author: CALOGERO, Justice. DIXON, Chief Justice

text:
    John B. MASSENGILL v. AETNA LIFE INSURANCE COMPANY.
    No. 81-C-0991.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
    Rehearing Denied Nov. 16, 1981.

      James J. Morrison, Jr., New Orleans, for plaintiff-applicant.
    Lawrence J. Duplass, of Johnston & Du-plass, New Orleans, for defendant-respondent.
   CALOGERO, Justice.

Plaintiff John B. Massengill, a former employee of Owens-Illinois Glass Company, retired as totally disabled because of a back condition in the year 1967 at the age of 56. For nine years, he received monthly disability benefits under a group policy issued by Aetna Life Insurance Company to Owens-Illinois Glass Company for its employees. For that inclusive period, the policy provided for payments whether the disability was caused by injury or by disease. Under the policy, however, the covered employee is no longer entitled to such payments after age 65 if the disability was caused by disease rather than by injury.

In 1976 when Massengill became 65 years old, Aetna discontinued the payments, reasoning that his disability had not been caused by injury. Rather, the insurer claimed his disability was caused by disease. Plaintiff Massengill sued for a judgment declaring that his disability had been caused by injury and that he thus continued to be entitled to benefits. In a supplemental petition, plaintiff sought penalties and attorney’s fees for Aetna’s termination of his benefits at age 65. The trial judge, with excellent written reasons, declared that the disability had been caused by injury, awarded Massengill $11,566.52 for benefits due from December, 1976 through date of final judgment, but denied plaintiff penalties and attorney’s fees. Both parties appealed. Aetna disputed the trial judge’s finding that Massengill’s disability was caused by injury, not by disease. Massengill questioned the denial of penalties and attorney’s fees and the trial judge’s computation of benefits due.

The Court of Appeal (1) affirmed the trial court’s determination that the disability was caused by injury; (2) held additionally that the disability “eommence[d] within the ninety day period immediately following the accident...” (Article II, § 1(c)) to come within the policy’s definition of injury; (3) affirmed the trial court’s denial of penalties and attorney’s fees; and (4) amended the trial court’s lump sum figure to allow for a fixed semi-monthly figure

due plaintiff of $204.82 from December 1, 1976 through the trial court’s judgment on December 12, 1979 (a total of $14,951.86) with the semi-monthly payments to continue at $204.82 thereafter. 394 So.2d 764 (La.App. 4th Cir. 1981) Pertinent to the matter now before this Court, the Court of Appeal in effect allowed Aetna to deduct the plaintiff’s Social Security benefits that he received and would receive for old age insurance after age 65.

Both parties sought writs. Aetna complained that the lower courts erred in determining that Massengill’s disability was caused by injury, not by disease. We denied Aetna’s application and that issue is no longer before us. 400 So.2d 668 (La.1981). Plaintiff complained in his writ application (1) that the Court of Appeal erred in allowing Aetna to deduct the Social Security payments the insured received for old age insurance after age 65, (2) that the Court of Appeal erred in denying penalties and attorney’s fees. We granted plaintiff’s writ to consider these two issues. 400 So.2d 667 (La.1981). They are the only matters now before us.

COMPUTATION OF BENEFITS

As we read the policy provisions, the disabled retiree receives a determinable amount calculated monthly, payable semimonthly, subject to the following deductions: (1) a private retirement plan for employees payable to those over 65 only; (2) disability benefits payable under social security or workmen’s compensation (the latter of which is not relevant here). Accordingly, for nine years preceding age 65, there was no pension deduction but the disability payments which plaintiff received under the social security system for being disabled were deductible. That is how Mas-sengill was paid and those payments are not at issue in this suit.

Relator’s specific complaint centers on the changing character of the Social Security payments at age 65 and the Court of Appeal’s failure to see the distinction. We agree with relator’s understanding of the Federal Social Security Act. The disability insurance under the Federal Social Security Act extends only to age 65. “Every individual who . . . (B) has not attained the age of sixty-five . . . shall be entitled to a disability insurance benefit. . . . ” 42 U.S.C. § 423(a)(1). Thereafter, old age insurance benefits are due. “Every individual who . . . (3) . . . was entitled to disability insurance benefits for the month preceding the month in which he attained the age of 65 [as well as those who have simply attained the age of 62] shall be entitled to an old age insurance benefit. . . . ” (42 U.S.C. § 402(a)). Under the insurance policy, Aet-na may deduct only Social Security disability payments, so Aetna may not deduct Mas-sengill’s Social Security old age benefits, that which he has received after turning 65.

Furthermore, we agree with relator that the policy at issue allows for the determination of benefits each benefit period by deducting the “other income benefits” received “for the same semi-monthly period.” This language does not require that the benefits as originally fixed be unchanged thereafter. Rather the reverse is apparently contemplated.

The amount of semi-monthly benefit payable in accordance with this Article shall be an amount equal to the excess of the applicable amount determined from the following table over the amount, if any, of semi-monthly income payable for the same semi-monthly period by reason of other income benefits hereafter defined:

Because we have found the only Social Security benefits at issue in this case (i. e. post 65) to be fully nondeductible in computing benefits, it is unnecessary for us to consider the public policy question addressed by the Court of Appeal (See footnote 5). We do not therefore have to decide whether it is against public policy for Congressional increases in social security payments to inure to the benefit of a private insurer. However, we do note that there is jurisprudence contrary to the Court of Appeal’s resolution of this issue. See Hurd v. Bell Telephone Company, 234 F.2d 942 (7th Cir. 1956).

PENALTIES AND ATTORNEY’S FEES

La.R.S. 22:657(A) provides that

[a]ll claims arising under the terms of health and accident contracts issued in this state, . . . shall be paid not more than thirty days from the date upon which written notice and proof of claim, in the form required by the terms of the policy, are furnished to the insurer unless just and reasonable grounds, such as would put a reasonable and prudent business man on his guard, exist. . . . Failure to comply with the provisions of this Section shall subject the insurer to a penalty payable to the insured of double the amount of the health and accident benefits due under the terms of the policy or contract during the period of delay, together with attorney’s fees to be determined by the court. (Emphasis provided).

Plaintiff asserts that Aetna had no just and reasonable grounds to terminate payments at age 65 and therefore penalties and attorney’s fees are appropriate.

It is significant that the initial awarding of total disability payments did not require a determination of whether Mr. Massen-gill’s disability was caused by disease or by injury. The policy covered both until age 65. Aetna’s position that the disability was caused by disease and Aetna’s refusal to pay after age 65 is entirely consistent with their paying earlier benefits under the policy. No definitive determination of causation was required before Massengill became 65.

Though the trial court came to the conclusion that Mr. Massengill’s disability resulted from injury, there was evidence presented over which reasonable people, and in fact reasonable doctors, could disagree. Claim forms and letters on file with Aetna contained references to Mr. Massen-gill’s injuries and ailments, with no single conclusive statement as to the actual basis for his total disability retirement. The varying opinions of medical professionals over the classification of osteoarthritis and degenerative disc “disease” was present in testimony and depositions. Quoting one doctor: “Arthritis is sort of a half medical half orthopedic problem. That’s part of the trouble.” We therefore find no bad faith on the part of the insurer in determining to discontinue benefits at age 65. Cf. Sequin v. Continental Service Life and Health Insurance Co., 230 La. 533, 89 So.2d 113 (La. 1956). Penalties and attorney’s fees are denied.

The district court denied penalties and attorney’s fees and awarded a lump sum of $11,566.52 to Mr. Massengill for all benefits due from December 1976 through the date of final judgment below. The Court of Appeal affirmed the denial of penalties and attorney’s fees but amended the district court’s money judgment. The Court of Appeal awarded $204.82 semi-monthly from December 1, 1976. But this figure allowed a deduction for both the Social Security payments with respect to old age and the monthly pension Massengill receives from Owens-Illinois. Because we differ with the Court of Appeal’s calculations and because we cannot determine the specific figures or deductions used by the trial court to arrive at its lump sum award, we remand this case to the district court for calculations in accordance with this judgment.

Decree

Accordingly, the judgments of both the district court and the Court of Appeal are set aside. The case is remanded to the district court for judgment to be entered, calculated without allowing a deduction of plaintiff’s Social Security benefits and otherwise in accordance with this opinion.

DISTRICT COURT AND COURT OF APPEAL JUDGMENTS SET ASIDE; REMANDED.

DIXON, C. J., concurs in part and dissents in part with reasons.

DIXON, Chief Justice

(concurring in part and dissenting in part).

I agree with that part of the opinion holding social security payments not deductible, but respectfully dissent from the failure to award penalties and attorney’s fees.

