<y> LO Ln
Water.
Electricity . G"'
Telephone . M
Food. N> O
Clothes and Cleaning..
Doctor.
Medication.
Auto Insurance.
Gasoline .
Maintenance. .10.00
Finance Co.
$806.58

In contrast to his ex-wife’s circumstances, Mr. Ware’s financial status has improved. He earns $2,258.34 a month. He has remarried a woman who earns $1200 to $1400 monthly and he lives in his new wife’s home which produces $200.00 monthly rental income. He received $63,000.00 from the sale of immovable property in 1978, owns $38,-850.00 worth of Exxon stock, and had $8,000.00 in a thrift fund.

In contrasting the relative financial situation of the parties, we cannot conclude that the trial judge abused his discretion in increasing the alimony award by $270.00 per month. Additionally, we find that Mrs. Ware is clearly entitled to an award of attorney fees incurred in order to make executory past due alimony.

For the reasons discussed, the judgment of the district court is affirmed; all costs to be paid by appellant.

AFFIRMED.

REDMANN, J., concurs with written reasons which are attached hereto.

REDMANN, Judge,

concurring.

The ex-husband’s basic complaint over the alimony increase from $180 to $480 monthly is that the ex-wife is not in necessitous circumstances in that she received $28,000 cash and $5,000 stock in part settlement of the community 14 months before trial; in that she has a substantial interest in the thrift fund he has with his employer but she will not accept its cash value from him; in that she has inherited substantial property from her father; and in that she is a trained secretary who has worked as such, able to support herself by her earnings (and also has a license to sell real estate).

The ex-husband argues that, notwithstanding that the ex-wife has spent the $28,000 cash (in minor part on a new car), she is still not in such need that he should support her. The ex-husband complains “it is obvious that she wants to live from the work of others as long as the courts will let her.” One answer is that today the courts can no longer allow alimony to an ex-spouse who is capable.of self-support but who unjustifiably declines to work.

The Louisiana Legislature amended C.C. 160, by Acts 1979 No. 72, to make alimony available to a needy spouse of either sex, but also to provide:

In determining whether the claimant spouse is entitled to alimony, the court shall consider his or her earning capability, in light of all other circumstances.

That 1979 amendment, effective June 29, 1979, was not yet the law when the basic judgment of May 18, 1979, was rendered in this case. Thus that 1979 amendment did not apply to the May 18 judgment, and that judgment was not in error in failing to consider earning capacity because the Louisiana supreme court had held under the prior law that an ex-wife’s earning capacity was irrelevant to her claim for alimony, in Ward v. Ward, La.1976, 339 So.2d 839.

But the law does now provide for consideration of a claimant ex-spouse’s earning capacity, and the changed law has been interpreted to affect existing alimony decrees because they are always subject to change. See White v. White, La.App. 1 Cir. 1980, 393 So.2d 240. Thus although this wife’s earning capacity was not a factor in the May 18, 1979 judgment now before us for review, the ex-husband may present that issue in another proceeding in the trial court if he desires (although the wife’s alleged migraine headaches and the apparent return to her of custody of their teenage son are circumstances that might to some extent oblige her not to work anyway).

On September 27, 1979 the ex-husband moved to terminate alimony on the basis of the 1979 amendment. Whether or when that motion was heard is not shown by our record. The duplicate record does contain, however, a minute clerk’s entry of February 8, 1980, indicating that the court ordered alimony reduced to $150 (and also ordered child support of $400, the production of information concerning the ex-wife’s Mississippi inheritance from her father, and the execution of documents to “divide stock”).

It thus appears that the ex-husband is now obtaining some relief on his various complaints. At the time of the May 18, 1979 judgment, however, under the law then in effect that judgment was not erroneous.

      . In order to pay her house note, Mrs. Ware made a $900.00 loan from Rayco Finance Company. Additionally, her oldest son has occasionally lent her money to meet expenses.


author: GARRISON, Judge.

text:
    SASLOW-DENTAL SUPPLIES v. Dr. Gene L. DONGIEUX.
    No. 11782.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.
    Favret, Favret, Demarest & Russo, Clarence F. Favret, Jr., New Orleans, for plaintiff-appellant.
    Roberts & Katz, Bradford R. Roberts, II, New Orleans, for defendant-appellee.
    Before GARRISON, CHEHARDY and BARRY, JJ.
   GARRISON, Judge.

This is an appeal from judgment of the district court dismissing the plaintiff’s suit on an open account with an outstanding balance of $1,951.39, resulting from the sale and repair costs of an orthodontic x-ray machine. In addition to a general denial, the defendant-purchaser raised the affirmative defense of compensation under C.C.P. Art. 1005, seeking a set-off award, and alleging improper repair on the part of the plaintiff which resulted in destruction of the x-ray machine.

After full trial on the merits, the district court rendered judgment dismissing plaintiff’s suit. The judgment reads as follows:

“This matter was tried on January 9, 1980. For reasons orally assigned, plaintiff’s suit is dismissed at their costs.
JUDGMENT READ, RENDERED AND SIGNED this 10th day of January, 1980.”

From that judgment, plaintiff appeals alleging that the trial court erred in applying a set-off because the defendant’s claim was an unliquidated debt. Plaintiff argues that in order for set-off to be applied there must exist two separate and distinct liquidated debts of substantially equal value. While plaintiff is substantially correct in that statement of the law, the statement fails to apply to plaintiff’s case. Plaintiff’s action, once confronted with the affirmative defense, was not a liquidated claim, but rather was contested debt.

"... A contested debt ... is not liquidated one ...” 2 Pothier’s Obligations, n. 174.
“When there is contestation on a debt, it is not liquidated ...” Levasseur, Precis in Conventional Obligations, p. 69 (Michie Co. 1980).
See also: Hartley v. Hartley, 349 So.2d 1258 (La.1977); Saunier v. Saunier, 217 La. 607, 47 So.2d 19 (1950).

Both alleged debts were unliquidated until the rendition of judgment in the instant appeal.

On the basis of the contested debt, the plaintiff failed to overcome the burden of proof which re-shifted to him once defendant showed that plaintiff’s repairman was indeed responsible for the damage. We cannot conclude that the trial judge was manifestly erroneous in this factual determination. Arceneaux v. Domingue, 365 So. 1330 (La., 1978).

For the reasons discussed, the judgment of the district court is affirmed.

AFFIRMED.

      . No written or oral reasons for judgment were provided.


text:
    Frank Abbott FERGUSON, Jr. v. Deborah McManus FERGUSON.
    No. 11787.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.
    Law Offices of Guy W. Olano, Jr., Randall C. Roth, Kenner, for plaintiff-appellant.
    Conner, Martinez & Miles, James S. Conner, Metairie, for plaintiff-appellee.
    Before GARRISON, CHEHARDY and BARRY, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court denying the father’s rule to change custody and retaining custody with the mother. The judgment also contains a divorce judgment in favor of the father and a statement of visitation privileges, but only the custody judgment has been appealed.