      . The trial judge reasoned:
      . . . The record reflects that petitioner, John Massengill, has suffered four injuries to his neck and back over a period of time. The first injury occurred in 1937 when he fell from a swivel chair and was hospitalized. The next accident occurred when he fell down the steps in his house sometime in the forties. The third accident occurred in 1956 when Mr. Massengill was involved in an automobile accident. As a result of the auto accident, Mr. Massengill suffered a cracked vertebra in his spine. He was put in traction with a neck brace for approximately eight days. In 1965, Mr. Massengill while carrying his suitcase from the airport to his car suffered a fall and was hospitalized.
      Mr. Massengill was the New Orleans District salesmanager for the Owens-Illinois Glass Company. His job required that he travel quite extensively by both plane and car calling on customers and designing containers. Furthermore, his job called for stooping down to calculate measurements for customers.

        The evidence reflects that petitioner has suffered, over a period of time especially since the 1956 auto accident, with back pains that have become more and more painful. The after effects of the last two accidents were that he suffered pain if he sat too long, walked too far, or carried too much weight. Additionally, his thighs would tremble if he stood for anytime or walked for any distance.
      Dr. Prieto’s report of August 31, 1967 stated:
      The extent of the changes that have occurred in your back will give rise to permanent symptoms. The type of work which you perform calling for frequent airplane and automobile trips, walking, standing, lifting suitcases, etc. aggravates your symptoms and produces more disability.
      As a result of Dr. Prieto’s report of August 31, 1967, Mr. Massengill was retired as disabled in September of 1967. Aetna paid the disability benefits to Mr. Massengill until he reached age 65, wherein on the belief that his disability was caused by disease, they terminated the benefits.
      This Court is of the opinion that the weight of the evidence indicates that it was more probable than not that Mr. Massengill’s disability was traumatic in origin.
      Dr. Irving Redler who treated Mr. Massen-gill at the time he became disabled testified that it was his opinion that Mr. Massengill was suffering from degenerative disc disease. Furthermore, Dr. Redler was of the opinion that it was more probable than not that trauma was the origin.
      Dr. Thomas Oelsner who also treated Mr. Massengill issued a written report stating that x-rays of Mr. Massengill’s spine in the past have confirmed the diagnosis of osteoarthritis secondary to his previous injuries. Dr. Oelsner also testified in his deposition that in his opinion, the pain disabled Mr. Massengill.
      Although the evidence is not totally conclusive and there is a possibility that an arthritic condition contributed to Mr. Massengill’s disability, this Court believes that in weighing all the evidence, it is more probable than not that the principal or proximate cause of Mr. Mas-sengill’s disability was due to injury and not disease. Certainly, the evidence reflects that the accidents involving Mr. Massengill, especially the auto accident and the fall in 1965, produced severe enough injuries to have caused Mr. Massengill considerable pain .... (Footnotes omitted).

      . The trial judge did not itemize the monthly figures that he used to calculate the total amount owed by Aetna Life Insurance Company at the trial’s conclusion, nor did the judge specify which, if any, deductions he was allowing. Plaintiff claimed on appeal that there must have been a mathematical error in the trial court’s computations since the plaintiff was unable to arrive at the same total for the interim in question. In fact, plaintiff argued that even if the judge allowed Aetna the advantage of both deductions (with which plaintiff does not agree), the total amount due would be greater than the figure in the final judgment.

      . In the alternative, plaintiff argued that if this Court should allow Aetna to deduct the Social Security payments after age 65 because the amount due the group policy should be fixed at the outset of the disability retirement and unchangeable, then the non-deductible nature of the private pension at age 56 should continue even after Massengill actually began to receive the pension at age 65. We do not address this alternative argument because of our resolution favorable to the relator on his principal contention.

      . Article II § 3(B) of the group insurance policy enumerates in pertinent part:
      B. Other income benefits, referred to above [as deductible] shall include...
      (2) as to an employee age sixty-five or over only, any payment under a retirement plan covering employees of any Participant Employer, and
      (3) any periodic cash payments with respect to disability commencing after the effective date of the employee’s insurance under this policy and provided by the Federal Social Security Act or pursuant to any workmen’s compensation law.

      . The Court of Appeal was concerned about a private insurer’s benefiting financially from social security increases.
      . . . public policy cannot allow a private insurer to reduce its disability benefits in an amount equivalent to social security increases, for that would defeat the Congress in its efforts to better the disabled’s lot by granting a cost-of-living increase. Certainly it is not the Congress’s intent to provide funds out of the social security trust fund to reduce private insurers’ obligations under policies whose premiums were paid years before. We therefore also reject plaintiff’s argument that all Social Security payments after age 65 are with respect to old age and therefore would not be deductible even though similar payments before age 65 would be deductible from the insurance benefit. 394 So.2d 765, 766.

      .Article II 3(A) of the group policy provides in pertinent part:

      . Because the issue of whether Mr. Massen-gill’s disability was caused by injury or by disease was in itself litigable and because we agree with the Court of Appeal that Massen-gill’s disability began within the relevant 90 day period (394 So.2d 764, 765 (La.App. 4th Cir. 1981), we do not address the question of whether penalties and attorney’s fees might be allowed in cases where the only issue is an interpretation of the insurer’s own policy language. Martin v. American Benefit Life Insurance Company, 294 So.2d 200, 203 (Tate, J., dissenting).


source: Caselaw Access Project

author: CALOGERO, Justice. WATSON, Justice,

license: Public Domain

text:
    Walter FELDER v. GEORGIA PACIFIC CORP., Henry L. Turner, and Hartford Accident & Indemnity Co.
    No. 81-C-0977.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
    Rehearing Denied Nov. 16, 1981.

      Joseph A. Gladney, & James R. Murray, of Joseph A. Gladney and Associates, Baton Rouge, for plaintiff-applicant.
    Daniel R. Atkinson, of Owen, Richardson, Taylor, Mathews & Atkinson, Baton Rouge, for defendant-respondent.
   CALOGERO, Justice.

We are presented with the question of whether a valid and enforceable compromise agreement has been entered into, where the claimant signed a “Release and Settlement of Claim” concerning his personal injury claim against the defendants, and the defendants in turn issued and mailed a draft to the claimant for the agreed upon sum.

On February 12, 1979, plaintiff, Walter Felder, was a passenger in a truck driven by Larry W. Severio. Plaintiff contends that he was injured when his vehicle was struck by a truck driven by Henry L. Turner. Turner was an employee of and driver of a truck owned by Georgia Pacific Corporation. Georgia Pacific and Turner are insured by Hartford Accident and Indemnity Company.

An adjuster for Hartford, William B. Petty, contacted plaintiff by telephone on June 25, 1979, about the accident. At that time, Petty obtained a statement from plaintiff concerning the accident and offered to meet plaintiff at his house later that evening to discuss the possibility of settling the case. Plaintiff agreed and Petty did in fact go out to plaintiff’s house. Apparently after some discussion, Petty offered Felder $700.00 in settlement of all his claims against defendants and Felder verbally agreed. Thereupon, Petty filled out a release form which was titled “Release and Settlement of Claim”. The form provided in part:

I Walter Felder . . ., for the sole consideration of seven hundred dollars to me paid by or on behalf of Hartford Ind. Co., Georgia Pacific and Henry Turner the receipt whereof is hereby acknowledged, do hereby release, acquit and discharge said party or parties from all claims and demands, actions and causes of action . . . resulting or to result from an occurrence that took place on or about the 12 day of February, 1979.

Felder signed the release. Petty also signed the form but did so under the notation “Witnesses”.

The following day, June 26, 1979, another Hartford agent issued a draft to Felder for $700.00 and mailed it to him on that same day. Felder has never presented the draft for payment.

On January 18, 1980, Felder filed suit against Turner, Georgia Pacific and Hartford. Defendants filed a peremptory exception of res judicata on the ground that Felder had, on June 25,1979, for the agreed upon consideration of $700.00, “signed and executed a release and settlement of all claims” against the named defendants arising out of the February 12th accident.

After a hearing on the exception, the trial court maintained the exception, finding that a valid and binding settlement had been made in the case and that plaintiff’s suit was therefore barred. The Court of Appeal affirmed the lower court ruling. Felder v. Georgia Pacific Corp., et al, 393 So.2d 394 (La.App. 1st Cir. 1980).

Our decision to grant writs in this case, 399 So.2d 619, was in part prompted by plaintiff’s argument that the settlement is not enforceable because it was not signed by the defendants or their agent and, therefore, the settlement is not valid under La. C.C. art. 3071 which provides that a settlement “must be reduced into writing.”

He contends that this requirement that the agreement be reduced to writing mandates that the writing must be signed by both parties. Therefore, since the adjuster Petty signed the agreement simply as a witness and not as an agent for and on behalf of Hartford as a party to the agreement, the agreement is invalid and unenforceable because not in compliance with the Code.

Initially, plaintiff’s argument seemed persuasive. The Code requires that compromise agreements be in writing, by implication signed by both parties. This release or compromise agreement was only signed by the claimant. Thus, it appeared that defendants had created a situation where only the claimant was bound. And while defendants could reap the benefits of having the claimant bound by the agreement, they themselves were not bound because they were not signatories to the agreement. However, after more thorough consideration, we now conclude that this was not so.