On appeal, the father contends that the court erred in failing to award custody to him under the best interest of the child test on the grounds that the mother has been living in open concubinage with a man who is separated, but not divorced and that the mother’s living arrangements require that the children, two sisters, Andrea, ages T-k years and Lisa, age 3V2 years, be separated.

Initially, we note that the standard used by the trial court is the “best interests of the child” test under C.C.Art. 157. In reaching a determination of best interest, the trial judge must look to the totality of the circumstances.

In situations where the custodial parent is living in open concubinage, our courts have repeatedly and rightfully expressed concern that the living arrangement may result in a detrimental effect on the moral stability of the minors. Cleeton v. Cleeton, 383 So.2d 1231 (La.1980). However, even in the most flagrant cases, our courts still examine the relative situations of both parties. In Hildebrand v. Hildebrand, 391 So.2d 577 (App. 4th, 1980) the custodial mother was not only living in open concubinage, but also was hospitalized for an emotional breakdown and was shown to have had her daughter serve her and her paramour breakfast in bed. Additionally, the children would join her and her paramour in bed to read the newspaper. Even in the Hildebrand case, this court reviewed the trial court’s examination of the situation of the non-custodial parent in order to determine if, in light of the totality of the circumstances, the best interests of the children would best be served by the retention of custody in the mother.

On appeal, the standard of review to be applied by this court is whether the trial court clearly abused its discretion in awarding custody to a particular parent. Fulco v. Fulco, 259 La. 112, 254 So.2d 603 (1971); Cleeton v. Cleeton, supra. We find that in light of the totality of the circumstances, the trial judge did not clearly abuse his discretion:

I SITUATION OF THE CUSTODIAL PARENT

The custodial mother is living with a man named Richard Powell. He gets his divorce on June 9 and they will be married on August 2. The dress, rings and reception are already partially paid for and the arrangements were made before the father filed his rule to change custody.

Richard Powell appears to be fairly fit as a step-parent, having been awarded the custody of his two children, Paul, age 17 years, and Deborah, age 14 years, in his divorce proceeding. Powell helps to financially support Lisa and Andrea. At the time of trial, Lisa, the younger child, resided with Powell, his two children, and the custodial mother. Andrea resides with the maternal grandparents who help to financially support her.

Although the children reside in separate homes, the two sisters maintain close daily contact and are, in fact, not separated that often. Lisa stays at the grandmother’s house during the day while the mother is at work. The mother maintains daily visits with Andrea. About three nights a week Andrea and Lisa have dinner at Powell’s house. Andrea spends the weekends with Lisa at Powell’s house except for those occasions when they visit their father. Occasionally, during the week, Andrea stays with Lisa at the Powell’s or Lisa stays overnight with Andrea at the Grandmother’s. Lisa has her own room at Powell’s house and Andrea has her own room at the grandmother’s house.

Both mother and the grandmother testified that the reason why Andrea is living at a separate location is because of her school situation. The school is near to the grandmother’s house and Andrea can get there easily. It is the same school she was attending prior to her parents’ separation. Andrea first began staying at the grandmother’s house when the mother was working at an insurance agency where her hours ran until 5:00 p. m. and she could not pick Andrea up after school.

II SITUATION OF THE NON-CUSTODIAL PARENT

Frank Ferguson is an electrical subcontractor. His working hours are generally 7 a. m. to 4 p. m. six days a week. He is living with his mother, Audrey, and his 17 year old brother, Barry, at his mother’s house. Audrey Ferguson has a three bedroom house. At present, she, Barry, and Frank each have their own room. Should the girls move in with her, they would share the bedroom with Audrey. There is some evidence that the father has a violent temper.

The oldest daughter, Andrea, has a tendency to begin stuttering shortly before she sees her father. When she stays with him for a number of hours, her stuttering is much worse. The only time she stutters is when she is with her father. The mother testified that when the little girl was much younger, the father “pulled Andrea around.”

Having thus reviewed the totality of the circumstances, we cannot conclude that the trial judge clearly abused his discretion in awarding custody to Deborah McManus, divorced wife of Frank Ferguson.

For the reasons discussed, the judgment of the district court is affirmed.

AFFIRMED.


author: CHEHARDY, Judge.

text:
    Beverly H. Stanley, wife of and Thomas L. STANLEY, Jr. v. Sheron Lynne Cambias, wife of and Mark O. FALGOUST.
    No. 11870.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.

      Post, Reinhardt & Rougelot, Daniel A. Post and Alvin Perry, Jr., Metairie, for plaintiffs-appellees.
    Dodge, Friend, Wilson & Spedale, Douglas S. Draper, New Orleans, for Bernard Lumber Company, appellants-lienors.
    Before BOUTALL, CHEHARDY and STOULIG, JJ.
   CHEHARDY, Judge.

Bernard Lumber Company, Inc. (Bernard), appeals a trial court decision on a rule to rank encumbrances which ordered that a materialman lien in the sum of $2,230.82 filed in favor of Bernard on February 20,1980 be cancelled and erased from the mortgage records of the Clerk of Court for the Parish of Jefferson, State of Louisiana. The judgment further decreed that the lien had been filed after the expiration of the 60-day period for timely filing of liens as provided by LSA-R.S. 9:4812. As part of its judgment, the district court also made a finding of fact that construction on the subject building had been abandoned on or about August 15, 1979.

This case involves a home which was being constructed by defendants, Sheron Lynne Cambias, wife of and Mark 0. Fal-goust, upon Lot 20, Square 4, Chateau Estates North, Section 1, in Kenner, Louisiana, for their personal residence. Plaintiffs, Beverly H. Stanley, wife of and Thomas L. Stanley, Jr., filed a petition for executory process on February 11, 1980, foreclosing on a $50,000 mortgage which they held on the property and asking the court to issue a writ of seizure and sale; and subsequently plaintiffs filed a rule to rank encumbrances.

At a hearing on the rule, Michael A. Kievit, who lives directly across the street from the subject property, testified that since January of 1979 he had gone through the house a minimum of once a week, checking on construction. He placed the time of the last delivery of materials to the site in August of 1979 and the time of the last work done at the site around the middle of October of 1979. He also testified that at the time of the hearing the house was only partly finished, not yet fit for habitation, and his testimony in these regards was uncontradicted.