It more clearly seems that from the point in time when defendants sent the draft (or acceptance of plaintiff’s written offer) to plaintiff they also became bound by the agreement, and the agreement could be enforced against them irrespective of whether the draft was negotiable, and irrespective of whether they retained the right under the law (La.R.S. 10:3-101 et seq., entitled, Commercial Laws-Commercial Paper), with or without cause, to instruct the bank not to pay the draft when presented. We reach this conclusion because the release, signed by plaintiff, and defendant’s $700.00 draft identified with the release, together constitute a compromise agreement in writing and signed by both parties.

Civil Code article 3071, relied on by plaintiff, provides:

A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing.
This contract must be reduced into writing.

While the statute itself does not provide for the consequences of failure to reduce a compromise agreement to writing, this Court has previously held that a compromise which is not reduced to writing is unenforceable. Bourgeois v. Franklin, 389 So.2d 358 (La. 1980); Jasmin v. Gafney, Inc., 357 So.2d 539 (La. 1978). Furthermore, we agree with plaintiff that the requirement that the agreement be reduced to writing necessarily implies that the agreement be evidenced by documentation signed by both parties. Singleton v. Bunge Corp., 364 So.2d 1321 (La.App. 4th Cir. 1978).

As was stated in Bourgeois, supra, “La. C.C. art. 3071 is placed in the code to insure proper proof of extra-judicial agreements. Inasmuch as there is no judgment on the merits outlining the obligations each party has to the other when a case is settled by the parties, the law has seen fit to require the compromise agreement, which sets out those obligations, to be reduced to writing to serve as proof of the agreement and the acquiescence therein.” (Emphasis provided.) Obviously, to serve as written proof of the agreement and obligations of both parties, and their acquiescence therein, the written agreement must be signed by both parties, obligating both to do what they have agreed on.

However, the requirement that the agreement be in writing and signed by both parties does not necessarily mean that the agreement must be contained in one document. It would suffice that there be a written offer signed by the offerer and a written acceptance signed by the acceptor, even if the offer and the acceptance are contained in separate writings. In other words, where two instruments, when read together, outline the obligations each party has to the other and evidence each party’s acquiescence in the agreement, a written compromise agreement, as contemplated by La.C.C. art. 3071, has been perfected.

In the present case, Mr. Petty, Hartford’s agent, went to Mr. Felder’s home, where the parties agreed on the terms of the compromise agreement. The terms of the agreement were put into writing and, that writing was signed by Mr. Felder. Mr. Petty signed the instrument as a witness and not as a party to it on defendants’ behalf, or so it clearly appears from the writing. Therefore, it cannot be said that this release and settlement of claims was signed by both parties to it.

However, since the instrument is signed by Mr. Felder and contains the terms of the compromise, it does suffice as a written offer by Mr. Felder to settle all his claims against defendants for the sum of $700.00. In response to this offer, a Hartford agent with authority to act for all of the defendants, wrote out, signed and mailed a draft for $700.00 to Mr. Felder. On the face of the draft, there is a notation that the draft was being issued for “settlement in full all claims” to Walter Felder for a loss that occurred on February 12, 1979. We find that this written and signed draft suffices as a written acceptance of plaintiff’s written offer. When read together the two instruments constitute a written compromise agreement outlining the obligations of each party and evidencing the acquiescence therein by both parties, and is, therefore, an enforceable compromise agreement under La.C.C. art. 3071.

Plaintiff makes the argument that the draft is not negotiable, and therefore defendants retained the right to refuse payment of the draft when it was presented at the bank. Plaintiff bases this argument on the fact that the draft contains the notation “Payable at the Connecticut Bank and Trust Co., Hartford, Ct.”

Even if we assume for present purposes that the draft is not negotiable, the instrument contains the name of the claimant, the notation that there is a settlement in full of all claims for a loss that occurred on February 12, 1979, and the agreed upon sum of $700.00. As such, notwithstanding the fact that the instrument may not be negotiable, it nevertheless suffices as a written acceptance of plaintiff’s written settlement offer, effecting a valid written compromise agreement between the parties under La.C.C. art. 3071.

Plaintiff further contends that because he did not present the draft for payment he has somehow nullified any effects it might have had. We disagree.

Had plaintiff withdrawn his offer to settle the case prior to the mailing of the draft, then certainly the later mailing of the draft could not create a binding agreement between the parties. In that case the draft would represent nothing more than a written offer by defendants. Senegal v. Delahoussaye, 311 So.2d 58 (La.App. 3rd Cir. 1975). But plaintiff made no attempt to withdraw his offer to compromise the claim prior to his receipt of the draft.

Finally, plaintiff contends that the written compromise agreement that he signed did not evidence the entire agreement between the parties. He alleges more particularly that other promises were made to him concerning payment of his medical bills.

This contention is not supported by the record. Petty, at the hearing on the res judicata exception, did state that he told Felder that he had received a subrogation notice from Zurich Insurance Company, the plaintiff’s compensation insurer, and that Hartford would pay the compensation insurer for the funds it spent on Felder’s medical bills. However, the employer’s compensation insurer’s claim against the tortfeasor that Petty said he intended to pay, is separate from the employee’s claim against the tortfeasor, at least where the claim between the tortfeasor and the employee is settled, as was done in this case. The settlement or prospective settlement of the employee’s claim against the tortfeasor has no direct bearing or effect upon the compensation insurer’s claim against the tortfeasor. The plaintiff-employee will not be liable to the compensation insurer from the funds he recovers by way of settlement with the tortfeasor. See La.R.S. 23:1103; and Lalande v. Index Geophysical Survey Corp., 336 So.2d 1054 (La.App. 3rd Cir. 1976). Therefore, plaintiff’s argument, that the fact that Petty mentioned Hartford’s intention to pay the claim by Zurich indicates that the release agreement does not evidence the full agreement between the parties, is without merit.

Decree

For the foregoing reasons we hold that a valid and enforceable compromise agreement was entered into between the parties, and therefore defendants exception of res judicata was properly maintained.

AFFIRMED.

DIXON, C. J., dissents (the draft was not an unqualified acceptance of the offer.)

WATSON, J., dissents.

WATSON, Justice,

dissenting.

Plaintiff, Walter Felder, a seventh grade graduate, was induced to make an uncoun-selled offer to settle his claim for $700. The defendant insurer, Hartford, then mailed Felder a draft for $700, but Felder did not endorse it or present it for payment. Felder apparently changed his intention to compromise before the Hartford draft was received or he would have endorsed it. Since his intention on the subject had changed, the concurrence of wills was missing and there was no valid contract. LSA-C.C. art. 1800. It is significant that Hartford’s draft was not an unconditional acceptance of Felder’s offer to settle because Hartford retained the option of refusing payment of the draft. Had Felder accepted the money by endorsing the draft and presenting it for payment, there would have been an assent to the settlement. A non-negotiated draft does not perfect a binding settlement. The majority errs seriously in enforcing a purported compromise agreement under these circumstances.

I respectfully dissent.

       Because we find that even if the draft was not negotiable it nevertheless suffices as a written acceptance of plaintiffs offer, we make no determination as to the negotiability of the draft. However, we do point out that plaintiffs claim that the draft is not negotiable because it contains the words “Payable at the Connecticut Bank and Trust Co., Hartford, Ct.,” is probably not well founded. See Bollich v. Louisiana Bank and Trust Co., 271 So.2d 274 (La.App. 3rd Cir. 1972).


author: DENNIS, Justice.

text:
    Harold J. NAQUIN v. UNIROYAL, INC.
    No. 81-C-1081.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
    Rehearing Denied Nov. 16, 1981.

      Calvin E. Hardin, Jr., of Durrett, Hardin, Hunter, Dameron & Fritchie, Baton Rouge, for plaintiff-applicant.
    Robert A. Hawthorne, Jr., and Richard A. Curry, of Sanders, Downing, Kean & Cazed-essus, Baton Rouge, for defendant-respondent.
   DENNIS, Justice.

This action for worker’s compensation benefits was brought by Harold J. Naquin against his former employer, Uniroyal, Inc. The trial court determined that Naquin was entitled to an award of $39.00 per week for a period of 200 weeks as compensation for a schedule loss under La.R.S. 23:1221(4)(o), for the partial loss of use of his arm. The trial court also awarded Naquin penalties and attorney’s fees. Naquin appealed the trial court’s judgment seeking an increase in compensation benefits and attorney’s fees. The Court of Appeal affirmed. 401 So.2d 384. We granted writs to determine whether the courts below erred in limiting Naquin to compensation for a schedule loss rather than partial disability benefits and whether the award for attorney’s fees was insufficient. 403 So.2d 68.

Naquin was employed by Uniroyal for approximately twenty-four years. During the last six years of his employment, Na-quin served as an Operations Control Coordinator at the Scott’s Bluff Uniroyal Plant in East Baton Rouge Parish. On July 29, 1978, Naquin tripped over some hoses, fell, and injured his left shoulder. He was hospitalized and underwent a recovery period of several weeks during which time he received full pay from Uniroyal. He returned to his former job in early September, 1978, and received the same salary he had received prior to the accident. Six months later, on March 7, 1979, Uniroyal sold the Scott’s Bluff Plant to U. S. S. Chemicals, a division of United States Steel Corporation.

U. S. S. Chemicals eliminated approximately twenty-three jobs, including Na-quin’s. The termination of jobs was due, in part, to a revamping of the employment structure which eliminated many positions, including Naquin’s, and in part to a dismissal of employees whose job performance ratings fell below expectations. Naquin’s rating fell in this category due to chronic absenteeism both before and after his injury. Naquin was eligible for pension benefits and elected to retire effective March 7, 1979. Naquin has not been employed since that date though it is not clear from the record whether Naquin has ever sought other employment.

Naquin contends that the courts below erred in finding that he was only entitled to benefits for a schedule loss pursuant to La.R.S. 23:1221(4)(o). Instead, he claims to be entitled to benefits for partial disability under La.R.S. 23:1221(3) which states, in part, that compensation shall be paid:

“(3) For injury producing partial disability of the employee to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience * *

The trial court, in its oral reasons for judgment, found that Naquin returned to the same work he had performed before his injury; that he was not entitled to recover for total and permanent disability; but that he was entitled to benefits for a schedule loss under La.R.S. 23:1221(4) due to a 10% permanent disability of his arm. The trial court’s oral reasons do not indicate if it considered whether Naquin was entitled to partial disability benefits. The Court of Appeal found that Naquin had “returned to his job with Uniroyal, and performed most of his old tasks, although he was physically unable to perform some, notably, turning valves, climbing vertical ladders, and drawing lines on charts.” The record contains evidence indicating that employees in Na-quin’s position in fact performed many other duties of a physical nature which he is now unable to do. Nevertheless, the appeals court affirmed the trial court’s judgment for the reason that “Naquin’s loss of his job was the result of the change in ownership of the Scott’s Bluff plant, not the result of his injury that he received on the job.”

We reverse the decision of the Court of Appeal because it incorrectly implies that La.R.S. 23:1221(3) requires a partial disability claimant to prove loss of employment due to his work-related injury. The statute clearly provides that an employee is eligible for compensation for a partially disabling work-related injury regardless of whether his employment continues; only the amount of compensation due may be affected by wages actually earned after the injury.

The evidence fully supports the finding of the Court of Appeal that Naquin was physically unable to perform some of his old tasks as a result of his injury. Two of Naquin’s co-workers testified that, in performing the same type of job held by Naquin, they occasionally had to perform manual labor requiring the full use of both arms. One testified that it was customary for supervisory employees to assist a manual laborer in critical or emergency situations or when he “is up to his behind in problems.” The parties stipulated that a third co-worker would provide similar testimony.

A collective bargaining agreement containing language essentially the same as the contractual language in the bargaining agreement in effect at the time of Naquin’s injury, in pertinent part, provides:

“Management personnel will not perform work normally done by members of the Bargaining Unit Except in the following situations:
A. In emergencies.
B. For instruction and training purposes, or performing experimental or developmental work.
C. When supervisory or technical personnel are evaluating, testing, and developing new equipment, processes or procedures.
D. When regular employees are not available, but only for such periods of time as may be necessary to secure qualified employees for the job.
E. When such work is related to the inspection of equipment and/or checking operating efficiency.”

While Naquin’s position was principally supervisory in nature, the exceptions clause in the collective bargaining agreement and the testimony of Naquin and his co-workers demonstrate that because of his work-related disability Naquin cannot perform some acts of manual labor he carried out before his injury. Although those physical tasks were incidental to his supervisory job, they were expected by his employer and important to the effective performance of his work as a supervisor of other workers. That his employer retained him at full pay regardless of his partial incapacity does not make his impairment any less real. Accordingly, we conclude that the significant tasks Naquin can no longer perform were employment duties in which he was customarily engaged when injured, and that because he can no longer carry them out he is entitled to benefits for a partial disability in accordance with the worker’s compensation statute. La.R.S. 23:1221(3).

The Court of Appeal upheld the trial court’s award of $2000 as attorney’s fees for Naquin’s counsel. The factors usually taken into account are the degree of skill and ability exercised, the amount of the claim, the amount recovered for the plaintiff, and the amount of the time devoted to the case. See W. Malone & H. Johnson, Workers’ Compensation Law and Practice, § 389 in 14 Louisiana Civil Law Treatise at 296 (2d ed. 1980). The trial court did not abuse its discretion in fixing the fee considering the circumstances before it and the compensation awarded. Some of the factors in this ease have been altered substantially, however, by further proceedings in two appellate courts and our modification of the decisions below. Consequently, the employee’s attorney’s fee is increased to $4000 as compensation for his services in all courts to date.

The judgment of the Court of Appeal is reversed and the trial court judgment is amended to award the plaintiff partial disability benefits instead of compensation for a schedule loss, attorney’s fees of $4000 in principal sum, and all costs in each court.

APPEALS COURT JUDGMENT REVERSED; TRIAL COURT JUDGMENT AMENDED.


author: PER CURIAM.

text:
    STATE of Louisiana v. Jerry Buddy MORGAN, Jr.
    No. 81-KA-0401.
    Supreme Court of Louisiana.
    Oct. 8, 1981.
    Rehearing Denied Nov. 16, 1981.

       Dixon, C. J., would grant a rehearing.

   PER CURIAM.

Affirmed.

DIXON, C. J., dissents, being of the opinion that no person with an I.Q. of 53 can intelligently plead guilty.


text:
    Lovelace GREENE and Eva Amelia Greene v. Roy GREENE, Warren J. Greene, and Russell Roy Greene.
    No. 81-C-1737.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Lovelace Greene and Eva Amelia Greene, applying for writs of certiorari, or review, to the Court of Appeal, Third Circuit. Parish of Vermilion. 398 So.2d 59.

Denied.

CALOGERO, and MARCUS, JJ., would not consider this application as it is not timely filed. Rule 10, Section 4(b), La.Sup. Ct.Rules.


text:
    STATE of Louisiana, In the Interest of Gerald HICKERSON.
    No. 81-CK-1245.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Gerald Hickerson, through the State of Louisiana, applying for writs of certiora-ri and review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. No. 14529.

Writ denied. Order previously issued by this Court recalled. Judgment of the Family Court ordering relator to be committed to the custody of the Louisiana Department of Corrections is reinstated. See State of Louisiana in the Interest of Kenneth Banks, 402 So.2d 690 (La., 1981).

DENNIS, J., would grant the writ.


text:
    STATE of Louisiana v. Johnnie Lee HINES.
    No. 81-K-1738.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Johnnie Lee Hines, applying for writs of certiorari or review. Parish of Ouachita. No. 39929.

Writ granted. Relator’s conviction is set aside. Ruling of the trial court refusing to quash is reversed. Relator’s D.W.I. conviction of 1/10/79 is constitutionally deficient, State v. Jones, 404 So.2d 1192 (La.1981) and may not be used as an underlying conviction. The case is remanded for further proceedings.


text:
    STATE of Louisiana v. Reginald J. SMITH.
    No. 81-C/K-1720.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re State of Louisiana, applying for writs of certiorari, mandamus and prohibition. Parish of Orleans. No. 189-426.

Writ granted and case remanded to Juvenile Court with instructions to trial judge to enter judgment in favor of the state and against the defendant. La.R.S. 14:75; State v. Spotville, 350 So.2d 1194, 1196 (La. 1977).

WATSON, and LEMMON, JJ., would deny the writ.


text:
    Succession of Anna Gray Sweeney NOE.
    No. 81-C-1774.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Linda McRae Noe Laine, applying for writ of certiorari, or review, to the Court of Appeal, Second Circuit. Parish of Ouachita. 398 So.2d 1173.

Denied.


text:
    MONROE REDEVELOPMENT AGENCY v. Succession of Joseph KUSIN, et al.
    No. 81-C-1775.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Monroe Redevelopment Agency, applying for writs of certiorari, or review, to the Court of Appeal, Second Circuit. Oua-chita Parish. 398 So.2d 1159.

Denied.

BLANCHE, J., would grant the writ.


text:
    The HERTZ CORPORATION, TRUCK LEASING DIVISION v. BOH BROS. CONSTRUCTION CO., INC., Fimis Transfer, Inc. and Hanover Insurance Company.
    No. 81-C-1753.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Boh Bros. Construction Co., Inc., applying for writs of certiorari, or review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 399 So.2d 1281.

Writ denied.


text:
    Navarre Scott TRAYLOR, Sr. v. SHELL OIL COMPANY, et al.
    No. 81-C-1754.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Navarre Scott Traylor, Sr., applying for writ of certiorari, or review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 400 So.2d 342.

Writ denied.

LEMMON, J., would grant the writ.


text:
    Mildred Badie, wife of Nolan Ambrose MARSHALL v. Nolan Ambrose MARSHALL.
    No. 81-C-1757.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Nolan Ambrose Marshall, applying for writs of certiorari, or review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 399 So.2d 1253.