Willard A. Eastin, assistant treasurer of Bernard, stated that he delivered materials to the construction site from August 7 through August 15, of 1979. He also testified that he met with Mark Falgoust, Rudy Brown and several other gentlemen on November 12, 1979, and was given the impression by Brown that he was going to subsidize Falgoust. He said he was asked to release the liens he had filed on other properties of Falgoust’s and not to file any other liens. Eastin said he also spoke to someone in Brown’s office on December 28, 1979, at which time he was given further assurance that papers were being drawn up by Brown’s attorney to give Bernard a guarantee, in order that the existing liens could be released, but that on January 18, 1980 he was told by a person in Brown’s office that he did not know what was happening.

Falgoust testified that he stopped construction on the project around August of 1979 because he did not have the money to complete it. He also said that he borrowed $50,000 from the Stanleys in October of 1979 to finish the house, but admitted that none of the money was actually applied to the construction job in Chateau Estates, but was diverted to other projects in another parish. He stated that at the time of the meeting in November of 1979, with Eastin and Brown, it was his intent to pay the Stanleys back the $50,000 and complete the house “if there was any way possible to do it.” He admitted that about a week before the February, 1980 foreclosure he also attempted to borrow $50,000 from his father-in-law to pay back the Stanleys.

LSA-R.S. 9:4812 provides in part:

“When the owner, or his authorized agent, undertakes the work of construction, improvement, repair, erection, or reconstruction, for the account of the owner, for which no contract has been entered into, or when a contract has been entered into but has not been recorded, as and when required, the owner or his authorized agent may file an affidavit that the work has been completed, then any person furnishing service or material or performing any labor on the said building or other work may record in the office of the clerk of court or recorder of mortgages in the parish in which the said work is being done or has been done, an affidavit of his claim, which recordation, if done within sixty days after the date of the affidavit of completion or if no affidavit of completion is filed within sixty days after the date of the last delivery of all material upon the said property or the last furnishing of services or the last performance of labor upon the same, by the said furnisher of material or services or the said laborer, shall preserve a privilege upon the building or other structure and upon the land upon which it is situated, in favor of any such person who shall have furnished service or material or performed any labor in connection with the said work or improvement, as his interest may appear. * * * ”

The above statute only addresses itself to situations where the work of construction has been completed. In the present case the owner did not complete the construction and it becomes material to this case to decide therefore when, if ever, the project was abandoned by him and the result of that abandonment under the law and jurisprudence. In addressing itself to that issue, this court stated in the case of First Wis. Nat. Bank of Milwaukee v. Novem, 349 So.2d 370, 374 (La.App. 4th Cir. 1977):

“Before an abandonment date can be fixed on an incomplete construction project, there should be some outward manifestation of the owner’s intent to give up the project. In Singer Lumber Co. v. King, 45 So.2d 567 (La.App.Orl. 1950), the court discussed this problem and its resolution is apposite here. We quote:

‘We are, however, not concerned with the question of when to commence the sixty-day period when the work is completed. Our problem is when to commence the sixty-day period when the work is never completed and the job is abandoned. The District Judge decided that even if it should be properly held that where there is an actual abandonment and the owner decides not to have the work continued, the sixty-day period commences at the time the owner so decides, nevertheless the lien filed by the plaintiff here was not filed too late because long after the discontinuance of the actual work on the project and, in fact, until well within the period of sixty days before the lien was filed, the owners had not abandoned the project and were still hoping to be able to have the contractor recommence operations.
‘We are not at all certain as to when the sixty-day period should commence when there is an actual definite abandonment of the job. We find it difficult to persuade ourselves that in such a case the beginning of the sixty-day period may be fixed by any mental determination of the owner. The statute, as interpreted by the Supreme Court, declares that where there is a contract, the materialmen and the laborers and others shall have sixty days from the acceptance of the work within which to file their liens, and that where there is no contract, they shall have sixty days from the completion of the work. A prospective lienor, therefore, need only watch the job to see when the work is completed since he knows that after it is completed he will still have sixty days within which to record his lien. So long as it is not completed, he knows that he still has ample time. How can he determine when the owner has agreed to an abandonment? How can he know that the time for the filing of his lien is running out? He will see that the work, in its incomplete state, is still unfinished and yet when he records his claim he will be told that more than sixty days before that the owner decided that he would go no further with the work and that, therefore, he has lost his lien.
‘Still if we assume that such result may be accomplished by the mere mental determination of the owner that the work is abandoned, we must nevertheless agree with our brother of the District Court that at the time this lien was filed there had not expired sixty days from the time at which the defendants still hoped to be able to persuade the contractor to proceed with the work. * * *’ 45 So.2d at 570.”

Both in First Wis. Nat. Bank of Milwaukee, supra, and Singer Lumber Co. v. King, 45 So.2d 567 (La.App.Orl.1950), the appellate courts affirmed a district court decision based on an apparent factual finding of the trial court judge that the mental determination of the owners was such that they did not “abandon” the project until some point less than 60 days prior to the filing of subject liens. In the present case, however, the trial court judge made a finding of fact, as part of his judgment, that Falgoust “abandoned” the project on August 15, 1979, and this court cannot find that manifest error that would be required for us to reverse such a finding on his part. Even if we assume that abandonment should have been the middle of October, the lien would still have been filed more than the required 60 days.

Falgoust’s testimony that he attempted to borrow money from his father-in-law as late as the week before the foreclosure was totally uncorroborated, and it was within the discretion of the trial court judge to disregard this allegation. Moreover, although Falgoust borrowed $50,000 from the Stanleys in October of 1979, this money was not used in furtherance of construction of the subject house but was diverted to other ongoing construction projects of the defendant, leaving the district court free to conclude that this act on Falgoust’s part did not indicate any intent not to abandon construction at the site in Chateau Estates. Similarly, the negotiations that went on between Bernard and Falgoust had as much, if not more, to do with other liens that Bernard had on properties belonging to Falgoust, and, once again, does not necessarily lead us to conclude that he did not intend to abandon the project in August of 1979, at which time Falgoust admitted he stopped construction on the home.

In making a finding of a mental determination of a witness or party to a suit, the personal observations of the district court judge are of great importance and, as noted above, this court does not find that his findings of fact in the present case are clearly wrong.

For the reasons assigned, the trial court decision is affirmed.

AFFIRMED.


author: CHEHARDY, Judge. STOULIG, Judge pro tern.,

text:
    Gladys RAYFIELD, in Behalf of Veronica Ann Rayfield, Lisa Marie Rayfield and Sidney Rayfield, III, and Carretha Stokes Rayfield, Individually, and in Behalf of Cassandre Marie Rayfield, Sidney Rayfield, III, Julie Marie Rayfield and Nathaniel Reginald Rayfield v. CITY OF NEW ORLEANS, National Building Service and Maintenance, Inc., and CNA Insurance Company.
    No. 12167.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.
    Rehearing Denied June 15, 1981.

      Seelig, Cosse & Frischhertz, Lloyd N. Frischhertz, New Orleans, for plaintiffs-appellants.
    Salvador Anzelmo, City Atty., Delbert G. Talley, Asst. City Atty., New Orleans, for the City of New Orleans, defendants-appel-lees.
    Before BOUTALL, CHEHARDY and STOULIG, JJ.
   CHEHARDY, Judge.

Gladys Rayfield, in behalf of Veronica Ann Rayfield, Lisa Marie Rayfield and Sidney Rayfield, III, and Carretha Stokes Ray-field, individually, and in behalf of Cassan-dre Marie Rayfield, Sidney Rayfield, III, Julie Marie Rayfield and Nathaniel Reginald Rayfield, appeals a district court judgment in favor of defendant City of New Orleans dismissing the plaintiff’s suit as to that defendant.

In giving his reasons for judgment, the trial court judge stated:

“Having carefully reviewed and considered the evidence adduced on the trial of this matter, and especially the testimony of the physicians, the Court is of the opinion that the death of the decedent was not the result of an ‘accident’ as defined by the provisions of the Workmen’s Compensation Statute and more particularly La.R.S. 23:1021(1).”

We agree and affirm.

At a trial on the merits of the case, the widow of the decedent, Sidney Rayfield, Jr., testified that on the day of his death, September 1, 1976, he left for work as usual at approximately 8 a. m. to go to his job at City Hall, where he was employed in the Department of Collections, and nothing eventful occurred prior to his leaving. She stated he returned from this job at around 5:30 that evening, at which time he complained of having leg pains and chest pains, ate dinner and then left for his second job with a janitorial service.

Mrs. Rayfield said the next time she saw her husband was at approximately 10:45 that evening when he returned complaining of chest pains. About 30 minutes later the decedent left for the hospital and she later learned he had died on the way there.

It was established from the testimony of John McLemore, a coworker of the decedent also employed by the City, that Ray-field and he worked together on the afternoon of the day of his death removing parking meter housings which were in the way of construction work being done on North Rampart Street. He stated that the housings being removed by Rayfield, himself and another worker weighed approximately 30 or 35 pounds apiece. He said Rayfield never complained of having chest pains either on the day of his death or on any other occasion, but the decedent had said he had a problem with his leg.

McLemore also said that on the date in question the weather was hot and humid, and the men took one break sometime between the hours of 1:30 and 3:30 p. m. before they returned to the shop. He stated that on that morning he and Rayfield did not work together because they were collecting routes individually. McLemore also said he had been working with the decedent since approximately July of 1973 and Rayfield had come to the job some six months prior to that date.

Dr. John Ernst, an expert in the field of internal medicine and cardiology, after reviewing the coroner’s report, autopsy protocol, laboratory report and death certificate of Mr. Rayfield, as well as his medical report from Civil Service and a chart from the Veterans Administration Hospital, testified the decedent had severe coronary artery disease, had had a previous myocardial infarction, and had an acute myocardial infarction on the night of his death, which he stated occurs, in most cases, as here, when the man’s blood supply does not meet his demand for that particular time.

Dr. Ernst stated that because the patient complained of chest pain several hours prior to his death it would suggest something had occurred probably earlier in the day because of this supply and demand problem. Regarding Rayfield’s work activity, the physician stated that the history indicated to him the decedent had had a very heavy day, but he noted he did not know how he tolerated previously heavy days. He also said the work of unscrewing caps to parking meters and activities of cleaning and lifting would be of enormous stress to a man who had serious coronary artery disease.

Dr. Ernst testified that recent heavy physical jobs aggravated the decedent’s coronary artery disease and also said regarding the fact that he had chest pains on arriving home, he could not say definitely whether at that point an occlusion process had begun; however, he said it “probably” began at that time because of the autopsy report demonstrating he had occlusion hemorrhagic plaque and the beginning of damage at an “indeterminate” time. He also said the thrombus occurring in Rayfield’s case can form whether a person is working or not if the occlusion is severe enough; however, Dr. Ernst further testified he could say with medical certainty the arterio sclerosis was aggravated by the work the decedent did to the extent that the work was the cause.

Dr. R. W. Dhurandhar, Chief of Cardiology and Medicine at Touro Infirmary, whose specialty is cardio vascular disease, testified that in the present case he could not estimate when the decedent’s thrombosis formed. When asked if the activity the decedent had performed on the day of his death was the cause of what happened to him, he said this was a difficult question to answer “simply because the man was doing it every day.” He added a man who has severe coronary artery disease is always at the risk of sudden death.

Dr. Dhurandhar said sudden death through ventricular fibrillation can be caused by severe coronary artery disease, as in the decedent’s case and that hemorrhagic plaque began to grow, probably, due to plaque formation after sclerosis. He explained that this plaque, which had been in his vessels for some time, began to hemorrhage due to tiny vessels rupturing but this would not necessarily occur at work but could happen any time.

Dr. Dhurandhar also said he could not say whether the hemorrhagic plaque and thrombus preceded death by a very short time, but for the hemorrhage to become significant it must have happened just before or around the time Rayfield died. He added that the vessel was already severely narrowed and that it is possible some bleeding additionally produced further narrowing and blocked it off. He added, however, if it had blocked off while working he would have died, probably, immediately at work.

Dr. Dhurandhar testified there was nothing in the documents he reviewed to lead him to believe the decedent’s work precipitated this occlusion, and he added there is no strict correlation between physical exertion and heart attacks as there is physical exertion and angina pectoris. In regard to the correlation between Rayfield’s work and his death, the physician stated that if in his job, on the day he died, he had had more unusual exertion or if he had been under severe mental stress and there were causes for him to get highly upset, then he had aggravation of his condition due to work. He also said, however, if he was doing the same thing he was doing for five years then it was not possible to say his particular work did it. Furthermore, a slide examination showed no myocardial infarction or necrosis of heart tissue which would have been the evidence that indicated an attack occurred prior to the ventricular fibrillation.