Writ denied.

CALOGERO, and MARCUS, JJ., would grant the writ.


text:
    Harry L. LAYNE v. Gerald L. SCHROEDER.
    No. 81-C-1739.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Gerald L. Schroeder, applying for writ of certiorari or review, to the Court of Appeal, Fourth Circuit. Orleans Parish. 399 So.2d 1262.

Denied.

DIXON, C. J., CALOGERO, and MARCUS, JJ., would grant; the allegation that “the parties specifically understood” does not allege fraud.


text:
    Walter BATISTE, et al. v. IBERIA PARISH SCHOOL BOARD, et al.
    No. 81-C-1721.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Walter Batiste, applying for writs of certiorari or review to the Court of Appeal, Third Circuit. Parish of Iberia. 401 So.2d 1224.

Writ denied.


text:
    G. P. SMITH, et al. v. Sam DUCOTE.
    No. 81-C-1707.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Sam Ducote, applying for writs of certiorari, or review, to the Court of Appeal, Third Circuit. Parish of Avoyelles. 398 So.2d 190.

Denied.

DIXON, C. J. and DENNIS, J. would grant the writ.


text:
    James Donald PIERROTTI and Vickie Rulf Pierrotti v. ASSOCIATED INDEMNITY CORP., Mrs. Manuella N. Torres and Allstate Insurance Company, Louisiana Department of Transportation and Development. Jose FUENTES, Jr., and Ophelia Fuentes v. James Donald PIERROTTI, et al.
    No. 81-C-1717.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Jose Fuentes, Jr. and Ophelia Fuentes, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of St. Mary. 399 So.2d 679.

Denied.

LEMMON, J., concurs, believing the result is correct.

CALOGERO, DENNIS, and WATSON, JJ., would grant the writ.


text:
    Clifton E. HAGOOD, Jr., et al. v. Kenneth E. PICKERING, et al.
    No. 80-C-2592.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Clifton E. Hagood, et al., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 392 So.2d 130.

Denied.


text:
    Gloriadine B. GLADSTONE v. AMERICAN AUTOMOBILE ASSOCIATION, INC., and the State of Louisiana, Office of Employment Security.
    No. 81-C-1923.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re American Automobile Association, Inc., and the State of Louisiana, Office of Employment Security, applying for new remedial writs, to the Fourth Circuit, Court of Appeal. Orleans Parish. 402 So.2d 254.

Granted.


text:
    Phillip JACKSON v. CONTINENTAL CASUALTY COMPANY.
    No. 81-C-1759.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Phillip Jackson, applying for writs of certiorari, or review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 402 So.2d 175.

Granted.


text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. Gordon J. BITTERWOLF.
    No. 81-C-1646.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re State of Louisiana, Through the Department of Highways, applying for writ of certiorari or review to the Court of Appeal, First Circuit. St. Tammany Parish. 401 So.2d 380.

Granted.


text:
    Interdiction of Edna La Croix, Widow of Walter F. POYNOT.
    No. 81-C-1884.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Henry J. Guidry and William M. Duett, applying for writs of certiorari, prohibition and mandamus. Parish of Orleans. No. 578-883.

Denied.


text:
    Mrs. Margaret Brauer EMERY v. Harry R. CABRAL, Jr.
    No. 81-C-1892.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Harry R. Cabral, Jr., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 400 So.2d 340.

Writ denied.

CALOGERO, J., would grant the writ.


text:
    Lanny R. ZATZKIS v. Joseph C. FUSELIER & Waguespack Pratt, Inc.
    No. 81-C-1861.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Lanny R. Zatzkis, applying for writs of certiorari, or review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 398 So.2d 1284.

Denied.


text:
    Wiley J. GATES and Sidney R. Smith v. G.M.S. DEVELOPMENT CORPORATION.
    No. 81-C-1804.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Tab Enterprises, Ltd., applying for writs of certiorari, or review, to the Court of Appeal, Second Circuit. Parish of Oua-chita. 398 So.2d 1296.

Writ denied.


author: GUIDRY, Judge.

text:
    Louella Cain MILLER, Plaintiff-Appellant, v. Virgle E. MILLER, Defendant-Appellee.
    No. 8123.
    Court of Appeal of Louisiana, Third Cireuit.
    March 23, 1981.
    Come & Block, Gerald Block, Lafayette, for plaintiff-appellant.
    Howard Martin, Wm. J. F. Gearheard, Lafayette, for defendant-appellee.
    Before GUIDRY, FORET and DOUCET, JJ.
   MOTION TO COMPEL TRANSCRIPTION OF THE RECORD

GUIDRY, Judge.

The defendant-appellee, Virgle E. Miller, moves to compel transcription of the entire record in the above captioned case. The motion is unopposed.

Plaintiff-appellant, Louella Cain Miller, motioned for and was granted an order for a devolutive appeal on August 5, 1980 from a judgment of the district court of June 2, 1980. Subsequently, plaintiff-appellant instructed and court reporter to only transcribe the testimony of one witness. The defendant-appellee has answered the appeal and now moves in this court for an order compelling the testimony of all the witnesses to be transcribed and placed into the record.

The appellee contends that the appellant has not served him or filed into the record a concise statement of the points in which he intends to rely as required by LSA-C.C.P. Art. 2129, therefore the appellant has not complied with the provisions of the Code of Civil Procedure governing the taking of a limited appeal and the record should include a transcript of all the testimony taken at trial.

LSA-C.C.P. Articles 2128 and 2129 govern form and content of the record on appeal and the procedure for taking a limited appeal:

Art. 2128. Same; determination of content
The form and content of the record on appeal shall be in accordance with the rules of the appellate court, except as provided in the constitution. However, within three days, exclusive of holidays, after taking the appeal the appellant may designate in a writing filed with the trial court such portions of the record which he desires to constitute the record on appeal. Within five days, exclusive of holidays, after service of a copy of this designation on the other party, that party may also designate in a writing filed with the trial court such other portions of the record as he considers necessary. In such cases the clerk shall prepare the record on appeal as so directed, but a party or the trial court may cause to be filed thereafter any omitted portion of the record as a supplemental record. When no designation is made, the record shall be a transcript of all the proceedings as well as all documents filed in the trial court.
Art. 2129. Assignment of errors unnecessary; exception
An assignment of errors is not necessary in any appeal. Where the appellant designates only portions of the record as the record on appeal, he must serve with his designation a concise statement of the points on which he intends to rely, and the appeal shall be limited to those points.

The second sentence of Article 2128 requires an appellant desiring to take a limited appeal to file with the trial court a written designation of which portions of the record he desires to constitute the record on appeal. Article 2129 requires that a concise statement of the points on which the appellant will rely to be served with his designation of a limited appeal.

In the instant case, the appellant did not file a written designation as required by LSA-C.C.P. Art. 2128 nor did he file a statement of the points on which he intends to rely as required by LSA-C.C.P. Art. 2129. The only indication that the appellant wished to take a limited appeal is a handwritten note to the court reporter requesting that only the testimony of one witness be transcribed, which note was never formally filed into the record. No designation or concise statement was ever served on the appellee as required by LSA-C.C.P. Articles 2128 and 2129.

We conclude that due to the appellant’s failure to comply with the provisions of the Code of Civil Procedure governing the taking of a limited appeal, no limited appeal was taken. Therefore, under LSA-C.C.P. Art. 2128 the record on appeal “shall be a transcript of all the proceedings as well as all documents filed in the trial court”.

LSA-C.C.P. Art. 2128 provides “a party or the trial court may cause to be filed thereafter any omitted portion of the record as a supplemental record”. See Fontenot v. Garland, 352 So.2d 251 (La.App. 3rd Cir. 1977), writ denied, 353 So.2d 1339 (La. 1979). The effect to be given to an appellant’s failure to comply with the procedure for taking a limited appeal lies within the sound discretion of the Court of Appeal. Weber v. Press of H. N. Cornay, Inc., 135 So.2d 925 (La.App. 4th Cir. 1962). This court has the authority under LSA-C.C.P. Art. 2132 to order that material omissions in the record be corrected. See Succession of Videau, 228 So.2d 352 (La.App. 4th Cir. 1969); Favrot v. Favrot, 252 La. 462, 210 So.2d 316 (1968).

For the above and foregoing reasons, the defendant-appellee’s motion to compel transcription of the record is granted. The Clerk of Court for the Fifteenth Judicial District Court for the Parish of Lafayette is hereby ordered to complete the record in this case by including therein all of the proceedings as well as all documents filed in the trial court and forward same to the Court of Appeal, Third Circuit, within 60 days from the receipt of this judgment, to be made part of the record on appeal.

MOTION GRANTED.