The jurisprudence surrounding the issues in a case of this type was analyzed very well in Campbell v. Kansas City Southern Railroad Co., 297 So.2d 798 (La.App. 4th Cir. 1974), at 799-800:

“Plaintiffs must prove the existence of the causal connection between death resulting from heart failure and decedent’s employment activities. Our courts have frequently reviewed claims' under the Workmen’s Compensation Act for death benefits resulting from heart attacks. The law relative thereto is contained in Prater v. Liberty Mutual Insurance Company, 182 So.2d 805, 807 (La.App. 3rd Cir. 1966), where it is stated:
‘Our jurisprudence is now established that, in cases of this type, plaintiff bears the burden of proving by a preponderance of the evidence, as in any other civil ease, that there is a causal connection between the employment activity and death or disability resulting from a heart condition. Nickelberry v. Ritchie Grocer Co., 196 La. 1011, 200 So. 330; Fontenot v. Camden Fire Insurance Association, 124 So.2d 640 (La.App. 3rd Cir. 1960); Seals v. Potlatch Forests, Inc., 151 So.2d 587 (La. App. 3rd Cir. 1963). In the recent case of Guillory v. New Amsterdam Casualty Co., 244 La. 225, 152 So.2d 1 (1963) our Supreme Court, in discussing what is meant by preponderance of the evidence in compensation cases, states that “speculation, conjecture, near possibility, and even unsupported probabilities, are not sufficient * * In Bernard v. Louisiana Wildlife and Fisheries Commission, 152 So.2d 114 (La.App. 3rd Cir. 1963) this court said such proof must be by a “reasonable probability”, and that mere possibility is not sufficient. * * *’
In Holman v. M. L. Bath Company, Ltd., 226 So.2d 588, 589 (La.App. 2nd Cir. 1969) writ refused 254 La. 931, 228 So.2d 485 (1969), the court commented on the principal difficulty encountered in cases of this type:
‘Our jurisprudence is now settled that an employee may recover under the Workmen’s Compensation Act for disability resulting from a heart attack. The difficult problem in heart cases is defining the meaning of “accident” as used in the statute and whether the accident [exertion] caused the disability. If the employee is able to show that he performed duties requiring the use of physical effort which precipitated the heart attack [accident] our courts have decided the requirements of the statute have been satisfied. See Nickelberry v. Ritchie Grocer Co. (1941), 196 La. 1011, 200 So. 330; Prater v. Liberty Mutual Insurance Co. (La.App. 3 Cir. 1966), 182 So.2d 805; and Bertrand v. Coal Operators Casualty Co., 253 La. 1115, 221 So.2d 816 (1968).’
This doctrine was recently reaffirmed in Fife v. Kaiser Aluminum & Chemical Corporation, 263 So.2d 351 (La.App. 1 Cir. 1972) writ refused, 1972.
“In Danziger v. Employers Mutual Liability Insurance Company of Wisconsin, 245 La. 33, 156 So.2d 468, 473 (1963) the court stated:
‘However, certain limitations or ground rules, so to speak, have been applied by the courts in determining whether there has been an “accident” within the meaning and intendment of the law. First and foremost, it may be said that the vascular disease cases have been limited to employees who perform manual labor and recovery in such instances will not be permitted unless it is shown that the diseased organ gives way or its function is impaired while the laborer is discharging his usual and customarily laborious work.’ (emphasis supplied)”

Likewise the court also stated in Prim v. City of Shreveport, 297 So.2d 421, 422 (La. 1974):

“Although procedural rules are construed liberally in favor of workmen’s compensation claimants, the burden of proof, by a preponderance of the evidence, is not relaxed. Thus, the testimony as a whole must show that more probably than not an employment accident occurred and that it had a causal relation to the disability. If the testimony leaves the probabilities equally balanced, the plaintiff has failed to carry the burden of persuasion. Likewise, the plaintiff’s case must fail if the evidence shows only a possibility of a causative accident or leaves it to speculation or conjecture. Jordan v. Travelers, 257 La. 995, 245 So.2d 151 (1971); Herbert v. Your Food Processing & Warehouse, Inc., 248 La. 197, 177 So.2d 286 (1965); Hogan v. T. J. Moss Tie Co., 210 La. 362, 27 So.2d 131 (1946); White v. E. A. Caldwell Contractors, Inc., La.App., 276 So.2d 762 (1973); Richard v. Guillot, La.App., 271 So.2d 719 (1972); Nellon v. Harkins, La.App., 269 So.2d 542 (1972).”

A review of the record in its entirety fails to establish that the plaintiff carried the requisite burden in establishing an employment accident occurred and that it had a causal relationship to Rayfield’s death. The decedent’s death occurred a number of hours after he left his job with the City, he did not complain of chest pains at all to his co-employee during the working hours of that afternoon, and the work he did that afternoon was not established as having been any more heavy or stressful than that which he performed on any other workday for the past several years he worked with the City. This court cannot conclude that the decision of the trial court judge (that the death of the decedent was not the result of an “accident” as defined by LSA-R.S. 23:1021(1), was in error.

Accordingly, the district court decision dismissing the plaintiff’s suit is affirmed.

AFFIRMED.

STOULIG, Judge pro tern.,

dissenting.

I respectfully dissent.

It is undisputed that Sidney Rayfield, Jr. died September 1, 1976 of heart disease. The autopsy protocol states the cause of death was coronary occlusion and acute thrombosis of anterial descending coronary artery. Death was at approximately 11:30 p. m. That day Rayfield, a City employee, worked until 4:30 p. m. outdoors, assisting in lifting meter heads to remove coins. It was hot and humid.

At 5:30 p. m. he complained of chest pains, ate dinner, and went to a second job where he worked as a janitor. He returned home at 10:45 p. m. complaining of chest pains and left for the hospital 15 minutes later. He died enroute.

Two cardiologists testified. Both agreed the thrombosis cut off blood supply and could not say when it formed. Defendant’s doctor said the immediate cause of death was ventricular fibrillation.

Dr. John Ernst, III said the work performed by plaintiff aggravated his condition and contributed to his death. It was his opinion that someone in plaintiff’s condition should not have been performing strenuous work. Dr. W. R. Dhurandhar on three separate occasions said he could not say whether work with the City did or did not aggravate his condition to the point where it precipitated the attack.

“The chest pain itself is satisfactory enough to say that the supply has not met the demand. At that point whether he had an occlusion process at that time I can’t definitely say. I can say it probably began at that time ... . ”

A heart attack to be compensable as an accident within the meaning of R.S. 23:1021 need not occur on the job site or be precipitated by strenuous physical activity. Ferguson v. H. D. E., Inc., 270 So.2d 867 (La. 1972); Bertrand v. Coal Operators Casualty Company, 253 La. 1115, 221 So.2d 816 (1969); Sherman v. Southern Scrap Material Company, Ltd., 284 So.2d 71 (La.App. 4th Cir. 1973); writs refused.

The difficulty of proving causality in heart attack compensation cases has been recognized in Roussel v. Colonial Sugars Company, 318 So.2d 37 (La.1975). A preexisting heart condition can produce disability at any time; therefore, the causation is not as susceptible of proof as traumatic physical injury.

When the workman proves his job duties aggravated a preexisting condition he has suffered a compensable accident. Dr. Ernst said decedent should not have been doing work as strenuous as his job required. He suffered pains on returning from work outdoors on a hot, humid day. He died 6 hours later.