      . Art. 2132. Same; correction
      A record on appeal which is incorrect or contains misstatements, irregularities or infor-malities, or which omits a material part of the trial record, may be corrected even after the record is transmitted to the appellate court, by the parties by stipulation, by the trial court or by the order of the appellate court. All other questions as to the content and form of the record shall be presented to the appellate court.


author: REDMANN, Judge.

text:
    Robert R. SANDERS v. UNITED DISTRIBUTORS, INC. et al.
    No. 11851.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 24, 1981.
    Rehearing Denied Nov. 20, 1981.

      Sharon A. Perlis, Metairie, for plaintiff-appellee.
    Arthur L. Ballin, Frank C. Dudenhefer, New Orleans, for plaintiffs-appellants.
    Before REDMANN, BARRY and KLIE-BERT, JJ.
   REDMANN, Judge.

Defendant employer appeals from a judgment awarding to a retired employee a pension fund benefit as once erroneously computed and paid rather than as later calculated. The question is whether plaintiff in fact suffered any detriment because of reliance upon defendant’s erroneous representation of the amount of plaintiff’s pension (so that defendant would be obliged to pay the mistaken amount, whether on the civil law theory of venire contra factum proprium non valet or on a theory of promissory estoppel or equitable estoppel or even simple delict).

Defendant’s intent from the creation of the noncontributory pension plan in December 1966 was that the “past employment” element of the pension be based on past earnings and specifically on 1966 or November 1966 earnings. An error in a 1972 amendment substituted 1973 for 1966, however, until a later corrective amendment. The error in this case arose when plaintiff’s benefit was allegedly erroneously computed using his 1973 earnings, resulting in an overstatement to plaintiff of what his pension would be.

Plaintiff’s employment arrangement as defendant’s vice-president and sales manager in 1966 (through 1972) was that he received monthly pay checks totalling $12,-400 plus mandatory “bonuses” each quarter totalling another $11,600, making his guaranteed earnings $24,000, in addition to which he received another bonus in some form of profit-sharing. Although the pension plan worksheet showed only $12,400 as plaintiff’s yearly earnings for 1966 through 1972, it showed $30,231 for 1973; and when in 1974 plaintiff’s health prompted early retirement consideration, that 1973 figure (defendant alleges but does not prove) was erroneously used as the base for calculating the “past employment” portion of plaintiff’s pension. Plaintiff was accordingly told that his pension at age 55 would be $284 monthly with a lump sum value of $43,631. Those figures are now said to be wrong in that the “past employment” portion of the pension was calculated from 1973 instead of 1966 earnings. Nevertheless plaintiff was paid the $284 each month for almost two years before the error was noted. Thereafter plaintiff was notified of the error and thenceforward was paid $120 a month and was informed that the lump sum value of his pension fund had been only $17,950. (The pension plan was finally terminated December 1, 1977 and plaintiff was paid $16,395.46 as the then remainder of the original $17,950, without prejudice to his rights.)

Plaintiff argues that the erroneous $284 figure supplied by defendant caused him to take early retirement at age 55, by creating in him the expectation that that amount would be paid, giving him a reasonably adequate total retirement income when added to his social security benefits and other income he had. Plaintiff argues injurious reliance, contending that he would not have taken early retirement except for defendant’s representation that he would receive $284 monthly.

Defendant argues that the record does not establish detriment to plaintiff because plaintiff could not have continued to work irrespective of his pension amount and therefore suffered no harm by retiring early. Indeed, defendant perhaps could have discharged plaintiff before his 55th birthday on the basis that he was unable to perform his duties. Instead defendant allowed him to come in to the office about half a day for the last several months before the 55th birthday so that he would be able to retire.

Defendant’s factual argument finds support in the record, although there is also support in the record for the hope that plaintiff’s health might in reasonable time have allowed him to return to full employment. Defendant’s legal argument fails, however, because in a contra factum proprium or equitable estoppel theory of recovery there is no requirement of equivalency between detriment and result of mistaken representation, and in a promissory estoppel theory there is no need for equivalency of detriment and promise; and in a delictual theory defendant’s argument would affect not liability but measure of damages. Allowing to the trial judge the basic fact-finding function that is his, Canter v. Koehring Co., La.1973, 283 So.2d 716, we cannot say that he erred in concluding that plaintiff could have continued in his employment for at least some period beyond the day he retired, and that defendant would not have fired him during his recuperative period had he sought to continue, but would have allowed him to continue (or even that, as his doctor’s testimony suggests, his return to reasonable health would have allowed him to continue indefinitely).

Thus there was detriment in his electing, as he testified, to accept early retirement. In contract theory, that suffices to make the implied promise enforceable or the alleged error in the representation unasserta-ble;

In tort theory, if plaintiff’s action be limited to one for delictual damages caused by the fault of defendant’s miscalculating employee, the measure of the damages is the same (save the mitigation factor). The misrepresentation caused plaintiff to lose his $32,000 earnings but to gain a retiree’s ease, and his consent to that exchange with the pension represented to him makes that pension rather than the forgone earnings the correct basis for an award of the difference between the mistaken figure and the correct figure. (We repeat that the correct figure is not established in the record, but we estimate it, from the pension plan formula as we deem it must be interpreted, as nearer to the “mistaken” $284 than to $120.) Had the mistake been discovered before plaintiff retired, or in preparing the first or second pension check, perhaps plaintiff could have been obliged to continue or to return to work in mitigation of damages, and his reasonable damages would have been little or nothing. Or, if he were much younger than 57 years, and in robust health, even after two years (or even today) perhaps he could be told to mitigate damages by returning to work or obtaining other employment. But defendant does not offer a return to its employ and there is a reasonable basis in plaintiff’s age alone (to which his prior health history adds emphasis) for concluding that the possibility of plaintiff’s mitigating his damages is too remote to reduce the award for the alleged difference in pension of $164 a month.

The judgment appealed from therefore rightly found plaintiff entitled to the $283.92 pension or a lump-sum value (as of retirement) of $43,631.03. The judgment errs, however, in awarding both $164.34 monthly for life as the difference between $283.92 and $119.58 and the difference in lump-sum value as well: that would be a double recovery and plaintiff concedes that (if the judgment also awards the cash value difference) he is entitled to the monthly difference only for the period December 1, 1976 (when the monthly benefit was reduced) until December 1, 1977 (when defendant elected, as it had the right, to terminate the monthly benefit by paying him the lump-sum value, although defendant paid the wrong lump sum).

The judgment also errs in the amount it awarded to give plaintiff a lump sum based on $283.93 rather than $119.58. The larger monthly amount had a lump-sum value of $43,631.03 (and the smaller had a value of $17,950) at the date of plaintiff’s retirement at age 55.

But that lump-sum value must be reduced. Any periodic annuity payment, like the monthly payment on a mortgage payable in equal installments, consists in part of interest payment and in part of repayment of principal. Just as the mortgage principal balance is reduced by the principal part of its monthly payments, so is the lump-sum or principal value of an annuity reduced by the principal part of its monthly payments. Because of this mathematically inescapable reduction of the principal or lump-sum value, the (incorrect) $17,950 lump-sum value of plaintiff’s pension as of the date of his retirement had been reduced to $16,394.46, or to 91.3396% of its original value as of December 1, 1977 when the lump sum was paid. The same inescapable mathematics would have reduced the (correct) $43,631.03 original value to $39,852.41 as of December 1, 1977, and that is the amount to which plaintiff was then entitled rather than the original value of $43,631.03. Because plaintiff received $16,394.46, he is entitled to $23,456.95 ($43,631.03 less $16,-394.46), with interest from December 1, 1977 (rather than the earlier date of judicial demand).

Amended to award $164.34 monthly from December 1, 1976 until December 1, 1977 with legal interest on each installment from due date, plus $23,456.95 with legal interest from December 1, 1977 and all costs.

      . There was in fact a trust that managed the pension funds and payments, which would present a further problem in that all of its funds belonged, in effect, to its beneficiaries in determinate amounts (although defendant might have been obliged to contribute any further amounts needed). It was stipulated, however, that the defendant employer would be treated as the proper defendant, and that the issues “are, A, the amount of benefits ..., B, the question of estoppel .... ”