In Parks v. Insurance Co. of N. America, 340 So.2d 276 (La.1976) the court recognized that health problems traditionally termed diseases — bronchitis, heart disease, stroke or heat stroke — are compensable accidents if the workman’s job duties aggravates the preexisting condition. In my opinion the medical evidence did meet the standard of proof required to establish that the decedent suffered a job-related aggravation of his preexisting heart condition.

      . Danziger was overruled by Ferguson v. HDE, Inc., 270 So.2d 867 (La.1972), only to the extent that Danziger held there can be no accident and no injury when the disability results solely from extraordinary mental or emotional causes.

      . Dr. Ernst testified:
      “The autopsy report describes severe coronary artery disease. A person with severe coronary artery disease, unless supplemented by satisfactory medical treatment and/or some coronary surgical procedure, should not be performing heavy physical duties of any kind because he is subjecting his heart muscles to the law of supply and demand, again, in that his supply is not going to reach his demand and he is going to have angina, myocardia, necrosis the cardiac arithmic disturbances from a lack of oxygenization.


author: BARRY, Judge.

text:
    Ronald VEGA, Individually and as Administrator of the Estate of his Minor Child, Desi Vega, and Desi Vega v. ST. BERNARD WATER DISTRICT NO. 1, St. Bernard Parish Police Jury, Zurich-American Insurance Companies, and Continental Insurance Company.
    No. 11850.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.

      Richard A. Tonry, Chalmette, for plaintiff-appellant.
    Brian, Simon, Peragine, Smith & Redf-eam, New Orleans, Daniel J. Caruso, New Orleans, for defendant-appellant.
    Before REDMANN, BARRY and KLIE-BERT, JJ.
   BARRY, Judge.

Plaintiffs minor son was awarded damages for personal injuries and defendant now appeals on liability and quantum.

The record shows that plaintiff’s 13 year-old son was riding his “dirt bike” on the shoulder of Judge Perez Drive in Chal-mette. “Breakaway” fire plugs are located along the shoulder, one of which had previously been demolished causing its pipe to be exposed approximately six inches above the ground.

The youngster testified that while proceeding along the shoulder he observed a tomato can in his path which he avoided and then felt his left foot strike something. He continued a short distance, turned and saw that his foot had struck the exposed base of the fire hydrant. He returned home and his father took him to Chalmette General Hospital where an examination revealed a broken toe which was sutured and set.

The next day the child was taken to Dr. Truman Kerr who determined that the distal portion of the left great toe was cold to the touch, but delayed a decision on amputation until he could determine the extent of the damage and how far gangrene had spread. Approximately five weeks later the child was admitted to Baptist Hospital for amputation of the devitalized and fractured bone and construction of tissue to cover the end of the toe. Eight days of hospitalization ensued after which Dr. Kerr administered treatment as an out-patient until discharged two and one-half months later.

An employee of the St. Bernard Water District candidly testified that prior to the accident he was notified by telephone that the fire hydrant had been knocked down. The employee stated he requested that a crew be dispatched to replace the hydrant, but since no hydrants were in stock, he issued an order to place a barricade over the exposed base. He further testified that he never saw the barricade after he ordered its erection and that there is no follow-up to determine if the barricade was erected nor is there any inspection on a continuing basis if it is erected. The Water District’s employee admitted that barricades were often unlawfully removed by contractors and others. In any event, whether the barricade was, in fact, placed over the exposed pipe or removed after being placed there, it is un-controverted that the base of the hydrant was exposed at the time of the accident. Finally, the employee testified that he remembered receiving telephone calls that the fire hydrant had been knocked down after he ordered the barricade to be erected, but in spite of this notice he failed to determine if a barricade was in place or if another should be put up.

Defendant urges that the Water District acted reasonably to cover the exposed pipe with the alleged installation of a barricade. However, defendant’s only witness could not verify that the barricade which he ordered was actually erected, and if it was, the record is void of any explanation why the base was exposed when struck by the child. Clearly the defendant had a duty to maintain its fire hydrants to protect the public. We conclude that the exposed base of the fire hydrant created a defect or condition which was patently dangerous, or in the nature of a trap, and where a public body (such as this defendant) has actual or constructive notice of the defect, there was a continuing duty to warn and protect the public of the existence of the defect. Garrett v. Sewerage & Water Board of New Orleans, 235 So.2d 164 (La.App. 4th Cir. 1970). Defendants were obligated and had a continuing duty to maintain the barricade until the danger was alleviated. Collins v. City of New Orleans, 3 La.App. 299 (1915); Jacobs v. Jacobs, 141 La. 272, 74 So. 992 (1917).

Defendant also urges that the shoulder of the roadway cannot be used to operate a motor vehicle and to do so constitutes assumption of risk and/or contributory negligence. This roadway is a major thoroughfare in Chalmette and the exhibits in evidence show the shoulder is concrete, approximately twelve feet wide, and extends from the roadway to the adjacent parking lot of Schwegmann’s. The area is traversed by pedestrians, often used for non-emergency situations including parking of vehicles, and is used by vendors of seafood and vegetables. A person using the shoulder has a right to assume that the shoulder is safe and does not contain a dangerous instrumentality or defect such as a protruding and exposed fire hydrant base. See Jackson v. Parish of East Baton Rouge, 331 So.2d 64 (La.App. 1st Cir. 1976); Bustamente v. City of New Orleans, 175 So.2d 404 (La.App. 4th Cir. 1965). Defendant’s actions constitute negligence and was the proximate cause of the accident.

Finally, defendant appeals the trial court’s quantum award. Medical expenses totaled $1,780.29 and $30,000 was granted for pain and residual damage.

The record reflects that this youngster could not sleep during the first two weeks following the accident. Initially the toe was sutured and the physician examined the foot on alternate days for the first week, then every week for four additional weeks. The pain persisted and finally eased somewhat during the fourth and fifth weeks. During the fifth week, the child was admitted to the hospital for amputation and eight days of convalescence.

The child’s father testified that his son was in shock after the accident and described in detail the amount of pain his son suffered. There is also evidence that the youngster was an active participant in sports and possessed above average athletic ability which could be impaired because of the residual condition.

The surgeon testified that the child has a 75% disability of the great toe which affects balance, reduces walking stamina and the ability to push off. Also, the surgery created disfigurement and the stub was extra sensitive.

We are ever mindful of the discretion afforded to the trial judge in awarding damages. Examination of this plaintiff’s status and his injury compels us to conclude that the District Court’s award is appropriate.

Accordingly, the judgment of the District Court is affirmed and the defendant is to pay all costs of this appeal.