      . This writer has not found an instance of Louisiana’s expressly utilizing the civil law principle venire contra factum proprium non valet. Litvinoff, Louisiana Civil Law Treatise, Obligations, I, § 88, n. 32, translates “no one is allowed to go against (the consequences of) his own acts,” and cites the principle in disputing the assertion that estoppel is an exclusive development of the common law. “It cannot be denied that this principle underlies many articles of the civilian codes, such as LSA-C.C. art. 1791.” (See also § 135’s discussion of reliance in the related context of subjective will and objective declaration and II § 94’s bona fide purchase doctrine.)
      Puig Brutau, Estudios de Derecho Comparado (1951), 97-136, (cited by Litvinoff) provides a comparative law discussion of the principle, la doctrina de ios actos propios (the doctrine of one’s own acts). He perceives a “substantial identity,” p. 106, of venire contra factum pro-prium non valet and estoppel (although estop-pel is broader, p. 114, and promissory estoppel “could be studied in comparison with the continental doctrine of culpa in contrahendo,” p. 124). The principle “is founded on [the notion] that it is not licit [for one] to enforce a right in contradiction to one’s previous conduct, when that conduct, interpreted in good faith, would justify the conclusion that the right does not exist or will not be enforced,” p. 111. The constitutive elements of the principle (the doctrine of one’s own acts) are “a) Certain conduct by one party which b) may have engendered a situation contrary to reality, that is, one [merely] apparent and [yet], by means of that appearance, capable of influencing the conduct of others; and c) may be the basis for trust [confi-anza; reliance?] by another party who may have proceeded in good faith and therefore may have acted in a manner that would cause him a detriment if his trust should remain frustrated,” p. 112.
      There are many Louisiana cases that discuss estoppel, but they typically do so in the context of refusing it effect, as by declaring estoppel not favored in law or inapplicable for lack of injurious reliance (in either “promissory estop-pel,” Whitehall Oil Co. v. Boagni, 1969, 255 La. 67, 229 So.2d 702, or “equitable estoppel” to deny a previous representation, Wilkinson v. Wilkinson, La. 1975, 323 So.2d 120). The parties to the present litigation appear to accept that, if injurious reliance exists, liability results from an estoppel theory.
      If a mistaken representation (by one under a duty to provide correct information) be treated as “fault” within La.C.C. 2315 for purposes of a delictual action, an element of that action is that the fault (the misrepresentation) cause the injury (the retirement with inadequate pension).
      Thus, whatever the theory of recovery, plaintiff must prove something akin to injurious reliance.

      . Defendant’s calculation of $120 a month (and $17,950) was based on its interpretation of its own pension plan’s definition of “earnings”: “the total net earnings received from the employer during any month, excluding bonuses and other forms of extra compensation.” Defendant excluded not only plaintiffs profit-sharing bonus, but his mandatory “bonuses” as well, as “bonuses and other forms of extra compensation” for purposes of calculating his “earnings,” resulting in his “past employment” and the first five years of the “future employment” portion of the pension’s being based on $12,400 earnings notwithstanding that plaintiffs guaranteed earnings were $24,000 each of those years. We here note the more probable interpretation of that contract is that “bonuses” means only “extra compensation” in addition to regular earnings, because the phrase “bonuses and other forms of extra compensation” strongly so suggests. We would thus reject the $120 calculation because based on only $12,400 rather than the $24,000 guaranteed earnings.
      Defendant’s president in 1973 agreed with plaintiff that it was unfair that plaintiff’s pension be calculated on the basis of his every-month pay checks without any benefit for his guaranteed quarterly bonuses. Plaintiff’s own subordinates were being treated as having higher “earnings” when in fact earning much less. Defendant’s president therefore caused to be written a letter to notify the plan’s actuary that correct earnings for plaintiff for five years before 1972 were $24,000. That letter did not order a like change in the 1966 earnings, however, which determined the “past employment” portion of the pension for plaintiff’s 21 years before the plan began and which, as we have just explained, should also have reflected plaintiff’s true “earnings” of $24,000 annually. Furthermore, the five years ordered to be changed somehow remained unchanged notwithstanding that the actuary acknowledged the letter ordering the change. We are satisfied that the $120 calculation is based on these erroneous foundations, and that the result of a correct calculation would be nearer to $284 than to $120.

      . Defendant’s principal support is plaintiffs application to the Department of Health, Education and Welfare for disability insurance benefits in January 1975, and that Department’s determination of March 4, 1975, concluding that plaintiff was indeed disabled and had not engaged in “significant gainful activities” since September 3, 1974. Plaintiff also requested a waiver of VA premiums for disability as of February 4, 1974, and a private insurer conceded plaintiffs total disability prior to November 4, 1974 (the month in which occurred the allegedly erroneous representation of his employer’s retirement benefit.)
      It cannot be disputed that plaintiff was at least temporarily totally disabled by a heart condition (including a 1974 heart attack) requiring open heart surgery on April 25, 1974, as a consequence of which he did not attempt to return to work until September 1974. Thereafter he returned for only a few hours a day (sometimes having to leave).
      Nevertheless plaintiff’s cardiovascular surgeon expressed the view that plaintiffs post-surgical progress was satisfactory, and the trial judge did have this evidence to support a conclusion that at least a substantial chance existed for plaintiff’s return to employment. By trial time, the trial judge was “impressed with the demeanor of the plaintiff, who spoke in a clear and controlled tone of voice and appeared to be in good health.”


text:
    Ann COOPER v. HIBERNIA NATIONAL BANK et al.
    No. 12037.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1981.
    Rehearing Denied Nov. 20, 1981.

      A. D. Freeman, Satterlee, Mestayer & Freeman, New Orleans, for plaintiff-appellant.
    Liskow & Lewis, Edward J. Gay, III, Deborah Bahn Price, New Orleans, for Hibernia Nat. Bank.
    John T. Cooper, New Orleans, in pro. per.
    Before REDMANN, SCHOTT and KLIE-BERT, JJ.
   REDMANN, Judge.

At one point in a long-litigated domestic relations dispute, separated spouses (now divorced) deposited the $29,000 proceeds from a house into a “both signatures required” savings account with defendant Hibernia Bank. Tax levies against the ex-husband alone, totalling $22,711, were satisfied out of that account. The ex-wife now sues the bank and the ex-husband for an accounting and a money judgment “for her share” of the account. The trial court transferred her demand against the ex-husband to the court in which an action for partition of their community is being tried and dismissed the claim against the bank. On this appeal the ex-wife argues only that the action against the bank should not have been dismissed. We disagree except that we amend to make the dismissal without prejudice.

Although a trial court may have the authority to piecemeal partition a community (see Cookmeyer v. Cookmeyer, La. 1977, 352 So.2d 232, on remand La.App. 4 Cir.1978, 354 So.2d 686), this case presents a more complex question.

Here the separated spouses and the bank have a contractual agreement that does not allow one spouse to withdraw money (as, in effect, the ex-wife herself seeks to do by this lawsuit), but requires the signatures of both. The ex-wife complains that the bank has let the ex-husband deplete the account (by paying tax levies against him from that two-signature account rather than by first exhausting his own one-signature accounts). That depletion would seem to be a breach of the bank’s contract, as might also the bank’s failure to notify the ex-wife of the tax levies.

The posture of this case does not require the decision of the bank’s liability to the ex-wife. We assume, for this discussion, that the bank is liable for whatever loss the ex-wife suffered by reason of the bank’s giving her funds to pay her ex-husband’s separate tax levy.

The presumption on a joint bank account (and therefore also on a two-signature account) is that it is owned half by each depositor and an IRS levy against one of the two depositors does not entitle the IRS to the half of the funds belonging to the other depositor. Bishop v. Warren, 270 F.Supp. 156 (E.D. Wash. 1967); see also Carter v. U.S. ex rel. D.I.R., 399 F.2d 340 (5 Cir.1968) (co-owner’s interest in land not subject to seizure); Lapp v. U.S., 316 F.Supp. 386 (S.D. Fla. 1970) (tenancy by the entireties). Under the Internal Revenue Code of 1939 § 3690, authorizing “distraint upon the . . . bank accounts of the person delinquent,” a joint bank account “as tenants by the entireties” (described as bearing significant similarities to our ownership in indivisión) was not subject to distraint, Raffaele v. Granger, 196 F.2d 620 (3 Cir.1952), and a levy upon joint venturers’ property, for tax liability of one venturer alone, was void, Stuart v. Willis, 244 F.2d 925 (9 Cir. 1957). Presumably, even if the bank in our ease was not itself obliged to notify the IRS that the account in question was a two-signature account (rather than deliver its funds to the IRS as if the ex-husband’s alone), the ex-wife could have saved at least half and possibly all of the account from seizure for the ex-husband’s taxes had she been notified in time to dispute the question with the IRS. (She retains, apparently, the right to obtain the return from the IRS of any of her funds improperly levied; Bishop v. Warren, above.)

The problem in this case is that the ex-wife has not shown (and perhaps cannot show at this point) the damages that she has suffered from the bank’s breach of contract. The evidence indicates that neither ex-spouse would consent to the division of these funds, and that the deposit was in effect a pledge of the funds by each ex-spouse to the other to secure indebtedness that might result from the ultimate accounting for the rest of the community. The contract with the bank was also a contract between the ex-spouses that neither would touch those funds without the other’s consent until a final partition of the community distributed them.

That final partition has not yet been completed (although, we are informed by counsel, there has been substantial movement towards that end). When the partition is completed (including, as the trial judge aptly pointed out, this bank account containing the proceeds of the community’s house), if the ex-wife is owed a balance that is not otherwise paid she may then seek to recover from the bank. As of today, however, she has no cause of action against the bank. The judgment appealed from is affirmed but amended to dismiss without prejudice the action against the bank.