AFFIRMED.


text:
    Iris Burley, wife of/and Irving BURLEY v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 11877.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.
    J. Stuart Douglass, New Orleans, for plaintiff-appellee.
    Floyd F. Greene, New Orleans Public Service, Inc., New Orleans, for defendant-appellant.
    Before REDMANN, BARRY and KLIE-BERT, JJ.
   BARRY, Judge.

Plaintiff sued New Orleans Public Service, Inc. (NOPSI) for injuries she allegedly received while a passenger on defendant’s bus. The trial judge awarded $3,500.00 for her injuries and $560.37 for medical expenses. Defendant appeals only on the issue of negligence.

The record shows that plaintiff boarded the bus at Carondelet and Canal Streets with several other passengers. After getting aboard she realized that she didn’t have exact change, placed her package(s) on a seat, paid her fare and proceeded toward the rear of the bus carrying the package(s). Plaintiff testified that after reaching approximately the fourth row of seats the bus started forward fast and simultaneously made a right turn on Canal Street, causing her to lose her balance and fall sustaining the injuries sued upon.

Defendant’s driver confirmed that plaintiff boarded the bus with a big package; however, he contradicted plaintiff by stating that his takeoff was slow and smooth and that the bus’ turn was normal. The driver’s testimony conflicted as to whether plaintiff was still in the front of the bus when he moved forward or if she was walking back during the turn, but he confirmed that the plaintiff did report her fall a few blocks later.

A passenger seated in the fourth row testified that she saw plaintiff board the bus and while the bus was in motion plaintiff stumbled on her feet and fell over a seat. She verified that plaintiff was walking toward the rear when the bus turned and plaintiff stumbled. The passenger felt there was nothing unusual about the manner in which the bus started forward.

Another passenger, seated in the back of the bus, testified there was nothing unusual about the way the bus moved forward; further, that he saw plaintiff stumble and fall against a seat which she grabbed and sat down. However, this passenger then changed his testimony and said plaintiff didn’t fall.

Another passenger called by the defendant testified that he didn’t see what happened, didn’t observe plaintiff boarding the bus, and that there was nothing unusual about the motion of the bus.

It was recently held that a fare-paying passenger who proves an injury occurred on a public conveyance shifts the burden to the public operator to then prove that it was without the slightest degree of negligence. Davis, et al. v. Owen, et al., 368 So.2d 1052 (La.1979). However, a public carrier is not liable for the results of ordinary jolts or jerks incident to the starting or stopping of its conveyance in a usual and customary manner. Also, a passenger in a public conveyance must anticipate its possible movement before reaching a seat or while standing, and the passenger must máintain an equilibrium during usual and necessary movement. Gaines v. Baton Rouge Bus Company, Inc., 175 So.2d 719 (La.App. 1st Cir. 1965), and cases cited therein. Briggs v. United States Fidelity & Guaranty Company, 224 So.2d 124 (La.App. 3rd Cir. 1969). However, Briggs held that a bus driver is negligent in starting a forward movement knowing of a passenger’s physical incapacity due to age, obesity, and infirmity, before ascertaining if the passenger was seated.

We are not favored with reasons for judgment. However, it is apparent the trial judge was convinced that plaintiff was either standing or moving toward the rear of the bus carrying a package(s) when the vehicle moved forward and turned right thus causing plaintiff’s injuries. We feel defendant’s driver did not exercise the highest degree of care under these circumstances. This is purely a factual determination based upon the credibility of witnesses and we do not find error that plaintiff established a prima facie case of negligence which burden defendant failed to overcome.

Accordingly, the judgment of the District Court is affirmed with defendant/appellant to pay all costs of this appeal.

AFFIRMED.

       There is a conflict as to whether plaintiff was carrying a package in each arm or one large package.


text:
    David WILLIAMS v. CHIEF ADMINISTRATIVE OFFICER.
    No. 11915.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.
    Marco A. Rosamano, New Orleans, for plaintiff-appellant.

      Michael A. Starks, Asst. City Atty., Dept, of Law, New Orleans, for defendant-appel-lee.
    Before REDMANN, BARRY and KLIE-BERT, JJ.
   BARRY, Judge.

Plaintiff, a probationary civil service employee, was terminated and now appeals a decision of the New Orleans Civil Service Commission which dismissed his request for review.

Plaintiff was working as a messenger in the New Orleans Chief Administrative Office when dismissed by letter which detailed numerous working infractions, including punctuality, attendance, failure to follow procedures, attitude, and overall work performance. Plaintiff responded to his dismissal with a letter stating his disagreement and asked that his case be reviewed by appeal. The city filed an exception of no right or cause of action on the grounds that plaintiff could not appeal his dismissal because of his status as a probationary employee.

City Civil Service Rule II, Sec. 4, 4.1(a) provides for appeals by a regular employee from suspension, fine, dismissal, and reduction in pay or promotion. The only mention of appellant rights in favor of a probationary employee is Rule II, Sec. 4, 4.1(b) which provides in pertinent part:

Persons who shall have applied for or shall have been examined for the classified service and shall not have established their status as permanent classified employees and allege that they have been discriminated against in review of their applications, admission to the examination, the scoring of examination, the establishment of eligible list and certification, [sic] shall have the right to appeal to the Commission, to test the reasonableness of such action.

There is no other provision for appeal by a probationary employee other than for alleged discrimination as mentioned above.

Plaintiff urges that his letter seeking an appeal was vague and could be amended to overcome the City’s exception of no cause of action. No amendment under these facts could establish a basis for plaintiff to appeal his termination and the exception of no cause of action was properly maintained.

Accordingly, the decision of the City of New Orleans Civil Service Commission dismissing plaintiff’s appeal is affirmed. Costs of this appeal are to be paid by plaintiff/appellant.

AFFIRMED.


text:
    Al ABADIE v. Irving BOUDREAUX et al.
    No. 12174.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.

      Joseph G. Kopfler, Houma, for plaintiff-appellant.
    E. Ross Buckley, Jr., Buckley & Ward, New Orleans, for defendant-appellee Gordon Reynolds.
    Before REDMANN, BARRY and KLIE-BERT, JJ.
   BARRY, Judge.

Plaintiff filed a workmen’s compensation suit which was dismissed on an exception of no right of action as to one co-defendant. We are confronted with a factual situation which is basically undisputed.

Gordon Reynolds was a full-time high school teacher and athletic trainer who undertook construction of a home for his personal use and acted as his own contractor. During construction Reynolds hired Irving Boudreaux to frame the house, and Bou-dreaux hired plaintiff to install the roof. Plaintiff was to be paid a set amount agreed upon between plaintiff and Bou-dreaux. Plaintiff was injured on the job and sued Boudreaux and Reynolds for compensation benefits. Reynolds filed exceptions of no right or cause of action and a motion for summary judgment. The District Court maintained the exception of no right of action, dismissed plaintiff’s lawsuit as to Reynolds, from which plaintiff now appeals.