      . Our defendant bank cities U.S. v. Third Nat. B. & Tr. Co., M.D. Pa. 1953, 111 F.Supp. 152, in arguing that it had no choice but to turn over the two-signature account funds to the IRS under penalty of liability for the amount of the levy. But that case is distinguishable. There the amount of the levy was only $307, and the balance in the one-signature “and/or” account “with the right of survivorship” was $2,293. Furthermore, the tax debtor also had a $151 account in her name alone. The bank’s refusal to pay the $307 levy is not explained. In any event that case is not controlling because to honor a $307 levy by payment from the tax debtor’s $2,293 “and/or” account with another person is to turn over far less than the tax debtor’s presumptive half of the account, while to pay $22,711 out of about $30,000 is to turn over far more than the tax debtor’s (arguably) presumptive half of our two-signature account.


author: KLIEBERT, Judge.

text:
    Clarence J. KELLY v. VIOLET PACKING COMPANY and United States Fidelity & Guaranty Insurance Company.
    No. 12531.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1981.
    Rehearing Denied Nov. 20, 1981.

      Law Offices of Martin L. Broussard, Jr., Martin L. Broussard, Jr., New Orleans, for plaintiff-appellant.
    Montgomery, Barnett, Brown & Read, Christopher Kosciuk, New Orleans, for defendants-appellees.
    Before REDMANN, SCHOTT and KLIE-BERT, JJ.
   KLIEBERT, Judge.

Clarence Kelly, plaintiff (hereinafter “Kelly”) was a dump truck driver for Violet Packing Company (hereinafter “Violet Packing”).

On two separate occasions during March, 1977, Kelly experienced falls while in the course and scope of his employment. The falls, approximately one week apart, occurred while Kelly was getting out of his dump truck. The first fall involved falling onto a pile of shells and the second fall involved falling backwards onto the truck’s running board. On October 18, 1977, Kelly underwent surgery. A laminectomy was performed at the L5-S1 level. Additionally, due to complaints and vague symptoms, the L4-L5 area was explored and the disc examined.

In June, 1978, Kelly was involved in a minor automobile accident where the front fender of his automobile was struck by another driver. Despite continuing their workmen’s compensation payments, Violet Packing and their insurer, United States Fidelity and Guaranty Company (hereinafter “USF&G”), defendants, discontinued medical benefits claiming Kelly’s continuing pain and the necessity for additional surgery, were caused by the automobile accident of June 1978. Kelly sought and obtained a hearing to have the trial court order defendants to provide medical benefits under the workmen’s compensation statute. After a hearing, the court declined to order defendants to guarantee medical payments and dismissed the rule. Kelly appeals.

The issue on appeal is whether plaintiff has proven his present medical condition was caused wholly or in part by his job-related accidents rather than exclusively by the subsequent automobile accident. The only evidence introduced was Kelly’s testimony and that of his treating physician, Dr. Watermeier.

Kelly testified to being in an automobile accident in June, 1978. He related how another automobile had run a red light and had struck his automobile in the front fender, but he says he was not injured in this accident. Kelly denied having any other injuries or accidents since March, 1977, and stated that Dr. Watermeier had been telling him for over a year that he needed another operation. Kelly stated that even though Dr. Watermeier operated on his back in September, 1977, he has had constant back pain, and has been on constant medication since that time and has become addicted to pain medication.

On cross examination, Kelly admitted that after the operation and before the automobile accident he had told Dr. Water-meier he was feeling a little better and didn’t have pain on occasions. He testified that every time he visited the doctor he had told him he was in pain. Kelly further stated that pain was just as bad before the automobile accident as after the accident. Regarding the automobile accident, Kelly stated the car which had struck him was travelling approximately 25 to 30 miles per hour when it hit the front fender on the driver’s side and that his vehicle was travel-ling approximately 30 miles per hour at the time of the impact.

The deposition of Dr. John Watermeier was introduced into evidence in lieu of his testifying at the hearing. Dr. Watermeier, the treating physician, testified to his treating Kelly since August, 1977. In October, 1977, Dr. Watermeier operated on Kelly for a lumbar laminectomy and related that Kelly had done well for three to four months after surgery. Thereafter, Kelly started having more pain, particularly left leg pain. His doctor testified he treated him “with all kinds of things, medications, electrical nerve stimulator, gave him an epidural anesthetic block in his back,” all prior to the auto accident. After the automobile accident, Kelly informed Dr. Watermeier his back and leg were hurting him even more.

A myelogram performed in May, 1979 showed no evidence of any new injuries, while a myelogram performed in December, 1979 indicated a ruptured disc at the L4-L5 level. Dr. Watermeier felt Kelly needed another myelogram to determine if Kelly had a new ruptured disc or had aggravated his old disc problem, or if he needed a spinal fusion as a result of the initial operation. Dr. Watermeier further stated Kelly could have these symptoms and still need a spinal fusion without any intervening injury or trauma.

Dr. Watermeier testified to Kelly being on “heavy medication” since the onset of treatment in August, 1977, and it was his present diagnosis that Kelly had a ruptured disc at the L4-L5 level and, given the previous surgery at the L5-S1 level, he believed Kelly needed a spinal fusion from the fourth lumbar level to the sacrum region. Since all of Kelly’s symptoms had been “pretty specific” and had not changed, Dr. Watermeier felt all were due to the job-related injury of 1977.

On cross-examination, Dr. Watermeier admitted examining the disc at the L4-L5 region during the first surgery and from this examination concluded it appeared normal and did not require removal. Dr. Wat-ermeier further admitted that, even though Kelly reported back and leg pain in his post-operative (but pre-accident) visits, such visits are consistent with a patient’s normal post-operative course. During the visit of June 30, 1978, Dr. Watermeier noted Kelly had “aggravated his back” and prescribed heavier medication. It was further established that, in Kelly’s visits with Dr. Water-meier for two months prior to the automobile accident, Dr. Watermeier made no notations of muscle spasms. However, muscle spasms were noted in visits subsequent to the automobile accident. In conclusion, Dr. Watermeier stated he ascribed eighty percent of Kelly’s present problems to his work-related injury and twenty percent to the automobile accident of June, 1978.

In essence, it was Dr. Watermeier’s opinion that Kelly had a disc injury at L4-L5 prior to the automobile accident. The shaking up and twisting of Kelly’s body aggravated the injury and caused it to come to light.

Dr. Watermeier’s testimony was clearly uncontradicted. In his professional opinion, it was more probable than not the initial injury of March, 1977 was the cause if Kelly’s present medical problems. The defendant submitted no testimony. Instead, it relied on argument of counsel to contradict Dr. Watermeier’s opinion.

The trial judge denied the plaintiff’s request, but gave no written reasons for the denial. We believe he erred.

Hall v. Great Atlantic and Pacific Tea Company, Inc., 297 So.2d 527 (4th Cir. 1974), writ refused 300 So.2d 842, at page 530, states the burden of proof required in a workmen’s compensation case as follows:

“The plaintiff in a workmen’s compensation case has the burden of proving every element of his action, including causation of the claimed disability, by a preponderance of the evidence. Proof is sufficient to constitute a preponderance when the evidence, taken as a whole, shows that the fact or causation sought to be proved is more probable than not.” (Citations Omitted)

In our opinion the evidence adduced below preponderates strongly in favor of the conclusion that the initial injury of March, 1977 was more probable than not the cause of Kelly’s present medical problems.

The uncontradicted testimony of Dr. Watermeier was that Kelly’s symptoms have not changed since 1977, that Kelly has never reached a point where he could return to work since March, 1977, that Kelly had pain after the initial operation of September, 1977 and for months before the accident of June, 1978, and that it was his professional opinion that the present injury was there prior to the automobile accident and the aggravation caused by the automobile accident caused it to come to light. The defendant sought to contradict this.

Appellees argue that Kelly’s subsequent automobile accident was the sole cause of the subsequently discovered L4-L5 disc rupture. However, Dr. Watermeier’s un-contradicted testimony was that Kelly’s problem at the L4-L5 level was eighty per cent work related and twenty per cent to the automobile accident of June, 1978. Therefore, the best that can be said about the accident of June, 1978 is that it aggravated the prior injury.

Aggravation of a claimant’s condition suffered in a subsequent accident is not, in itself, a reason to deny him compensation benefits to which he is otherwise entitled. Deville v. Townsend Bros. Construction Company, 284 So.2d 110 (3rd Cir. 1973), writ denied 286 So.2d 367. To deny compensation benefits, the employer must show by a preponderance of the evidence that it was more probable than not that the subsequent accident was the cause in fact of the present injury.

Since defendant-appellee has adduced no evidence to meet this burden and since plaintiff had adduced testimony which causally connects plaintiff’s present physical condition to the injury of March, 1977, then the subsequent aggravating accident does not preclude Kelly from full compensation benefits, including the necessary medical treatment sought herein.

The demand for penalties and attorney’s fees is rejected since weekly compensation benefits have been paid to Kelly since the occurrence of disability.

Accordingly, the judgment of the trial court is reversed and it is now ordered that there be judgment in favor of plaintiff and against defendant for necessary medical expenses and court costs.

REVERSED AND RENDERED.