Defendant’s exceptions of no right or cause of action was founded on plaintiff not being his employee, but even if held contra, that the work which plaintiff performed was not within the normal trade, business, or occupation of Reynolds and therefore plaintiff was excluded from compensation coverage.

Plaintiff’s effort to establish his status as either an employee or independent contractor as to Reynolds is immaterial without first determining whether the construction of the residence was part of Reynolds’ trade, business, or occupation.

The evidence is clear that Reynolds had been a full-time school teacher for a number of years. He purchased a lot and approximately three years later decided to build a home for his own use which he personally contracted for in order to save money. It is uncontroverted that Reynolds had never previously been involved in any type of construction enterprise and his effort to “contract out” to build his home was his initial experience with the building trades industry.

A person rendering service for another is presumed to be an employee. LSA-R.S. 23:1044. An independent contractor doing manual labor would be covered under the Compensation Act unless exempted. LSA-R.S. 23:1021(5). Services rendered by an employee or independent contractor must be “in the course of or part of the employer’s trade, business, or occupation”. LSA-R.S. 23:1035.

If a person not in the construction business undertakes to act as his own general contractor, it does not necessarily follow as matter of law that the person is, or is not, in the construction business. This is a question of fact to be determined under the circumstances of each ease. See Doss v. American Ventures, Inc., 261 La. 290, 261 So.2d 615 (1972). Plaintiff relies heavily on Doss wherein our Supreme Court determined that the employer corporation was engaged in construction as a business at the time when that plaintiff was injured. In Doss, the corporate employer was in the business of collecting rents on a building which it owned, and after the building had been destroyed, the corporation undertook re-construction in order to continue collecting rents and charged its insurer a percentage above actual expenses as a fee for contracting the work. Those facts are clearly distinguishable from this case.

McMorris v. Home Indemnity Insurance Company, 236 La. 292, 107 So.2d 645 (1958), is close factually to the instant case and held that a full-time federal employee, acting as his own contractor for construction of his home, was not engaged in his regular “trade, business, or occupation” so as to entitle a carpenter injured on the project to recover compensation benefits. Therefore, the work must be incident to or in the course of the employer’s customary or regular trade, business, or occupation.

The anchor for this jurisprudence is Shipp v. Bordelon, 152 La. 795, 94 So. 399 (La. 1922). There the worker was injured while repairing a house owned by a physician. In concluding that the repair work was not incidental to or in the course of the physician’s trade, business, or occupation, and denying compensation, the Supreme Court said:

“The Employer’s Liability Law of this State does not purport to make all employers of labor liable for compensation, but plainly and distinctly limits its operation to certain specified trades, businesses, and occupations, which in their very nature are hazardous, as well as others not mentioned, which may, under certain conditions, be found to be hazardous, and to cases where the parties by mutual consent agree to come under its provisions.
*$*$$$
“Hence we see that it is not enough that the employee shall be performing work of the character falling within the designated trades, businesses, or occupations, but it must be done “in the course of the employer’s trade,” etc., in certain trades, businesses, etc. In other words, the work must be of that character, and the employer must be engaged in that line of work as a trade, business, or occupation, in order that the act may apply. * * *
* sis # * • * *
“We agree with counsel that it is not required, under our law, that the business of the employer must be exclusive, for one may have a dozen trades, businesses, or occupations. But, to become liable for compensation, he must be actually so engaged, as a trade, etc., and it is not enough that the work done should be hazardous if it be not also incident to or in the course of the trade, business, or occupation of the employer which is within itself hazardous under the statute. * *”

“It is well settled that it is the nature of the employer’s business and not the particular work done by the employee which is the determinative factor in suits for compensation.” Doss v. American Ventures, Inc., supra, at p. 618 citing Shipp v. Bordelon, supra. See Lawson’s Workmen’s Compensation Law § 50.21.

Even if Reynolds had been the employer, the nature of his job as a school teacher is determinative that roofing work is not within his occupation. Legislative mandate is clear and our jurisprudence dictates that this plaintiff’s claim for compensation benefits is excluded as to the defendant Reynolds.

The District Court maintained co-defendant Reynolds exception of no right of action; however, plaintiff’s petition fails to state a cause of action and the lower court judgment is therefore amended to dismiss plaintiff’s petition based upon co-defendant Reynolds’ exception of no cause of action.

AMENDED AND AFFIRMED.


text:
    Anna DEGEL v. John G. DEFFES, Sr.
    No. 12215.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.
    Clarence 0.- Dupuy, Jr. and James G. Dal-feres, New Orleans, for plaintiff-appellee.
    Robert 0. Homes, Jr., Metairie, for defendant-appellant.
    Before REDMANN, BARRY and KLIE-BERT, JJ.
   BARRY, Judge.

The record discloses that these parties voluntarily separated and were divorced in 1973. In 1977 plaintiff instituted this community partition and defendant responded with a reconventional demand. Plaintiff (defendant in reconvention) filed exceptions to various parts of the reconventional demand. After the trial judge maintained the exception of no cause of action, plaintiff in reconvention filed a motion for a new trial and subsequently writs to this court, all of which were denied.

Our concern is the trial judge maintaining an exception of no cause of action which addresses itself to the sufficiency in law of the petition and the exhibits attached thereto. No cause of action tests the legal sufficiency of the petition and all well-pleaded allegations of fact are accepted as true. If the allegations set forth a cause of action as to any part of the demand, the exception must be overruled. Succession of Andre Vidrine, 377 So.2d 564 (La.App. 3rd Cir. 1979).

The effect of sustaining the exception of no cause of action, or any peremptory exception, is to dismiss the action, not a part of the action. LSA-C.C.P. Art. 934.

Our Code of Civil Procedure does not provide for a partial no cause of action where another part of the demand states a cause of action. See Givens v. Richland-Morris Agency, Inc., 369 So.2d 1184, 1185 (La.App. 2nd Cir. 1979).

As noted in Williams v. City of Shreveport, 241 So.2d 598 (La.App. 2nd Cir. 1970), “the rule requires no citation of authority to the effect that when a petition discloses a cause of action on any phase of the controversy an exception to that effect should not be sustained”.

Accordingly, the judgment of the District Court is reversed and set aside; it is now ordered, adjudged and decreed that defendant in reconvention’s exception of no cause of action be, and the same is now overruled and this matter remanded to the District Court for further proceedings in accordance with law. All costs incurred on appeal of this matter are to be paid by the plaintiff/defendant in reconvention.

REVERSED AND REMANDED.